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Why the new Akaka bill is the worst one yet: bad for the people of Hawaii, bad for the genuine Indian tribes, bad for the entire U.S.


(c) Copyright by Kenneth R. Conklin, Ph.D. September 16, 2012

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The new Akaka bill is a monster and pig in a poke. It authorizes casinos in Hawaii and on the mainland; creates a huge new tribe (the largest in America) empowered to grab government handouts away from the genuine tribes; worsens racial balkanization in America by redefining "tribe" in the Constitution to mean "indigenous"; abandons protections for Hawaii's people that were in previous versions; grants federal recognition to a tribe not yet created.

** NOTE:
A summary of this essay without quotes or documentation was published in "Hawaii Political Info" blog on September 17, 2012, containing 1900 words.
http://hawaiipoliticalinfo.org/node/5775
A simplified summary was published in "Hawaii Reporter" online newspaper on September 18, 2012, containing 1500 words.
http://www.hawaiireporter.com/?p=80238

INTRODUCTION

On September 13, 2012 a new version of the Akaka bill (wishfully named the Native Hawaiian Government Reorganization Act of 2012) was introduced in the U.S. Senate Committee on Indian Affairs, whose chairman is Senator Daniel Akaka (D, HI). Barely one minute after it was introduced, the committee (with most members absent) passed it on a voice vote. Committee vice-chair Senator John Barrasso (R, WY) voted against it. Barrasso also announced that Senator John McCain (R, AZ) wanted everyone to know that he also opposed it.

In the 12-year history of the Akaka bill, this is the first time news reports have indicated any opposition was voiced inside the Senate Committee on Indian Affairs. Usually those few committee members present when a new Akaka bill is introduced simply rubber-stamp it, and those who oppose it stay away from the meeting or wait until the bill gets out of committee to express their disapproval.

Full text of several news reports can be found from September 13 and 14, 2012 in a history of the Akaka bill during the 112th Congress maintained at
http://www.angelfire.com/big09/AkakaHist112thCong.html

The new bill is an amendment in the nature of a substitute; i.e., what we in Hawaii call "gut and replace." Thus the bill keeps the same number, S.675.

The new bill, introduced and passed in the committee on September 13, 2012 was copied from Senator Akaka's official website (which will be demolished after 2012 due to his retirement) and saved permanently on Ken Conklin's website at
http://big09.angelfire.com/AkakaS675Amended091312.pdf

The version it replaces, introduced on March 30, 2011 can be seen for comparison at
http://www.angelfire.com/big09/AkakaBill033011HR1250S675.html

A short news release was posted on Senator Akaka's website on September 13, although it is deceptive:
http://www.akaka.senate.gov/press-releases.cfm?method=releases.view&id=08a84ffb-3abb-40ac-83dd-7fd8ff20f233

The new bill has only 14 pages, whereas the old version was four times as long. The explanation put forward for such a drastic change was that extensive details regarding procedures for creating the Akaka tribe are no longer needed, because the federal bill now defers to state Act 195 passed by the Hawaii legislature in 2011 and to a racial registry now being assembled under Act 195. However, the entirety of Hawaii Act 195 and its accompanying racial registry signup document do not come anywhere close to the amount of language removed from from the federal bill. It's easy to see that something fishy is going on here.

Careful reading of the new Akaka bill and comparison with the version it replaces, as well as earlier versions, reveal major changes. This is an Akaka bill on steroids, turning Goliath into King Kong.

Although the bill has virtually zero chance of being enacted into law in 2012, it will no doubt return in the new 113th Congress in 2013. During the 12 year history of the Akaka bill, the version that was active at the end of a 2-year Congress has been the version introduced early in the next Congress.

Since Senator Akaka is retiring, this version is his final legacy. It's what he really wants. It's what his successor and the rest of the Hawaii delegation will feel honor-bound to carry forward. Thus it's important to analyze the new bill even if it has no chance of being enacted this year. God help us if Senator Inouye succeeds in hiding this bill by reference as a single sentence deep inside some massive must-pass continuing resolution or ombibus appropriations bill during the lame duck session after the election.

The new version of the Akaka bill clearly displays the attitude of contempt which Hawaiian activists have for the rights of Hawaii's multiethnic people, and a disregard for the Aloha Spirit touted by Senator Akaka's brother, the late Rev. Abraham Akaka. New language in the bill (and removal of old language) also shows a clear intention to establish tribal gambling casinos in Hawaii and to authorize the Akaka tribe to invade the casino market on the mainland which has been the economic underpinning of so many genuine Indian tribes in nearly every state.

The bill's accompanying news release on Senator Akaka's official website has a headline calling this a "streamlined bill." Indeed, it's lean and mean. It's streamlined in the way a sniper bullet to the heart could be called a streamlined version of a hand grenade or roadside bomb.

The new Akaka bill is far more dangerous than any earlier version. It lacks the "protections" found in previous bills.

