Aloha kakou,
I was just working on an edited version of this post, taking out the little arrows, and reformatting the spacing so that it was easier to read. However, I just lost it. Auwe!!! I am going to send this version now to the list, and work on an edited version to post later. This analysis is just too important to keep to myself.
Mahalo!

FORWARDED TEXT:

David Ingham wrote:
> >
> >
> > Below is a description of the technical stuff re:
> > S3064 and S147. In this
> > note the difference and confusion between the two
> > are explained including
> > why those news papers who stated that one bill
> > replaced the other are wrong.
> >
> > This principal difference in the language between
> > the two is in Section 8. I
> > will send you analysis and comment on the difference
> > in the language between
> > the two versions by Monday
> >
> > Mahalo for all you do
> >
> >
> > Aloha kakou,
> >
> > Here's the deal on S3064 as I know it:
> >
> > The S3064 was introduced by Akaka on May 25. However
> > this amendment was
> > written and publicly anounced back in September of
> > '05. A copy of it was
> > availble in PDF format on Akaka's web site from
> > september until a few few
> > weeks ago . It also was featured or mentioned in Ka
> > Wai Ola back around Sept
> > of '05.
> >
> > (I first heard of this version when Ku forwarded and
> > e-mail from Ikaika)
> >
> > S3064 is now available at HTTP://thomas.loc.gov type
> > in S3064,click the
> > "bill number" button and hit search. Click on
> > "printer freindly version" to
> > scroll thorugh the bill.
> >
> > You will recall that after the Indian affairs
> > committee reported S147
> > favorably back in July '05 as an amendment in the
> > form of a substitute (this
> > version that came out the IAC last July is S147RS)
> > that around the same
> > time, in July, the Justice Department came out with
> > a wish list criticizing
> > S147.
> >
> > S3064 was written between the July '05 Justice
> > department criticism of S147
> > and Sept when the "substitute amendment " that is
> > now S3064 was anounced
> > publicly.
> >
> > Below is the legislative history of S147 with
> > comments by me and links to
> > the congressional record it is important to take a
> > look a it so see the
> > sequence of events.
> >
> > The July justice department criticism included four
> > main points that were
> > addressed in what became and is now S3064. These DOJ
> > Concerns were:
> >
> > Potential impact on military operations in Hawaii
> > Gambling
> > Potential claims
> > and Criminal Jurisdiction
> >
> > the July 13, 2005 DOJ Letter to John McCain
> > expressing these concerns, as
> > it appeared in the Hawaii Reporter on July 20 is
> > reproduced in full below.
> >
> > You will note from the congressional record summary
> > below that July 13, when
> > the DOJ expressed these concerns, is three or four
> > months after S147 was
> > reported out of the Indian Affairs committee. S147
> > does not address the DOJ'
> > s concerns contrary to the impression Inouye's
> > statement in todays Star
> > Bulletin might have given. From the Star bulletin:
> > "Inouye said the White
> > House was ³grossly disingenuous² in its letter
> > opposing the original version
> > of the bill because everyone knew the bill had been
> > reworked to address all
> > concerns."
> >
> > The "reworked" version addressing the DOJ's July '05
> > concerns is S3064, not
> > S147" S147 was the subject of the cloture motion
> > and is not the version
> > addressing the DOJ's concerns as one might conclude
> > from Inouye's statement.
> >
> > Many newspapers reported that S3064 had replaced
> > S147 when S3064 was
> > introduced on May 25 2006. This was simply not true.
> > one bill did not
> > replace the other, rather, both bills existed and
> > both still exist both
> > before and after the cloture motion vote earlier
> > today.
> >
> > S3064 is alive and well and sitting in the wings,
> > however, neither S147 nor
> > S3064 addressed the DOJs concerns regarding
> > constitutional questions.
> >
> > But neither S3064 nor S147 addressed the
> > constitutional issues raised in
> > both the July 13, 2005 and the June 7, 2006 DOJ
> > letters.
