"Daniel Akaka defended the trustees.  He said the level of compensation was not too high; if anything, the trustees deserved to be paid more." -- Broken Trust, p 164

by Andrew Walden

We now have the final word on the bill retiring Senator Daniel Akaka has pursued relentlessly ever since his beloved Broken Trustees were ousted from Kamehameha Schools.  We now can see what he really wanted all along and it is cause for a big "I told you so" from those of us who have for years opposed the Akaka Bill. 

Introduced as an amendment in the form of a substitution to S.675 and reported out September 13, 2012 by the Senate Indian Affairs Committee, Akaka's last bill still contains the "instant Indian tribe" legal jurisdiction which forced Attorney General Mark Bennett and Governor Linda Lingle to come out in opposition to Akaka's December, 2009 version of the bill.

The latest bill also includes restrictive definition of "Qualified Native Hawaiian Constituent" which could exclude up to 73% of Native Hawaiians while allowing tribal officials to selectively admit property developers, casino magnates, and other non-Hawaiians. 

The list of "Qualified Native Hawaiian Constituents" is being compiled by the State-authorized Native Hawaiian Roll Commission headed by Right Star defendant, ex-Governor John Waihee (last seen looting 40,000 Hawaii "in time of need" burial contracts).

As if that was not enough, new language inserted in the amended version of S.675 allows the Tribe to kick out anybody at any time for any reason.  Section 6(a)(1)(A) allows the "Native Hawaiian governing entity" to:

(A) to determine membership in, and membership criteria for, the Native Hawaiian people; and

(B) to grant, deny, revoke, or qualify membership without regard to whether any individual is considered to be a member of the Native Hawaiian people under this Act....

This enshrines the right of the Akaka Tribe to engage in the worst practices of the Mainland gaming tribes which have written and re-written their tribal laws to throw out lifelong tribal members, in a cash grab to shrink the tribal rolls by tightening the blood quantum required for membership thus giving larger gaming royalty checks to the remaining members.  But unlike the Mainland tribes, under S.675, the Akaka Tribe won't even have to bother with an excuse based on changes to blood quantum, they can just make a list of 'enemies' or 'undesirables' and throw them out.

Under S.675, the Akaka Tribe is to "have the inherent powers and privileges of self-government of an Indian tribe under applicable Federal law, including the inherent power and authority--(and)--be considered to be an Indian tribe for purposes of section 104 of the Federally Recognized Indian Tribe List Act of 1994 (25 USC 479a-1)".

But Akaka's final version removes protections provided to tribal members under the 1968 "Indian Civil Rights Act".  Without this language, the US Constitution will not apply under Akaka Tribal jurisdiction and members of the Akaka Tribe will not be guaranteed free speech, due process, or other civil rights.  This would help protect corrupt Tribal officials as they expel angry Tribal members.  The missing language, which had been in the 2011 version of S.675, read:

 (c) Indian Civil Rights Act of 1968.--The Council and the subsequent governing entity recognized under this Act shall be an Indian tribe, as defined in section 201 of the Indian Civil Rights Act of 1968 (25 USC 1301) for purposes of sections 201 through 203 of that Act (25 USC 1301-1303.)

If enacted, Akaka's last bill would open up billions of dollars and millions of acres for exploitation--shielded by Tribal immunity from prosecution.  Most of this comes from language omitted from the final version of S.675.  

A big omission allows for the Akaka gang to use the Tribe to sue for "restoration" of every square inch of Hawaii to the "Reorganized Native Hawaiian Government."  The missing language--included in the 2011 version of S.675--read:

 (e) Real Property Transfers.--Section 2116 of the Revised Statutes (commonly known as the "Indian Trade and Intercourse Act") (25 USC 177) does not apply to any purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from Native Hawaiians, Native Hawaiian entities, or the Kingdom of Hawaii that occurred prior to the date of the United States recognition of the Native Hawaiian governing entity.

The key language from the "Indian Trade and Intercourse Act" (25 USC 177) -- which would apply retroactive to the year 1803 to the Akaka Tribe if the new version of S. 675 became law -- reads:

[N]o purchase, grant, lease, or other conveyance of land, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant the constitution.