There are many topics to be explored. The most important reasons for opposing the new Akaka bill remain the same as with all previous versions although they are not discussed in this essay -- racial balkanization, chaotic governance, unconstitutionality, and serving powerful institutions while violating the wishes of ordinary folks. It is morally wrong to divide the thoroughly integrated people of Hawaii along racial lines. It will produce jurisdictional conflict and chaos considering that 21% of Hawaii's people are eligible to join the Akaka tribe, while they and the likely tribal lands are widely scattered throughout all neighborhoods on numerous islands (no mainland tribe comprises such a large percentage of a state's population or has such widely scattered parcels of reservation lands interspersed among state and private lands). Here's a map showing the lands that will be in dispute:
http://www.angelfire.com/hi5/bigfiles3/AkakaTribeLandsAdv080505.pdf

Neither Congress nor the executive branch has the authority to single out an entire racial group and create a government for it. A recent Zogby poll shows that a majority of Hawaii's people oppose the Akaka bill and an even larger majority want no such action to be taken unless the question is first placed on the ballot. Earlier surveys show that Hawaiian sovereignty and creating a "nation" are the lowest priorities for both ethnic Hawaiians and non-Hawaiians, ranking far below jobs, education, healthcare, and housing. For numerous links to webpages dealing with all these more important topics, see "Why all America should oppose the Hawaiian government reorganization bill, also known as the Akaka bill" at
http://www.angelfire.com/hi2/hawaiiansovereignty/OpposeAkakaBill.html

Here is a list of topics, in the order they are discussed in this essay. These are not all the issues that should be raised; they are limited to the most important changes where the new bill is different from all previous versions. Topics are not in the order of importance, but in the order most likely to capture the attention of Indian tribes and national politicians who will find good reasons to oppose the new Akaka bill even if they did not oppose previous versions.

NATIVE HAWAIIAN GAMBLING CASINOS ARE AUTHORIZED BY THE NEW AKAKA BILL NOT ONLY IN HAWAII BUT ALSO IN 48 OTHER STATES, COMPETING AGAINST CASINOS OPERATED BY THE GENUINE TRIBES. THE AKAKA TRIBE EVEN GETS IT OWN "CARCIERI FIX" WHEN GENUINE TRIBES DON'T.

HUGE NATIVE HAWAIIAN TRIBE NOW ELIGIBLE AUTOMATICALLY FOR ALL EXISTING AND FUTURE FEDERAL TRIBAL BENEFIT PROGRAMS -- A GIGANTIC BULLY COMPETING AGAINST GENUINE BUT MUCH SMALLER TRIBES FOR GOODIES FROM A SHRINKING POT

RACIAL BALKANIZATION IN THE CONTINENTAL 48 STATES; AND HOW THE NEW AKAKA BILL WORSENS IT BY AUTHORIZING FEDERAL RECOGNITION OF "INDIGENOUS" GROUPS EVEN THOUGH THEY WERE NEVER ORGANIZED AS TRIBES

THE NEW AKAKA BILL IS A PIG IN A POKE. EXAMPLE: THE RACIAL BALKANIZATION OF HAWAII, AND HOW THE NEW AKAKA BILL CONCEALS IT

VIRTUALLY ALL FEDERAL AND STATE LANDS AND WATERS IN HAWAII MIGHT BE SWALLOWED UP BY THE AKAKA TRIBE BECAUSE THE INDIAN NON-INTERCOURSE ACT IS NO LONGER PROHIBITED TO THE AKAKA TRIBE AND THERE IS NO STATUTE OF LIMITATIONS ON CLAIMS FOR PAST EVENTS NOR ANY TIME LIMIT FOR ASSERTING CLAIMS

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NATIVE HAWAIIAN GAMBLING CASINOS ARE AUTHORIZED BY THE NEW AKAKA BILL NOT ONLY IN HAWAII BUT ALSO IN 48 OTHER STATES, COMPETING AGAINST CASINOS OPERATED BY THE GENUINE TRIBES. THE AKAKA TRIBE EVEN GETS IT OWN "CARCIERI FIX" WHEN GENUINE TRIBES DON'T.

Let's start with tribal gambling casinos. This issue is less dangerous than balkanization and racial strife, but it's easy to understand, highly controversial in Hawaii, and will be of great interest to hundreds of tribes on the mainland who might face stiff competition from the Akaka tribe opening up casinos in their neighborhoods.

The Akaka bill formerly had a prohibition against utilizing the Indian Gaming Regulatory Act to establish casinos. Section 10(a) of the Akaka bill S.675 in place before September 13, 2012 (and all versions of the bill for many years) said "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 thereunder promulgated by the Secretary or the National Indian Gaming Commission." That prohibition was put in the bill more than a decade ago. It has been maintained continuously until September 13, 2012, and sometimes strengthened so that mainland tribes fearing Hawaiian competition would not pressure their states' Senators to oppose the Akaka bill; and to allay the fears of Hawaii citizens in a state which has staunchly refused to allow any form of legalized gambling.

But the new bill reverses that prohibition and now explicitly encourages gambling: "The Native Hawaiian governing entity 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)." That sentence clearly anticipates that the Akaka tribe will have gambling casinos, and those casinos will be permitted and regulated the same way as all other tribal casinos.

The new bill adds that the Native Hawaiian governing entity "may not conduct gaming activities (within the meaning of section 4 of that Act (25 U.S.C. 2703) unless the State of Hawaii permits such an activity for any purpose by an individual, organization, or entity."