> >
> > In reading this evening for this reply I came across
> > the following on
> > Akaka's web site which may shed some light on what
> > the game plan was if the
> > cloture motion was successful:
> >
> > "Senator Akaka is working with Majority Leader Bill
> > Frist and Democratic
> > Leader Harry Reid on the final details regarding the
> > bill¹s consideration by
> > the Senate. Senator Akaka will be offering a
> > substitute amendment when S.
> > 147 is brought to the floor. The substitute
> > amendment reflects agreements
> > reached between Hawaii¹s Congressional delegation
> > and Governor and officials
> > from the Office of Management and Budget, Department
> > of Justice, and White
> > House. The substitute amendment addresses the four
> > concerns outlined by the
> > United States regarding liability of the United
> > States, military readiness,
> > civil and criminal jurisdiction and gaming."
> >
> > It appears the game plan was to introduce S3064 as
> > an amendment replacing
> > S147 in debate if the cloture motion succeeded. Not
> > sure what the game plan
> > is now. Daniel Inouuye was quoted in one articel I
> > read today as stating he
> > was not prepared to reveal his stategy to get the
> > bill passed. Also Akaka
> > statred in another article today that he would
> > continue working to get the
> > bill passed.
> >
> > I don't think there is time for S3064 to pass both
> > the House and Senate
> > before the end of the term. And there is no chance
> > as I see it for S147 to
> > come up again in this congress.
> >
> > However, both of these bills could come up in the
> > next congress especially
> > if there is a Democratic majority in either the
> > House or Senate.
> >
> > You may recall that I said in lihue years ago that
> > they will keep trying....
> > I still believe that... I believe there will be
> > another attempt to get
> > Hawaiians to accept federal recognition and in so
> > doing forefit thier rights
> > as the subjects of an unlawfully dismantled
> > government.
> >
> > The key here is to get every Hawaiian to understand
> > that these bills are not
> > an acheivement, they are surrender on the enemy's
> > terms. At the same time it
> > is important to keep the republicans opposed to the
> > bill for the reasons
> > stated in Yesterday's Justice Department letter. At
> > the same time this
> > period between the next congress and now should be
> > used to consolidate
> > Hawaiians as I see it. Keep the doors open and have
> > the leis ready for those
> > who are willing to cross over.
> >
> > And In case I didn't mentionit before , S3064 is
> > devastating to hawaiians
> > claims. Unlike S147, it makes Hawaiians claims non
> > justicable in U.S. Courts
> > among other things. See Section 8 of S3064 for
> > more.
> >
> > I will forward the voting record on the cloture
> > motion tomorrow morning
> > after it is published in the on line congressional
> > record.
> >
> > elua keneta
> >
> > david
> >
> > let me know if you need more on this subject...there
> > is plenty more to tell.
> >
> >
> >
> > U.S. Department of Justice on the Akaka Bill
> > By William E. Moschella, 7/20/2005 12:30:59 PM
> >
> > Editor's Note: The following letter from the U.S.
> > Department of Justice,
> > Office of Legislative Affairs, Office of the
> > Assistant Attorney General, in
> > Washington, DC, was sent to Sen. John McCain,
> > chairman of the Committee on
> > Indian Affairs, United States Senate on July 13,
> > 2005, regarding the Akaka
> > Bill, published as sent.
> >
> > Dear Mr. Chairman:
> >
> > The Department of Justice is pleased to provide the
> > views of the
> > Administration on S. 147, the ³Native Hawaiian
> > Government Reorganization Act
> > of 2005.² The Department has identified four serious
> > policy concerns raised
> > by the proposed legislation that the Administration
> > believes can and should
> > be addressed and resolved by changes to the text of
> > the bill.
