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Thursday, July 8, 2010
Amended Akaka Bill: A Trojan horse for Tribal immunity?
By Andrew Walden @ 12:53 PM :: 13306 Views :: Energy, Environment, National News, Ethics

by Andrew Walden

With the Senate clock running down and Americans preparing to elect a Republican majority in one or both houses this November, Hawaii’s political elites have found a way to get back on the same page in support of the Akaka Bill.  Sen. Akaka has been arm-twisted into proposing an amendment to S1011 removing provisions which would have granted instant immunity from prosecution to Tribal officials and the Tribe itself.

Immunity from prosecution has been a goal of the Akaka Gang ever since the corrupt 'Broken Trust' Trustees of Kamehameha Schools commissioned former Gov. John Waihee to consider possible sites for relocation of KSBE's "domicile" out of Hawaii.  Waihee's answer: The Cheyenne River Sioux Indian Reservation--the most "sovereign" of all Indian Reservations--with its own Tribal Police, Courts, and Legislature.  Today, the same forces are working to build an Indian Reservation around themselves in order to shield their criminal activities from all State prosecutions and many Federal prosecutions as well.  If they cannot get immediate immunity, they will work to get it via the negotiation process.  And none of the three gubernatorial candidates have shown the slightest willingness to stand up against such demands.   

The immunity provisions remain in Neil Abercrombie’s version HR2314 which passed the House on his last day in office.  If the Senate passes the amended version, the differences would have to be hashed out in a House-Senate Conference Committee before being re-voted by both houses.  This does not mean that OHA has abandoned its effort to provide immunity from prosecution for drug dealers, KSBE Trustees, mortgage scammers, OHA Trustees and other similar types.  Clyde Namuo, OHA's chief executive officer explained

"It may not be perfect. It at least is closer to the self-determination concept that we would support, that we would want to see.  And I think there is still time to tweak the language in future congresses if we need to.  I think, again, because the window of opportunity seems so short, I think getting it passed is the primary objective."

Last December, Neil Abercrombie passed a previous immunity-free version of the Akaka Bill as a Trojan Horse to get through the House Committee on Natural Resources.  He then amended the bill by substitution on the House floor.  Governor Lingle responded by sending a March 24 letter to all US Senators explaining:

“The explicit sovereign immunity and exemption from regulation provisions in the present bill allow the Native Hawaiian governing entity, and its leaders, to conduct activities anywhere in Hawai‘i (and potentially any other state) in a way that is inconsistent with State criminal statutes otherwise applicable to all citizens, and state laws governing narcotics and dangerous drugs; civil defense; alcohol and tobacco; fire and building codes necessary for public safety; traffic safety; landlord-tenant matters; clean air, clean water, hazardous waste (and other state pollution statutes); child welfare, child protection, and child safety; public health; food and drugs; and virtually every other conceivable law that serves to protect the public. It is not clear how the State could enforce its interests against unlawful or irresponsible actions by the governing entity or its elected leaders or employees."

Would Akaka pass a no-immunity version through the Senate and then use the House-Senate Conference Committee to change it back?  Of course he would—everything about the underhanded and secretive way the new version of Akaka Bill was created shows that is possible.    

Nonetheless the amendment has won the support of the Lingle administration.  Attorney General Mark Bennett told HNN:

"So these amendments make clear that the state retains the full authority to regulate to protect public health and safety and also make clear that this bill doesn’t provide anybody immunity from any criminal prosecution, we think those are good changes, they address our concerns and with these changes we can fully support the bill again and we are very happy about that."

Not addressed in Sen Akaka’s amendment is the “Qualified Native Hawaiian Constituent” (QNHC) classification which effectively makes tribal membership contingent not on a blood quantum, but on willingness to sign OHA’s highly controversial Kau Inoa registry.  This QNHC category, newly created in this latest Abercrombie-Akaka version, effectively excludes 73% of Native Hawaiians from tribal membership.  If either version becomes law, the Akaka Tribe would be the only US Indian Tribe ever recognized which defines membership on this type of political affiliation rather than a blood quantum. 


» Text of the amendment: akaka.senate.gov/upload/amdt_HR2314.pdf
» Text of HR 2314, as passed by the House of Representatives in February:

RELATED: Inouye pressures Akaka Tribe: Akaka pushes back, Akaka Bill: More than 73% of Hawaiians not "Qualified" for membership in Akaka Tribe


Bonus. Want to to know how Hawaii’s leading media fugues think?  Read this:

Shapiro: Can the Akaka bill survive legislative ineptitude?

The Akaka bill for Native Hawaiian political recognition is complex  legislation that has the potential to change life in Hawai’i in the most fundamental ways.

That’s why I always took comfort that for most of its life, the bill had the support of virtually all of the state’s political establishment from nearly every ideological stripe; I figured if something was terribly wrong, somebody would blow the whistle. (This is how Hawaii journalists think.  If the political class is nearly 100% for it, it must be OK.  No need check any further.)

For the same reason, it made me uncomfortable when our Sens. Daniel Akaka and Daniel Inouye pulled out major last-minute amendments without bothering to inform Gov. Linda Lingle, costing them her support.

It was highly suspicious that the senators and the Obama administration felt a need to sneak around behind the back of a Republican governor who for seven years had been a solid ally in lobbying for the bill against the grain of national GOP opposition.

The secret changes they made to give a Hawaiian governing entity a high level of immunity from state laws before any negotiations took place were never satisfactorily explained.

Today’s announcement that Akaka and Inouye are amending the bill again to satisfy Lingle’s objections and bring her back on board restores the original political comfort level.

(It shouldn’t.  Think for yourself.)

read more




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