That last sentence clearly means that if the State of Hawaii ever allows any form of legalized gambling, even as small as a permit for one church to have a Saturday night bingo game, then the Akaka tribe is allowed to have full-blown casinos in Hawaii. There have been numerous efforts for many years in the state legislature to pass bills allowing gambling. Powerful mainland groups send lobbyists to the Hawaii legislature and to make appearances on TV and radio programs in hopes they will reap huge profits if gambling is ever allowed. A commonly used name for Las Vegas is "Hawaii's 9th Island" because so many Hawaii people go there so often to gamble (So why not keep the profits in Hawaii by letting them gamble here?). Even when the Akaka bill had the provision forbidding the tribe to sponsor gambling, there were bills in the legislature to allow casinos on the Hawaiian Homelands; and those bills were supported by OHA and DHHL who probably imagined that when the Akaka bill passed then the tribe would take over the homelands and thus acquire casinos built at the expense of state taxpayers.

Now let's consider that sentence again to see whether it applies to other states. The Native Hawaiian governing entity "may not conduct gaming activities (within the meaning of section 4 of that Act (25 U.S.C. 2703) unless the State of Hawaii permits such an activity for any purpose by an individual, organization, or entity."

Does that mean that the ability of the Akaka tribe to put casinos in other states depends on whether the State of Hawaii passes a law allowing gambling in Hawaii? Such an interpretation would be ridiculous. That sentence is sufficiently unclear that it will probably be construed to apply only to Hawaii. If another state or tribe cites that sentence to forbid the Akaka tribe from building a casino outside Hawaii because Hawaii itself does not allow gambling, then the Akaka tribe will probably file and win a lawsuit asserting that the clear intent of that language is to prohibit the Akaka tribe from sponsoring tribal gambling IN HAWAII until the State of Hawaii passes a law legalizing gambling in Hawaii. In such a lawsuit the Akaka tribe will assert that it is now a federally recognized Indian tribe with all the same rights as any other tribe under the Indian Gaming Regulatory Act, including the right to have gambling casinos in any state where any form of gambling is legally permitted, regardless whether gambling is legal in Hawaii. Federally recognized tribes are not confined to individual states.

Even if gambling is not allowed in Hawaii, the Akaka tribe will be allowed to have casinos in all other states (except Utah). Here's language in the new Akaka bill that says the Akaka tribe is to be treated the same as every other federally recognized tribe. The new S.675 says it creates "a single Native Hawaiian governing entity that exercises the inherent powers of self-government of a native government under existing law with the same privileges and immunities available to other federally recognized Indian tribes" and the Akaka tribe shall "be considered to be an Indian tribe for purposes of section 104 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a–1)" and "The Secretary may consider the Native Hawaiian governing entity to be an Indian tribe for purposes of carrying out any activity authorized under the Act of June 18, 1934 (commonly known as the ‘‘Indian Reorganization Act’’) (25 U.S.C. 461 et seq.)."

In recent years some genuine Indian tribes have been purchasing land and building casinos many miles outside their reservations, even across state lines. Every state has Native Hawaiians; and many states have thousands of them. For example, in Census 2010 there were 74,932 Native Hawaiians living in California, which would make them the largest tribe in that state which already has many tribal casinos. In Census 2010 there were 237,107 Native Hawaiians living in states outside Hawaii. Surely the branches of the Akaka tribe in other states will want casinos; or the tribal headquarters in Honolulu might choose to put casinos there anyway.

Here's an example of how strenuously previous versions of the Akaka bill prohibited the Akaka tribe from gambling -- these prohibitions have now been removed from the bill. In the 111th Congress, the Akaka bill then-numbered S.708 and H.R.1711 was introduced on March 25, 2009 specifically for the purpose of adding very strong protections against gambling, because of renewed worries by the genuine tribes that the Akaka tribe might infringe on their turf. Note that part (b) of Section 10 explicitly prohibits the Akaka tribe from gambling "regardless of whether gaming by Native Hawaiians or the Native Hawaiian governing entity would be located on land within the State of Hawaii or within any other State or Territory of the United States." Here's the full text of Section 10 from the 2009 Akaka bill:

"SEC. 10. APPLICABILITY OF THE INDIAN GAMING REGULATORY ACT. (a) Prohibition- 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 thereunder promulgated by the Secretary or the National Indian Gaming Commission. (b) Applicability- The prohibition in subsection (a) related to the use of Indian Gaming Regulatory Act and inherent authority to game apply regardless of whether gaming by Native Hawaiians or the Native Hawaiian governing entity would be located on land within the State of Hawaii or within any other State or Territory of the United States."

Those protections in the 2009 Akaka bill explicitly anticipated that a federally recognized Akaka tribe could and would engage in gambling operations in other states, and prohibited that from happening Those protections are now totally absent from the new Akaka bill, and have been replaced by language anticipating and encouraging gambling operations.

The end of Section 6 of the new Akaka bill has a strange sentence which will be meaningless to anyone not familiar with the controversy over proposed legislation for Congress to do a "Carcieri fix." The controversy will be briefly described below, and is extremely significant in relation to the ability of newly recognized tribes to have gambling casinos. Here's the sentence:

"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."