Because the "Reorganized" native Hawaiian government is defined as an Indian tribe under S. 675, (thus implying that the Hawaiian Kingdom was also an Indian Tribe) all land ever possessed by any native Hawaiian or by the Hawaiian Kingdom is deemed to have been taken illegally--with the exception of lands such as Pearl Harbor, which was transferred under terms of the 1875 Reciprocity Treaty.  This validates the most demented claims of sovereignty mortgage scammers who have defrauded thousands of native Hawaiians statewide.  Outside Pearl Harbor, it subjects all the real estate in Hawaii to seizure by a self-selected gang of criminals operating from behind a wall of tribal immunity while claiming to represent native Hawaiians.  For years opponents of the Akaka Bill have explained this, now in his final act, Sen. Akaka has admitted it.

The Akaka gang's land grab will not be limited to Hawaii. 

For years mainland Indian tribes have purchased land and then petitioned the US Bureau of Indian Affairs to take the land into trust.  This allowed tribes to build casinos in urban areas far from traditional tribal lands. The 2009 US Supreme Court decision in Carcieri v Salazar put an end to that for tribes recognized after the 1934 passage of the Indian Reorganization Act.  But, even as post-1934 tribes agitate unsuccessfully for Congress to pass a "Carcieri Fix," the Akaka Tribe has one all for itself:

"RATIFICATION AND CONFIRMATION OF ACTIONS. -- Any action taken by the Secretary pursuant to the Act of June 18, 1934 (commonly known as the ‘‘Indian Reorganization Act’’) (25 U.S.C. 461 et. seq.) for the Native Hawaiian governing entity is ratified and confirmed to the extent that the action is challenged based on the question of whether the Native Hawaiian governing entity was federally recognized or under Federal jurisdiction on June 18, 1934."

This means that the Akaka Tribe will be able to use its assets to buy casino sites and other investments anywhere on the Mainland and place them under Tribal law without the protections of the Indian Civil Rights Act.  This breaks years of promises to the other Indian tribes that they would not face competition from the larger and richer Akaka Tribe.  Moreover, it would put the Akaka Tribe at an advantage relative to post-1934 tribes.

It also means that the Akaka Tribe will be seizing land in Hawaii and transferring it to the jurisdiction of the Federal Government in order to establish Tribal jurisdiction.

In line with the land grabs and the absence of Civil Rights, the new version of S. 675 removes the prohibition of gaming on Tribal lands.  Removed from the new bill is this language from Section 10(a) in the previous version of S. 675:

"The Native Hawaiian governing entity and Native Hawaiians may not conduct gaming activities as a matter of claimed inherent authority or under the authority of any Federal law, including the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) or under any regulations there under promulgated by the Secretary or the National Indian Gaming Commission."

The new version reads:

(b) INDIAN GAMING REGULATORY ACT.—The Native Hawaiian governing entity—

(1) is subject to the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) (including regulations promulgated pursuant to that Act by the Secretary or the National Indian Gaming Commission); and

(2) may not conduct gaming activities (within the meaning of section 4 of that Act (25 U.S.C. 16 2703)) unless the State of Hawaii permits such an activity for any purpose by an individual, organization, or entity.

Translation: Gaming is allowed on Akaka Tribe lands on the Mainland subject to IGA, and the Legislature is deemed to automatically permit gaming on Tribal lands within Hawaii if gaming is permitted anywhere in Hawaii.

In addition to competing for casino business, the new version of  S.675 breaks another decade-long political deal with the real Indian tribes over benefits from federal Indian programs.  The following language contained in the 2011 version of S.675 has been removed:

"Notwithstanding any other provision of this Act, nothing in this Act extends eligibility for any Indian program or service to the Native Hawaiian governing entity or its members unless a statute governing such a program or service expressly provides that Native Hawaiians or the Native Hawaiian governing entity is eligible for such program or service. Nothing in this Act affects the eligibility of any person for any program or service under any statute or law in effect before the date of enactment of this Act."

That means that the limited supply of Indian program money now divvied up between mainland tribes would become even more diluted by forced sharing with the fake Akaka Tribe. 

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