by Andrew Walden

By now, anybody not living under a rock knows that the US Department of the Interior plan for "reestablishing a government-to-government relationship with the Native Hawaiian community" does not refer to reestablishing a relationship with the Hawaiian Kingdom, which was a multi-ethnic state.

So what are the Feds "reestablishing"?  It turns out to be a "government to government" relationship with OHA.

Akamai readers will remember that the US DoI's proposed rule includes very specific criteria to measure "broad-based community support" in a vote on any governing documents written by OHA's Na'i Aupuni 'Aha:

...if fewer than 30,000 Native Hawaiians cast votes in favor of the governing document, this criterion is not satisfied.... if more than 50,000 Native Hawaiians cast votes in favor of the governing document, the Secretary shall apply a strong presumption that this criterion is satisfied....

...if fewer than 9,000 HHCA-eligible Native Hawaiians cast votes in favor of the governing document, this criterion is not satisfied.... if more than 15,000 HHCA-eligible Native Hawaiians cast votes in favor of the governing document, the Secretary shall apply a strong presumption that this criterion is satisfied.... (Section 50:16, subparts g and h)

The DoI rule proposal explains where it derives those numbers from:

In the 1990s, the State of Hawaii's Office of Elections tracked Native Hawaiian status (To allow for race-based voting in OHA elections until the practice was outlawed by the US Supreme Court's February, 2000, Rice v Cayetano decision. --ed) and found that the percentage of Hawaii's registered voters who were Native Hawaiian was rising, from about 14.7 percent in 1992, to 15.5 percent in 1994, to 16.0 percent in 1996, and 16.7 percent in 1998. (This trend is generally consistent with census data showing growth in recent decades in the number of persons identifying as Native Hawaiian.) In the most recent of those elections, in 1998, there were just over 100,000 Native Hawaiian registered voters, about 65,000 of whom actually turned out and cast ballots in that off-year (i.e., non-presidential) Federal election.  (Part III)

In other words, DoI's certification is dependent on the Tribe obtaining support from the pre-Rice OHA electorate.  Based on continuity of the body politic, the only conclusion is that the DoI is "reestablishing" OHA as an Indian Tribe. 

OHA already sets the standard for corruption, infighting, and resistance to transparency among Hawaii State agencies. What would happen if it became an Indian Tribe?

In the mid-1990s former Governor John Waihee proposed that the corrupt Broken Trustees of Kamehameha Schools relocate KSBE Corporate HQ to the Cheyenne River Sioux Indian Reservation because tribal jurisdiction would shield them from the state and federal investigations which eventually forced their resignations.  Waihee is now Chair of the Kanaiolowalu Roll Commission.  His son is an OHA Trustee. 

How could an OHA Indian Tribe lead to Broken Trust-Part 2?

For the answer, we turn to an US DoI amicus brief submitted October 14 in the Akina v Hawaii lawsuit. 

Because tribes pre-date the Constitution and did not participate in the Constitutional Convention, they are not governed by “constitutional provisions framed specifically as limitations on federal or state authority,” including the Bill of Rights and the Civil War Amendments.....

Likewise, the Voting Rights Act of 1965, as amended, is directed only to a “State or political subdivision.”  So any Voting Rights Act claim against an Indian tribe must fail....

Tribes’ exercise of sovereign governmental powers is constrained, however, by the Indian Civil Rights Act. ICRA guarantees most, but not all, of the protections for individual liberties similar to those found in the Bill of Rights and the Civil War Amendments, and makes them applicable to tribes....

And what could tribalized Hawaiians expect from the Indian Civil Rights Act?  Minnesota Public Radio takes a look at the status of civil rights in Indian Country, pointing out:

Reports of civil rights violations on Minnesota's Indian reservations have been persistent for years. Indians have filed scores of complaints to state and federal agencies, saying they live under a system where political patronage and nepotism rule the day and tribal leaders can manipulate the legal system to benefit themselves and their supporters.

Political patronage?  Nepotism?  Sound familiar?  Just in case you still don't get the point, the MPR series is titled, "Broken Trust."

Indian civil rights mean little because Tribes lack a system of checks and balances.  A federally recognized OHA Indian Tribe would be exempt from State laws governing such things as land development and zoning.  Given Hawaii's tough permitting process, developers would fall all over themselves to bribe the OHA Tribe for permits.  As the mega-profits roll in, dissention would ensue.  Business outside tribal lands would suffer.

After hundreds of California Indians were 'disenrolled' from their tribes in order to maximize casino profits for the remaining members, LA Weekly discovered the victims' recourse to the courts depends on the whim of distant federal Bureau of Indian Affairs officials: 

Citing what he calls an “increase in the number of human and civil rights violations, especially within tribes that have gaming operations,” (expelled tribal member) John Gomez Jr and his allies are working to reform the 1968 Indian Civil Rights Act....

“We have to be able to use that Indian Civil Rights Act,” says (another expelled Indian) Michael Madariaga. “You can’t go into the courts unless the federal government gets behind enforcing things. We’re not there yet.”

The DoI amicus brief sums up with this:

Native Hawaiian people have the same fundamental rights of political liberty and local self-government as any Indian tribe. Native Hawaiians should not be relegated to second-class status among our Nation’s indigenous peoples. Accordingly, on this basis alone, plaintiffs’ motion should be denied. (p23)

Without the civil rights protections expected by US Citizens, tribal citizenship IS second class citizenship.  On this basis alone, the fake Hawaiian Indian Tribe should be rejected.

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Reservation for a Broken Trust?

Call the US Department of Interior and tell them ‘No!’

Akina v Hawaii: The Documents

Nai Aupuni: We are Legal Because we are Organizing an Indian Tribe 

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Grassroot: Plaintiffs Intend to Continue Fight Against Unconstitutional Election

No Public Hearings Set for Federal Hawaiian Indian Tribe Rules

Marijuana behind OHA's push for Federal Recognition?

Broken Trust Gang Busted: OHA Admits to Secret Meeting With US Department of Interior

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