> >
> > First, the legislation should include explicit
> > language clearly precluding
> > potential claims for equitable, monetary or
> > Administrative Procedures
> > Act-based relief, whether asserting an alleged
> > breach of trust, calling for
> > an accounting, or seeking the recovery of or
> > compensation for lands once
> > held by native Hawaiians. The absence of such
> > language in the current
> > legislation, especially in combination with the
> > reference in section 2(21)
> > (B) of S. 147 to the ³the lands that comprise the
> > corpus of the trust² and
> > the unusually long statute-of-limitations period for
> > claims against the
> > United States provided for in section 8(c) (2),
> > could invite a flood of
> > litigation and could create the prospect of enormous
> > unanticipated liability
> > for the United States and the State of Hawaii. In
> > addition, because there
> > exist some legal theories that might be construed to
> > create potential claims
> > that could not be precluded under an amended S. 147,
> > the legislation should
> > include a limitations period that is significantly
> > shorter than the proposed
> > 20-year period now contained in section 8(c) (2),
> > and should bar courts from
> > using the continuing-wrong and equitable-tolling
> > doctrines, which are
> > sometimes employed to expand statutes of limitations
> > fixed by Congress.
> >
> > Second, S. 147 should be amended to make clear that
> > the consultation process
> > contemplated in sections 5(b) and 6(d) may not be
> > applied so as to interfere
> > in any way with the operation of U.S. military
> > facilities on Hawaii or
> > otherwise affect military readiness. The potential
> > for such interference is
> > well illustrated by litigation currently pending in
> > the U.S. Court of
> > Appeals for the Ninth Circuit (Ilioulaokalani
> > Coalition v. Rumsfeld)
> > challenging a proposed base expansion.
> >
> > Third, the legislation should state clearly whether
> > the federal Government,
> > the State of Hawaii, or the native Hawaiian
> > governing entity will have
> > jurisdiction to enforce criminal laws on native
> > Hawaiian lands. It is the
> > Department¹s experience that a lack of clarity on
> > this question can generate
> > significant confusion and litigation. Similarly, the
> > legislation should make
> > clear that the proposed native Hawaiian governing
> > entity will not be
> > eligible to petition the Interior Department to take
> > land into trust under
> > the Indian Reorganization Act (which could have
> > uncertain jurisdictional
> > consequences, in addition to tax consequences for
> > Hawaii).
> >
> > Fourth, the legislation should clearly provide that
> > the Indian Gaming
> > Regulatory Act will not apply to the native Hawaiian
> > governing entity, and
> > that the governing entity will not have gaming
> > rights.
> >
> > As you know, there are also questions concerning the
> > constitutionality of
> > the legislation. There is a substantial, unresolved
> > constitutional question
> > ³whether Congress may treat the native Hawaiians as
> > it does the Indian
> > tribes,² Rice v. Cayetano, 528 U.S. 495, 518 (2000),
> > and hence whether
> > Congress may establish and recognize a native
> > Hawaiian governing entity, as
> > S. 147 would do. In Rice, the Supreme Court noted
> > that whether native
> > Hawaiians are eligible for tribal status is ³a
> > matter of some dispute² and
> > ³of considerable moment and difficulty.² Also note
> > that the proposed
> > legislation would require the Secretary of the
> > Interior to appoint only
> > native Hawaiians to the nine-member Commission that
> > would certify the roll
> > of members of the native Hawaiian community. This
> > appointment requirement
> > also raises a constitutional concern, which could be
> > remedied by instead
> > requiring only that appointees have knowledge and
> > expertise about Native
> > Hawaiian issues.
> >
> > The administration stands ready to work with
> > Congress on specific language
> > to address and resolve each policy issue discussed
> > above, as well as other
> > technical issues raised by S. 147.
> >
> > Thank you for your interest in our views on this
> > legislation. The office of
> > Management and Budget has advised that there is no
> > objection to the
> > submission of this report from the standpoint of the
> > President¹s program. If
> > we can be of further assistance in this matter,
> > please do not hesitate to
> > contact this office.
> >
> > William E. Moschella is an Assistant Attorney
> > General with the U.S.
> > Department of Justice.