by Andrew Walden

Desperately fighting for the support of the Akaka Gang, the Schatz and Hanabusa camps seek to outdo each other in hare-brained schemes to invent the Akaka Tribe.  And the Star-Advertiser editorial board has been suckered by the rhetoric.

An August 13, 2013 Star-Advertiser editorial, “Obama can act on sovereignty” asserts that “the 1994 Federally Recognized Indian Tribe List Act provides administrative procedures to allow an American Indian group to be federally recognized."

This is false.

The 1994 Act does not create any new procedures for tribal recognition.  It corrects an error by the US Department of the Interior and returns two small Indian tribes—each previously recognized by Act of Congress--to the list of tribes recognized by the US government after the bungling DoI left them off the list.  In doing so, the 1994 Act recites the following “Findings” (numbers added for clarity):

"Indian tribes presently may be recognized by (1) Act of Congress; (2) by the administrative procedures set forth in part 83 of the Code of Federal Regulations denominated ‘Procedures for Establishing that an American Indian Group Exists as an Indian Tribe;’ or (3) by a decision of a United States court."

Of course even small children learn that “Findings” are not new creations of law but are taken from existing law--leading this writer to wonder who is whispering plainly false legal history in the ears of Star-Advertiser editors.  Or is this just amateur hour?

If one ignores this error, the next question is how the three possible methods might apply to Hawaii.  Here are the answers:

(1) Congress has rejected the Akaka Bill for over a decade now and currently no form of the Akaka Bill is before Congress.

(2) Hawaii is specifically excluded from the Part 83 process. 

(3) The courts have not ordered creation of an Akaka Tribe nor have they been asked to.  In the Rice v Cayetano decision, the 7-2 US Supreme Court rejected Hawaiians-only OHA elections.

Here is the key language from Part 83:

“This part applies only to those American Indian groups indigenous to the continental United States which are not currently acknowledged as Indian tribes by the Department. It is intended to apply to groups that can establish a substantially continuous tribal existence and which have functioned as autonomous entities throughout history until the present.”

“Continental United States means the contiguous 48 states and Alaska.”

Therefore, under the existing Part 83 language, even if one buys the absurd idea that Hawaiians are a tribe, the Akaka Tribe is not eligible for the Part 83 process because Hawaiians are not “indigenous to the contiguous 48 states and Alaska.”

Interestingly the Star-Advertiser editors do not mention the fact that Part 83 is currently under revision and public comment is now open.  (The revisions have nothing to do with Hawaii but come in response to calls by gaming tribes to undo the effect of the US Supreme Court ‘Patchak’ decision which allows private citizens to challenge fee-to-trust conversions of land purchased by Indian tribes.  Such conversions allow tribes to buy land outside an existing reservation, place it under their legal jurisdiction, and build a casino or other enterprise which would have otherwise been prohibited by state or municipal law.)

The Star-Advertiser editors have no excuse for not knowing this.  As this writer explained July 29, 2013:

At a March 19 hearing of the House Subcommittee on Indian and Alaskan Native Affairs, Department of the Interior Assistant Secretary for Indian Affairs Kevin K. Washburn responded to questions from Hanabusa and Samoa Rep Eni Faleomavaega: "Our regs now leave out Native Hawaiians. We are not able to consider Native Hawaiians under our current regs.”  According to Washburn’s written testimony, in which he did not mention Hawaii, the Part 83 process focuses on rectifying administrative errors.  Said Washburn:

“The Part 83 Process is used by the Department to acknowledge Indian tribes that are not currently acknowledged as Indian tribes by the Department. The Department may also reaffirm a nation-to-nation relationship with tribes by rectifying previous administrative errors by the Bureau to omit a tribe from the original Federal Register list of entities recognized and eligible to receive services from the Bureau of Indian Affairs or by resolving litigation with tribes that were erroneously terminated.”

After Washburn’s April 24 testimony before the Senate Indian Affairs Committee, in which he mentioned neither Part 83 nor Hawaii, Schatz released a statement emphasizing his desire to pass the Akaka Bill, making no mention of “executive branch authority”, and thanking Washburn for his support. 

Washburn then authored the ‘Preliminary Discussion Draft’ of potential revisions to Part 83 which retains the limitation to “the contiguous 48 states and Alaska.” 

Can “Obama act on sovereignty” outside of the Part 83 process which was itself created by Act of Congress?  No.  The US Constitution Article I, Section 8 enumerates that power among those granted to Congress:

“Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes.”

OHA is the source of some of the disinformation about Indian Law.  For instance, Civil Beat, January 9, 2012 reports:

(OHA Chair Collette) Machado said the timeline for the (US Department of) Interior recognition is 18 months to two years. She gave Civil Beat sample copies of several Native American constitutions and bylaws, including Arizona's Hopi Tribe, which was recognized by Henry Ickes, the Interior Secretary in 1936.

"This is parallel," Machado said of the Interior plan. "If the Akaka bill fails, we can still move forward at the state level. When you read this (she points to the constitutions and bylaws) you can see how hopeful it can be for Native Hawaiians, even if we are doing this with the state first rather than from the federal government down."

One has to read this very carefully to spot the deception enabled by the unclear antecedent in sentence two of paragraph one.  What was it that Ickes “recognized”?  A casual perusal might leave the impression that Harold Ickes recognized the Hopi Tribe in 1936.  This would be false.  The Hopi and all other pre-existing tribes were re-recognized in 1934 under the Indian Reorganization Act.  What Ickes did in 1936 was approve the new Hopi Tribal Constitution—an authority he had only because it was specifically granted to him by Congress. 

From the text of the Hopi Constitution, here are the words Ickes used:

“I, Harold L. Ickes, the Secretary of the Interior of the United States of America, by virtue of the authority granted me by the act of June 18, 1934 (48 Stat. 984), as amended, do hereby approve the attached Constitution and By-laws of the Hopi Tribe.”

The 1934 Act did not create an Akaka Tribe so the Department of the Interior does not have the authority to approve an Akaka Tribe constitution.   In any case, the Akaka Gang should be careful what it asks for.  Devolving power away from the State to the Federal government is not all that it is cracked up to be.  An American Indian historical chronology has a different take on Ickes’ 1936 role:

“Interior Secretary Harold Ickes forms Hopi Tribal Council over strong resistance of traditional people, establishes nineteen grazing districts on Hopi and Navajo reservations, and declares area immediately surrounding Hopi villages (District 6) exclusively Hopi.”

Who are all these liars trying to fool by so loudly pretending there is an Executive Branch Akaka Tribal recognition end run around Congress?  How funny is it that they have roped in the entire State Legislature to create a fake tribal roll based on these purely delusional ideas?  When will the body politic of Hawaii reassert its Admission Act responsibility “for the betterment of native Hawaiians” and end this charade? 

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