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Friday, January 16, 2009
Akaka Bill rewrite: Tribal jurisdiction for Hawaii?
By Andrew Walden @ 4:02 PM :: 9718 Views :: Akaka Bill

by Andrew Walden

The Akaka Bill, authorizing creation of a Hawaiian tribal entity, is being rewritten prior to submission to a vote in the House and Senate. The rewrite has not been in the news, but a January 16, 2009 Advertiser editorial warns the Akaka tribe against overconfidence.  Three key sentences in the editorial make it possible for a highly informed reader to understand what Senator Dan Akaka’s (D-HI) staffers are changing:

"Because of previous opposition from the Bush administration and Capitol Hill Republicans, the bill had been constrained. For example, Native Hawaiians were to be treated the same under criminal and taxation laws as anyone else.  And land claims by Native Hawaiians were to be confined to the negotiations between the state and Native Hawaiian representatives."

Barack Obama’s repeated pledge to sign the Akaka Bill was the key condition of Hawaii Democrats’ early-money support for his Presidential campaign. The House has easily passed the Akaka Bill twice with little debate. But if the language imposed by the Bush Justice Department in 2005 is written out of what will become the 2009 version of the Akaka Bill, the changes could impact the dynamics of Senate debate.  

Quoting from the 2005 DoJ document, the four key changes were:

  • First, the legislation should include explicit language clearly precluding potential claims for equitable, monetary or Administrative Procedures Act-based relief, whether asserting an alleged breach of trust, calling for an accounting, or seeking the recovery of or compensation for lands once held by native Hawaiians.
  • Second, S. 147 should be amended to make clear that the consultation process contemplated in sections 5(b) and 6(d) may not be applied so as to interfere in any way with the operation of U.S. military facilities on Hawaii or otherwise affect military readiness.
  • Third, the legislation should state clearly whether the federal Government, the State of Hawaii, or the native Hawaiian governing entity will have jurisdiction to enforce criminal laws on native Hawaiian lands.
  • Fourth, the legislation should clearly provide that the Indian Gaming Regulatory Act will not apply to the native Hawaiian governing entity, and that the governing entity will not have gaming rights.

The issues regarding point two, military bases and military readiness, and point four, gambling, are self-evident. The bill either supports national defense or not. The bill either prohibits gambling or not.

The other items require more analysis. Point one requires that all Hawaiian claims be settled through the establishment of the Akaka Tribe. Without this item being included in the Akaka Bill, there is no end to the constant flow of greenmail lawsuits by OHA-backed activists. An Akaka Bill without this provision settles nothing while increasing the power of the greenmailers exponentially.

Point three prevents the Akaka Tribe from serving as a separate legal jurisdiction as do many mainland Indian tribes. If the Akaka Tribe establishes a separate legal jurisdiction it is guaranteed to serve as a shield for politically corrupt activities. To understand this, readers need to refer back to the “Broken Trust” Bishop Estate Trustees’ 1995 proposal to relocate KSBE’s legal domicile to the Cheyenne River Sioux Indian Reservation. In contrast, Alaskan Native corporations are not separate legal jurisdictions and are not immune from US or Alaska law.

An Akaka Tribe with criminal jurisdiction simply recreates the Indian Reservation around the Trust and thereby eliminates the need to leave Hawaii. The so-called ‘sovereignty’ activists, who now pretend to oppose the Akaka Bill, can be counted upon to agitate for a tribe of the most sovereign type within the Kau Inoa electorate. Cheyenne River was selected for the Broken Trust trustees by ex-Governor John Waihe`e who continues to play an important behind-the-scenes role in pushing the Akaka Bill forward.

In addition to issues related to political corruption and white collar crime, a legal jurisdiction for the Akaka Tribe brings with it the possibility that reservation Hawaiians will not have the same rights as full American citizens. According to law, the Bill of Rights does not automatically apply under tribal jurisdictions.

OHA is now attempting to prevent the State of Hawaii from exercising its constitutional right to access the courts in the Ceded Lands case. Free speech has also been an OHA target. Haunani Apoliona, writing in her capacity as “Chairperson, Board of Trustees, Office of Hawaiian Affairs” (OHA) went after an internet cartoonist in a Jan. 24, 2008 statement demanding: “The cartoon should be pulled and the secret author publicly identified.” These acts are a hint at the future status of democratic rights under the jurisdiction of the Akaka Tribe.

It will not be clear whether all of the changes made to accommodate the Bush administration demands will be stricken. But given the fact that Sen. Akaka himself spoke of secession by Hawaii in the midst of 2005 Congressional debate on the Akaka Bill, there can be little doubt of the overconfidence of his staffers.

Sixty votes would be required for the Senate to win a vote for cloture of any filibuster attempt. With party unity, Republicans have the votes to support a filibuster, but a handful have supported Akaka’s bill.

In addition to Republican Senators, The Hill April 1, 2008 identified three Democrat Senators which Akaka’s staff had not convinced to support the Akaka Bill. These were:

There are also nine new Senators for 2009, two Republicans and seven Democrats. And a Minnesota Senate seat remains contested as Democrat comedian Al Franken seeks to unseat Republican Senator Norm Coleman.

The contact point for all US Senators is:


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