Huh? What the heck does that mean? Why is it so important to the ability of the Akaka tribe to have gambling casinos, as well as gas stations, liquor stores, and other businesses that will be free from taxation, zoning laws, labor laws, or regulation by state and county governments?

In 2009 the U.S. Supreme Court ruled in Carcieri v. Salazar, 555 U.S. 379 that the term "now under Federal jurisdiction" in the 1934 Indian Reorganization Act referred only to tribes that were federally recognized in 1934 when the IRA became law. The Court ruled that "now" meant back in 1934, not the present moment (as the new tribes would like). Therefore, the Court ruled, the federal government cannot take land into trust for tribes that were recognized after 1934.

What does this have to do with casinos, tax-free booze and gasoline, etc.?When Congress passed legislation allowing tribes to operate casinos, and giving tribes priority in establishing casinos over non-Indian businesses, large numbers of Indian groups suddenly decided they wanted to become federally recognized tribes. Thus, numerous new tribes have been recognized since 1934. However, the only way for a tribe to get a casino, or other business that is free from state taxation and regulation, is for the tribe to persuade the federal government to take either existing reservation land or newly purchased land into trust. That means the land is now owned by the federal government (but held in trust for the tribe). Federally owned land cannot be taxed or regulated by state or local governments, because of the supremacy clause in the Constitution. But according to the Carcieri decision tribes recognized after 1934 cannot have the federal government take land into trust for them. Tribes recognized after 1934 have been banging loudly on the doors of Congress demanding legislation to overrule the Supreme Court; i.e., legislation that would change the law so that new tribes can have land taken into trust. But old, established tribes don't want the competition from new tribes; and the old tribes, many with casinos raking in hundreds of millions of dollars, have high-paid lobbyists opposing any Carcieri fix. So far, they have been successful in blocking it.

The Akaka tribe would clearly be a new tribe not recognized until after 1934 and therefore not able to have the federal government take land into trust and therefore not able to establish casinos (or tax free unregulated gas stations, liquor stores, tobacco shops, etc.). So the sentence at the end of Section 6 of the new Akaka bill is a special little Carcieri fix just for Dan Akaka's favorite tribe. The other new tribes recognized after 1934 should all be very angry that Senator Akaka is "fixing" his own tribe while leaving all the others in the dust. But the beloved old man is retiring -- getting out of Dodge before the other tribes have time to "count coup" on him.

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HUGE NATIVE HAWAIIAN TRIBE NOW ELIGIBLE AUTOMATICALLY FOR ALL EXISTING AND FUTURE FEDERAL TRIBAL BENEFIT PROGRAMS -- A GIGANTIC BULLY COMPETING AGAINST GENUINE BUT MUCH SMALLER TRIBES FOR GOODIES FROM A SHRINKING POT

According to Census 2010 there are now 527,077 Native Hawaiians in the United States. That's 126,000 more than in Census 2000. There are probably hundreds of thousands more who did not bother to check the box on their census form but who would step forward to count themselves as Native Hawaiians if they realize they can get government handouts as members of a federally recognized tribe.

The phony, artificially created Hawaiian tribe of 527,077 would be far larger than any of the genuine tribes in America. The largest tribe is Navajo, with 332,129. There are 819,105 Cherokees, but they are divided among several different tribal governments. Both the Akaka bill and Hawaii Act 195 specify that there shall be only one Native Hawaiian tribe. Census 2010 counted about 5.2 million Indians, with only about half of them belonging to any of about 560 federally recognized tribes; thus Native Hawaiians alone would become about 10% of all the Indians in America (perhaps 20% of all tribal members), where the average tribe except for Navajo and Cherokee has a size of fewer than 2,000 people and many tribes have only a few hundred.

A webpage "Census 2010 Native Hawaiian data -- some political implications for the Akaka bill, Act 195 state recognized tribe, and the Hawaiian grievance industry racial victimhood allegations" is at
http://www.angelfire.com/big09/Census2010NativeHawaiian.html

The genuine tribes should be very afraid that a Hawaiian tribe would overwhelm all of them in competing for a shrinking pot of federal handouts and for customers for Hawaiian casinos in every state (except Utah and perhaps Hawaii). There are limits to how much money the federal government can give to Indian tribes while facing a national debt of more than $16 Trillion and lowering of the credit rating of the U.S. by bond rating firms. That pot of gold is likely to shrink in coming years as the national debt becomes ever more worrisome.

Section 10(d) of S.675 before September 13 was put into the bill to allay the fears of the genuine Indian tribes that the new Akaka tribe would infringe on their turf. In part (d) the issue was not gambling, but rather the billions of dollars in handouts given to the tribes every year. Section 10(d) of the old Akaka bill said the Akaka tribe cannot automatically get government handouts in the same way as the genuine tribes, from that same pot of gold. Here are the very strong protections given to the genuine Indian tribes against the Akaka tribe under the Akaka bill before September 13. These protections are now gone.

"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." Also "In Federal statutes or regulations in force prior to the United States' recognition of the Native Hawaiian governing entity, the terms 'Indian' and 'Native American', and references to Indian tribes, bands, nations, pueblos, villages, or other organized groups or communities, shall not apply to the Native Hawaiian governing entity or its members, unless the Federal statute or regulation expressly applies to Native Hawaiians or the Native Hawaiian governing entity."

