by Andrew Walden
What would a State-or Federally-recognized Akaka Tribe mean for Hawaii?
A tiny little hint can be found in this session's battle over OHA’s development scheme at Kakaako Makai.
In the midst of an ultimately unsuccessful full-court press to overturn land use restrictions on OHA’s Kakaako Makai parcels, Sen Brickwood Galuteria quietly tipped OHA’s hand with a move to exempt OHA from the Sunshine Law.
SB2992 SD1, would have exempted “meetings of the Board of Trustees, Office of Hawaiian Affairs from Chapter 92, Part I, Hawaii Revised Statutes, relating to open meetings.” The proposed amendment was put forward February 6, 2014, as an amendment to a shell bill introduced by Sen. Brickwood Galuteria, and scheduled to be heard the very next day by the Senate Hawaiian Affairs Committee. Then just as suddenly, the amendment was deleted from the agenda—but not before leaving yet another indication of OHA’s true agenda:
Notwithstanding any provisions contained in this chapter to the contrary, open meeting requirements and provisions regarding enforcement, penalties, and sanctions, as they are to relate to the Board of Trustees, Office of Hawaiian Affairs or to any of its members, shall be as prescribed by the respective rules of the board of trustees, office of Hawaiian affairs, which rules shall take precedence over this part. Similarly, provisions relating to notice, agenda, and minutes of meetings, and such other requirements as may be necessary, shall also be governed by the rules of the Board of Trustees, Office of Hawaiian Affairs."
A State-recognized Indian tribe can be exempted from as many State and County laws as the legislature sees fit. It is a good sign that the Legislature did not see fit to exempt OHA from the Sunshine Law or from land use regulations at Kakaako Makai. So why then would legislators want to create a tribe whose sole purpose is to be exempted from State and county laws?
A Federally-recognized tribe is exempted from all state and county laws unless specified otherwise by Congress and exempted from Federal laws as specified by Congress.
In December, 2009, then-Representative Neil Abercrombie introduced an amendment to the Akaka Bill HR2314 which marked a sharp departure from previous versions of the Akaka Bill and drew this response from Governor Linda Lingle and Attorney General Mark Bennett:
The changes under consideration (in Abercrombie’s amendment) will completely change the nature of the Native Hawaiian governing entity. The current (un-amended) version of the bill states (in section 8(b)(3)):
"Any governmental authority or power to be exercised by the Native Hawaiian governing entity which is currently exercised by the State or Federal Governments shall be exercised by the Native Hawaiian governing entity only as agreed to in negotiations pursuant to section 8(b)(1) of this Act and beginning on the date on which legislation to implement such agreement has been enacted by the United States Congress, when applicable, and by the State of Hawaii, when applicable. This includes any required modifications to the Hawaii State Constitution in accordance with the Hawaii Revised Statutes."
Section 9(b)(3) of the proposed new bill will change the above quoted language to the following wholly different language:
"The Native Hawaiian governing entity shall be vested with the inherent powers and privileges of self-government of a native government under existing law, except as set forth in section 10 (a). Said powers and privileges may be modified by agreement between the Native Hawaiian governing entity, the United States, and the State pursuant to paragraph (1), subject to the limit described by section l0 (a). Unless so agreed, nothing in this Act shall preempt Federal or State authority over Native Hawaiians or their property under existing law or authorize the State to tax or regulate the Native Hawaiian governing entity."
The following language in the current bill (in section 9(e)) will be removed its entirety:
“(e) Jurisdiction-Nothing in this Act alters the civil or criminal 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 change only as a result of further legislation, if any, enacted after the conclusion, in relevant part, of the negotiation process established in section 8(b)."
The new bill will also provide in section l0(c) that "The [Native Hawaiian Interim Governing] council and the subsequent governing entity recognized under this Act shall be an Indian tribe [pursuant to certain sections of the Indian Civil Rights Act of 1968] ...."
The proposed revisions make immediate changes to the rights and interests of the State of Hawaii. These changes may immediately incorporate into the law governing Native Hawaiians a vast body of Indian law, much of which is unsuited for the State of Hawaii, and none of which (to our knowledge) has been evaluated for its impact on Hawaii.
These changes are extensive, have been not part of any bill which we have supported, and have an enormous potential to negatively impact Hawaii and its citizens. We note, moreover, that there has been no public hearing reflecting this new model in at least the last seven years. The views of Hawaii's citizens, native Hawaiian and non-native Hawaiian alike, have not been heard (certainly not recently) with regard to this new model.
The implications of forever changing the relationship between native Hawaiians and the State of Hawaii, and simply deciding native Hawaiians are an Indian tribe (for at least some purposes), are potentially enormous. We oppose these changes. And, we do so mindful of the fact that Governor Lingle and I have been among the strongest supporters of the Akaka Bill for seven years.
We also note that the new bill has a new term "Qualified Native Hawaiian Constituent"—which is defined in six pages of the bill. There have never been public hearings on this new term and its significance, and we have not had the opportunity to study it in detail.
We also oppose other changes to the bill, including removing the current language in section 8(c) (3) which sets forth the State of Hawaii's complete retention of its sovereign immunity (unless waived in accord with State law), and which makes clear that nothing in the bill shall be construed to constitute an override of Hawaii’s Eleventh Amendment sovereign immunity pursuant to section 5 of the Fourteenth Amendment.
What was Abercrombie after? Land and Power. Abercrombie’s infamous June 11, 2009 statement before the House Land and Natural Resources Committee makes it very clear:
(Abercrombie begins at 1:27 mark)
In spite of the protestations of Bennett and Lingle, the Abercrombie version of the Akaka Bill was pushed by Hawaii’s Congressional delegation with only minor variations until September 13, 2012. On that date, Sen Dan Akaka introduced even worse language which would become the final version of the Akaka Bill.
As this writer explained at the time:
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 1803 "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.
---30---
June 8, 2014: Bob Jones: State 'Tribe' is Only Realistic Outcome of OHA Roll