by Andrew Walden

For years, the Office of Hawaiian Affairs (OHA) has expended every resource to create a Hawaiian Indian tribe. Now, with its goal finally in sight, disputes over how much of Hawaii the Akaka Tribe should grab and how quickly to grab it threaten to torpedo the entire project.

Greenmail is one of the key sticking points. The Native Hawaiian Bar Association (NHBA) argues:

“The bill’s provisions on claims and federal sovereign immunity appear to be overly broad and may prohibit lawsuits by individual Native Hawaiians for claims that could be pursued by any other member of the general population.”

NHBA lawyers seek to avoid losing the legal basis for the PASH-decision-based greenmail lawsuits, such as the Hokulia case, which have made them millions of dollars in legal fees.

Not only are they concerned about losing the right to file existing greenmail suits, but they want the Akaka Bill (HR 2314 / S. 1011) to create more causes for action.  Representing the US Department of Justice at the August 6 Senate Indian Affairs committee hearing, former Dan Inouye staffer Sam Hirsch emphasized:

“…the legislation contains provisions that specifically state that Congress does not intend to create any new legal claims against the United States. The Department supports these provisions and believes they should remain in the bill. In particular, the Department supports section 8(c) in S. 1011, which provides that nothing in the bill creates a cause of action against or waives the sovereign immunity of the United States.”

In other words, the negotiations to create the Akaka Tribe become the sole venue for resolving any claims stemming from passage of the Akaka Bill.

But Robin Danner of the Council for Native Hawaiian Advancement (CNHA) disagrees. In her Senate Committee testimony she demanded 8(c) be replaced with language stating:

“Nothing in this Act is intended to serve as a settlement of any claims against the United States or the State of Hawaii.”

Given the pliant attitude of the Hawaii State Judiciary and Honolulu's Federal Courts, the risk of the Akaka Bill creating new causes for action, just as the 1993 Apology Resolution did, should not be underestimated.  Likewise one should not overestimate the value of any concessions made by the OHA gang.

In addition to continuing and expanding their lucrative greenmail industry, the would-be founders of the Akaka Tribe may also be seeking their own tribal jurisdiction. A tribal jurisdiction could be exempt from State law and many federal laws.  It could easily become a legal shield for future corrupt trustees to protect their activities investigation or prosecution by the State Attorney General.  In fact the corrupt Broken Trust trustees in 1995 commissioned ex-Governor John Waihe`e to study relocation of Bishop Estate.  Waihe`e’s proposal?  Relocate Bishop Estate to the Cheyenne River Sioux Indian reservation—the most “sovereign” of all US Indian Reservations.

Testifying before the Senate Indian Affairs Committee Micah Kane, outgoing Chair of the Hawaiian Homes Commission, and a newly selected Trustee of Kamehameha Schools, did not directly address the dispute over amendments but he did choose to explain:

“Because of our unique legal history, the Hawaiian Homes Commission exercises certain authority over Hawaiian home lands, subject to state and federal law, similar to that being proposed under S. 1011….

“The State and Counties exercise criminal and civil jurisdiction on Hawaiian home lands….and the Commission cannot levy taxes over Hawaiian home lands.” (emphasis added)

The DoJ's Hirsch added:

“The Department also supports the bill’s civil rights protections. Section 7(c)(2)(B)(iii)(I)(cc) and section 7(c)(4)(A)(vi) require the native Hawaiians governing entity, in its constitution or other organic governing document, to expressly protect the civil rights of Native Hawaiians and all persons affected by the governing entity’s exercise of its governmental powers and authorities.”

Why did Kane and Hirsch feel the need to assert this?  Should their testimonies be seen jointly as reflecting the views of some or all of the current KS Trustees, DHHL, Senator Inouye, Governor Linda Lingle, and President Obama's US DoJ?   Do the conflicting views presented before the Committee reflect a discussion which is going on outside of public view?

A clue comes from Robin Danner of the Council for Native Hawaiian Advancement (CNHA) who asks for removal of S 1011 Section 9(e), which reads:

“Nothing in the Act alters the criminal or civil jurisdiction of the United States or the State of Hawaii over lands and persons within the State of Hawaii. The status quo of Federal and State jurisdiction can only change as a result of further legislation, if any, enacted after the conclusion, in relevant part, of the negotiation process established in section 8(b).”

In its place Danner wants language which immediately vests “the Native Hawaiian government…with the inherent powers and privileges of a native government….”  Her demand comes in spite of the fact that S. 1011 creates a mechanism for the negotiated creation of a Native Hawaiian Government, rather than creating the government itself.

Danner’s demand contrasts with Kane’s testimony:

“Amendments to the trust document, the Hawaiian Home Commission Act, requires State legislative approval and in some instances, Congressional consent.”

Also related to the jurisdictional issue, Kane emphasizes:

“Hawaiian Home Lands cannot be sold, except by land exchanges upon the approval of the United States Secretary of the Interior.”

OHA takes a different line. In her June 11, 2009 House Committee Testimony, OHA Chair Haunani Apoliona explains:

“We don't seek to have our lands held in trust by the United States or the State of Hawai`i, or to have our assets managed by the Federal or State governments.”

OHA has already transferred OHA lands such as Waimea Valley, O`ahu to the management of Hi`ilae Aloha, an OHA-owned Limited Liability Corporation. OHA unsuccessfully sought transfer of large portions of Moloka`i Ranch to another LLC connected to OHA Trustee Collette Machado. In recent legislative debates over possible Ceded Lands revenues settlements, Hawaiian activists have sharply questioned OHA’s land management practices, nepotism, transparency, and accountability. Avoidance of a US trust over the lands of a future Akaka Tribe would increase the opportunity for tribal insiders to continue OHA’s practices.

The US House Committee on Natural Resources canceled its July 9 “markup” vote on HR 2314, the House version of the Akaka Bill apparently due to the unresolved disputes over amendments. The US Senate Committee on Indian Affairs likely intends to vote on the S 1011 version of the Akaka Bill in September. Failure to come to agreement on the amendments could block the Senate Committee vote as it has in the House.

Is the Akaka Tribe worth more to the OHA gang than greenmail and corruption?  We will soon find out.

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