But not anymore. One way the new Akaka bill was shortened and "streamlined" was by removing all that language protecting the genuine tribes against the rapaciousness of the Akaka tribe. The Akaka tribe will be the 527,077 pound King Kong in the room where the goodies are handed out, while most of the genuine tribes have only a few hundred or a few thousand members and even the biggest one has only 332,129. The Akaka tribe will be immediately eligible for all tribal benefit programs already in place plus all the ones yet to be created.

The new S.675 creates "a single Native Hawaiian governing entity that exercises the inherent powers of self-government of a native government under existing law with the same privileges and immunities available to other federally recognized Indian tribes" and "be considered to be an Indian tribe for purposes of section 104 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a–1)" and "The Secretary may consider the Native Hawaiian governing entity to be an Indian tribe for purposes of carrying out any activity authorized under the Act of June 18, 1934 (commonly known as the ‘‘Indian Reorganization Act’’) (25 U.S.C. 461 et seq.)."

The Akaka bill can be rejected for reasons that do not attack the legitimacy of the genuine Indian tribes.

Most attacks against the Akaka bill would apply not only to the Akaka bill but also to several hundred federally recognized Indian tribes. For example, the Akaka bill is attacked on the grounds that it violates the Constitution's 14th Amendment equal protection clause prohibiting racial discrimination; the 15th Amendment clause prohibiting the denial or abridgment of the right to vote on account of race; the guarantee that every state shall have a republican form of government; the prohibition against titles of nobility; etc.

The Indian tribes have always considered it important to support the Akaka bill in order to protect their own existence, because federal recognition of an Indian tribe carries with it permission to exercise sovereignty based on racially exclusive membership and voting rights, racial discrimination, tribal governments that need not be democratic, etc. Tribes are allowed to engage in racial discrimination in ways that are prohibited to states and local governments,

However, the tribes run a great risk by allying themselves too closely to the Akaka bill. If Congress or the courts reject the Akaka bill for the broad Constitutional or policy reasons described above, then the tribes will thereby also suffer Congressional disfavor or come under attack in the courts. If the tribes insist that the reasons justifying their own existence are the same as the reasons why the Akaka bill is legitimate, then the inevitable defeat of the Akaka bill in Congress or the courts will take down the tribes as well.

There are important reasons why the Akaka bill is wrong historically, legally, and morally. Some of those reasons are unique to the proposed Akaka tribe. Therefore there will be no consequences to the genuine tribes if the Akaka bill is rejected by Congress or ruled unconstitutional by the courts for reasons that are unique.

It's safer for the tribes if the Akaka bill is rejected by Congress, because a vote can be cast without giving any reason for it, or giving only reasons that are unique to the Akaka bill. The greatest danger for the tribes is if the bill passes Congress and then comes under scutiny by the courts, because courts might very well overturn the Akaka bill for broader reasons that would also affect the tribes.

A webpage explains how the Akaka bill can be rejected for unique reasons that do not attack the legitimacy of the genuine Indian tribes.
http://www.angelfire.com/big09a/AkakaVsTribes.html

Considering how the new version of the Akaka bill authorizes the Akaka tribe to invade the casino markets already controlled by existing tribes, broadens the definition of "tribe" in a way that would allow creation of many hundreds of new tribes to compete against the old ones, and allows this huge new Akaka tribe to compete for all the government benefits available to tribes -- it would be wise for the genuine tribes to strongly oppose this new Akaka bill. A "dialog" has been created where two articles by tribal advocates defending the Akaka bill, published in "Indian Country Today", are answered by the essay explaining how the Akaka bill can be rejected for reasons which do not attack the legitimacy of the genuine tribes. The dialog is at
http://www.angelfire.com/big09a/DialogOpposeAkakaMeansOpposeTribes.html

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RACIAL BALKANIZATION IN THE CONTINENTAL 48 STATES; AND HOW THE NEW AKAKA BILL WORSENS IT BY AUTHORIZING FEDERAL RECOGNITION OF "INDIGENOUS" GROUPS EVEN THOUGH THEY WERE NEVER ORGANIZED AS TRIBES

Previous versions of the Akaka bill have tried to interpret the word "tribe" in the U.S. Constitution as though it means "indigenous people." That's because Native Hawaiians simply do not qualify to be a tribe according to the criteria and definitions applied to the actual tribes. So unless the Constitution is bent out of shape, Native Hawaiians do not qualify for federal recognition.

Although members of Indian tribes are racially Indians, the federal government does not recognize the entire racial group of Indians as being a tribe merely on account of race. To be federally recognized a tribe must prove that it is a political entity -- that it has had a tribal government which has exercised significant authority over its members from before Western contact continuously through the present.

25 CFR 83.7 establishes 7 mandatory criteria for a group of Indians to get federal recognition. That means the group must satisfy all 7 requirements. Groups have been rejected on account of failing only one of the seven. Native Hawaiians fail at least three of them. (a) Native Hawaiians have not been identified as an Indian entity on a continuous basis since 1900, (b) the predominant portion of Native Hawaiians do not comprise a distinct community that has existed as a community from historical times until the present, and (c) Native Hawaiians have not maintained political influence or authority over their members as an autonomous entity from historical times until the present. For a webpage providing details about the seven criteria, explaining why Native Hawaiians fail, and giving examples of Indian groups that were rejected, see
http://www.angelfire.com/hi2/hawaiiansovereignty/tribefederalrecognition.html

Only about half of all Indians belong to federally recognized tribes. The other half are nevertheless so-called "indigenous" people, even though most of them would not qualify for membership in any tribe. A webpage produced in 2008 listed 226 federally non-recognized tribes. "Federally Non-Recognized Tribe" is defined as a formally organized entity that has: applied for federal recognition and is not yet approved; or previously recognized and recognition was rescinded; applied for federal recognition and was rejected.
http://www.manataka.org/page237.html

Being a group of "indigenous" individuals is clearly not sufficient for federal recognition. The group must be a political entity with some sort of ruling chiefs or government that has exercised substantial authority over its members from before Western contact continuously until now. Native Hawaiians fail that requirement.

But perhaps Congress could just wave a magic wand to turn a sow's ear into a silk purse. Simply pass a law arbitrarily singling out a group of so-called "indigenous people" and declaring them to be an Indian tribe. That's the only way Native Hawaiians can ever get federal recognition. The Akaka bill is that magic wand. It's probably unconstitutional. Congress probably doesn't have the power to do that. If it tries, the Supreme Court will have to interpret the Constitution and rule whether Congress overstepped its limits. Some Hawaiians have said Congress should go ahead and pass the bill so that the Supreme Court can decide whether it's constitutional. But that's like Nancy Pelosi saying Congress should pass a bill so they can see what's in it. Members of Congress take a solemn oath to support and defend the Constitution -- they are obligated to do the research and to believe a bill is constitutional before they vote for it.

If Congress passes the Akaka bill some other groups of "indigenous people" who fail the requirements for federal recognition might file lawsuits demanding to be treated the same way under the equal protection clause of the 14th Amendment. The largest, most politically active group that might try that is the "Nation of Aztlan" consisting of all Mexican-Americans with at least one drop of Aztec or Mayan blood. The leaders of this movement demand the right to create a race-based government that would control all the lands in the U.S. that were formerly a part of Mexico: California, Arizona, New Mexico, Texas, and portions of Nevada, Colorado, and other areas. For an in-depth look at this issue see "Hawaiian Nationalism, Chicano Nationalism, Black Nationalism, Indian Tribes, and Reparations -- Akaka Bill Sets a Precedent for the Balkanization of America" at
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaHawnChicanoNatnl.html

A book by Elaine Willman focuses on how America is being balkanized by the ever-increasing number of Indian tribes and their ever-increasing land holdings and political power. The book is "Going to Pieces: The Dismantling of the United States of America." If our laws are changed to allow Congress to single out any group of so-called "indigenous people" and give them federal recognition, then there might soon be thousands of Indian tribes whereas now there are only a few hundred.

Section 2, "Finding" number 2, includes the following language that would put Congress on record as expanding its authority to apply to all of America's "indigenous" people and not only the Indian tribes:

"the Constitution vests Congress with the authority to address the conditions of the indigenous, native peoples of the United States under provisions including -- (A) clause 3 of section 8 of article I, the Property, Treaty, and Supremacy clauses, and the War Powers clause; and (B) the original Apportionment clause and the Fourteenth Amendment Citizenship and amended Apportionment clauses"

Section 2, finding 8 says "the State of Hawaii has long supported the Federal reaffirmation of the special political and legal relationship with the Native Hawaiian people and a recognition of the Native Hawaiian governing entity by the United States, as evidenced by numerous actions, including through the enactment of Act 195 (2011), which -- (A) recognizes the Native Hawaiian people as the only indigenous, native people of Hawaii ..."

Section 3, Definition #2, goes further by asserting that "The term ‘‘indigenous, native people’’ means any of the peoples referred to in the Constitution as ‘‘Indians’’ and ‘‘Tribes’’ that are the original inhabitants who exercised sovereignty over any area that later became part of the United States, including their lineal descendants."

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THE NEW AKAKA BILL IS A PIG IN A POKE. EXAMPLE: THE RACIAL BALKANIZATION OF HAWAII, AND HOW THE NEW AKAKA BILL CONCEALS IT

The most dangerous threat from the Akaka bill has always been racial balkanization. That catastrophically affects Hawaii and also worsens the problem nationwide.

The new Akaka bill is a pig in a poke -- it asks Congress to grant federal recognition to a tribe which has not yet been created. Senator Akaka's calling the bill "streamlined" is a euphemism for concealed action lacking accountabiity or Congressional oversight. The tribe will be recognized immediately when the bill is passed -- before its members have enrolled, before a tribal council has been elected, before a tribal constitution has been written and ratified, etc.

During 2009 and 2010 a major controversy erupted in Hawaii when the all-Democrat Congressional delegation secretly created a new version of the Akaka bill which granted immediate authority to the Akaka tribe even before it entered negotiations with the state. Republican Governor Lingle and Attorney General Bennett filed written objections with the House Committee on Natural Resources where Representative Abercrombie was ready to spring the new bill on the committee a couple days later and ram it through. Lingle sent letters to all 100 Senators withdrawing her support from the bill. This bit of history shows that the question when the Akaka tribe gets full authority is an important and controversial issue. But the new Akaka bill of 2012 sidesteps that matter entirely.

Here's another example. On October 11, 2010 Senator Inouye started a stealth maneuver which came to light on October 24. During committee markup of an appropriations bill (he is chairman of the committee) Inouye inserted the following sentence into Section 420 of the bill: "Now and hereafter, in exercise of the authority delegated under sections 441, 442, 463 and 465 of the Revised Statutes (43 U.S.C. 1457, 25 U.S.C. 2 and 9), the community recognized by and enrolled pursuant to Act 195 (26th Haw. Leg. Sess. (2011)) may be recognized and listed under section 104 of Public Law 103–454 but not entitled to programs and services available to entities thereunder unless a statute governing such a program or service expressly provides otherwise."

That sentence was extraordinarily powerful and dangerous. It caused an uproar in Hawaii when it was discovered hiding in the appropriations bill. It would have the effect of simply adding "Native Hawaiians" to the list of federally recognized tribes, without any due process for creating the tribe and without any of the protections for the people of Hawaii that were included in previous versions of the Akaka bill. The sentence was later removed by Republicans when the appropriations bill went to a conference committee with the House. But the new Akaka bill of September 13, 2012 accomplishes the same purpose, and without even the small protection of Senator Inouye's clause "but not entitled to programs and services available to entities thereunder unless a statute governing such a program or service expressly provides otherwise."

In Hawaii, our lands and people would be divided along racial lines. The new version of the Akaka bill hides its racism by containing language suggesting that the Akaka tribe might allow members with no native blood; yet the bill transfers authority to the racial registry being created under Hawaii Act 195 where Hawaiian blood is required and must be proved with documentation. Act 195 and the membership registry now underway have three requirements: 18 years of age, Hawaiian native ancestry, and affiliation with a Native Hawaiian group. That third requirement was added to the Akaka bill in recent years, and to Act 195, solely as a subterfuge or pretext, to give the appearance that the Akaka tribe is a political entity and not merely a racial group. Up to now, being a political entity has always been a requirement for getting federal recognition.

Previous versions of the Akaka bill laid out exactly what would be the requirements for joining the tribe, who would judge membership applications, etc.; even specifying that there would be ten genealogists capable of reading Hawaiian language who would certify that people applying for membership met the ancestral racial qualifications. The whole process was out in the open for Congress to see and approve. But the new version of the bill does not specify the requirements for tribal membership. Instead, the new bill merely refers to Hawaii Act 195 (2011), and to a membership registration process established by the state under Act 195. How the process is carried out will not be monitored by Congress or any federal agency. Presumably Act 195 itself could be amended, or the state's administrative procedures for conducting membership registration could be changed; and Congress would never be told.

Let's compare previous versions of the Akaka bill against the new version with regard to setting up the tribe and signing up members. We'll see that the Akaka tribe is being set up entirely based on race and requiring documented proof of racial ancestry, with only lip service to political or cultural affiliation and no documentation required to prove it.

The new version of the Akaka bill partly conceals its racism by noting that the tribe might choose to allow membership to people with no native ancestry. Section 6 says that the native Hawaiian Governing entity shall have the power "to determine membership in, and membership criteria for, the Native Hawaiian people; and 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."

In other words, the bill says the tribal council could give tribal membership to someone with no native blood. There's nothing unusual about that -- all Indian tribes, once recognized, have the right to change their membership requirements and to enroll non-Indians if they wish. Not all tribes do that; and tribes that do it almost always allow non-Indians only as "honorary members" without the right to vote or hold tribal office. However the entire process in the new Akaka bill, from enrolling the charter group of members, electing officers, up to writing and ratifying a tribal constitution, requires all participants to have Hawaiian native blood.

Hawaii Act 195, and the membership registration process underway to implement it, are both ruthlessly racial. A webpage tracing the history of Act 195 and the creation of its Roll Commission is at
http://www.angelfire.com/big09/SB1520StateRecognizedTribe.html

The name of the process for creating a membership roll is "Kana'iolowalu". It has a website at
http://kanaiolowalu.org/
A description of the registration process is at
http://kanaiolowalu.org/registernow/
A registration form is at
http://kanaiolowalu.org/wp-content/uploads/2012/07/011_03_RegistrationForm_v7-5-12.pdf
The form includes the following three Declarations, to which the registrant affixes his signature:
Declaration One. I affirm the unrelinquished sovereignty of the Native Hawaiian people, and my intent to participate in the process of self-governance.
Declaration Two. I have a significant cultural, social or civic connection to the Native Hawaiian community.
Declaration Three. I am a Native Hawaiian: a lineal descendant of the people who lived and exercised sovereignty in the Hawaiian islands prior to 1778, or a person who is eligible for the programs of the Hawaiian Homes Commission Act, 1920, or a direct lineal descendant of that person.

The registration form has stringent requirements for verifying Hawaiian native ancestry. But there are zero requirements for verifying "a significant cultural, social or civic connection to the Native Hawaiian community." The form does not even ask for the name of any organization or description of the applicant's Hawaiian cultural connection. Thus the form demonstrates that the Act 195 requirement for a political or cultural connection is merely a subterfuge to give the appearance that the Akaka tribe is a political entity. The only requirement being verified is the racial one. The registration form demands:

I verify my ancestry through one of the following:
Birth certificate
Other certificate listing Hawaiian or Part-Hawaiian (death, marriage, baptismal, etc)
Kama'äina Witness Form
Attended The Kamehameha Schools, Class of ______, and attest to being Native Hawaiian
I have previously received confirmation of my Hawaiian ancestry from:
Dept of Hawaiian Home Lands Kamehameha Schools Ho'oulu Hawaiian Data Center
Operation 'Ohana # Hawaiian Registry at OHA #____
Kau Inoa (ancestry confirmed) Other:
If "Hawaiian" or "part Hawaiian" is not on the birth certificate, or if no certificate is produced: Full name of the parent(s) who is/are Native Hawaiian as it appears on her/his birth certificate.
FIRST NAME MIDDLE NAME LAST NAME
BIRTH DATE (MM/DD/YYYY) BIRTH PLACE
FIRST NAME MIDDLE NAME LAST NAME
BIRTH DATE (MM/DD/YYYY) BIRTH PLACE
SIGNATURE
➤ ➤ I affirm the Kana'iolowalu Declaration.
➤ ➤ I authorize the organization named or government agency such as the Department of Health to release my information for the purposes of confirming my ancestry for this registry.
➤ ➤ I hereby declare that the information provided is true and accurate to the best of my knowledge. If any of the statements are proven to be misleading or false my name may be removed from the official list and other penalties may be imposed under law.

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VIRTUALLY ALL FEDERAL AND STATE LANDS AND WATERS IN HAWAII MIGHT BE SWALLOWED UP BY THE AKAKA TRIBE BECAUSE THE INDIAN NON-INTERCOURSE ACT IS NO LONGER PROHIBITED TO THE AKAKA TRIBE AND THERE IS NO STATUTE OF LIMITATIONS ON CLAIMS FOR PAST EVENTS NOR ANY TIME LIMIT FOR ASSERTING CLAIMS

Under recent versions of the Akaka bill, the Akaka tribe was prohibited from using the Indian non-intercourse act to win lawsuits against the federal and state governments for purchases or transfers of land that happened without specific Congressional approval. The new Akaka bill abandons that protection, and thereby opens up a hornets nest of future lawsuits making use of the Indian non-intercourse act to claim that all federal and state lands in Hawaii rightfully belong to the Akaka tribe.

From 1790 to 1834 a series of six laws were passed by Congress to protect Indian tribes from unfair or deceptive land transactions whereby tribes often gave away or sold their land very cheaply to white businessmen or to state or municipal governments. Those laws, collectively known as the Indian non-intercourse law, required the approval of Congress before any land transactions with Indian tribes could be confirmed lawfully. During recent decades numerous tribes have gone to court demanding huge amounts of land or money based on claims that tribal lands were sold without Congressional approval. Often those lands now have been fully developed, with entire towns on them, or farms and factories. Thousands of homeowners have been unable to get mortgages or to sell their homes because of the cloud on their land title when a tribe files a lawsuit under the non-intercourse act.

In Hawaii there is great controversy over the "ceded lands" and assertions by Hawaiian activists that all lands formerly owned by the government and/or the monarch of the Kingdom of Hawaii were improperly ceded to the U.S. at the time of annexation (1898) and continue to be improperly held by the federal and state governments today. The ceded lands include all federal lands such as military bases and national parks; and about 95% of all the land owned by the State of Hawaii and used for schools, airports, harbors, roads, parks, etc. Under the new bill, armed with the Indian non-intercourse act, the Akaka tribe will be free to file lawsuits to take control of such lands or to receive massive compensation for them, similar to what has happened on the mainland even in long-established towns in Maine, New York, and many other places.

For many years a lawsuit worked its way through the courts in which the Office of Hawaiian Affairs and a group of Native Hawaiian individuals sought a permanent injunction prohibiting the State of Hawaii from selling any parcel of the ceded lands without permission from Native Hawaiians. The Hawaii Supreme Court ruled unanimously in favor of the plaintiffs. But on March 31, 2009 the U.S. Supreme Court ruled unanimously to overturn the state court's decision. Nearly all the legal briefs and court decisions, news reports, and commentaries throughout the lawsuit are compiled at
http://bigfiles90.angelfire.com/CededNoSell.html

The U.S. Supreme Court ruled that the ceded lands belong to the State of Hawaii in fee simple absolute, and the State has the right to sell them without permission from Native Hawaiians. The Court ruled that the U.S. apology resolution of 1993 has no legally enforceable consequences, and certainly cannot be used to overturn the fee simple ownership of the ceded lands given by the U.S. to the State of Hawaii in the Statehood act of 1959. The Indian non-intercourse act had no bearing on the Supreme Court's ruling in 2009, because Native Hawaiians were not a federally recognized tribe and because even if they were, the bill granting them recognition at that time would have included the protection prohibiting the Akaka tribe from using the non-intercourse act.

However, if the Akaka tribe is now allowed to use the Indian non-intercourse act to attack the State's ownership of the ceded lands, that will be an entirely different matter. In that case the Supreme Court's ruling in 2009 might be set aside by a new ruling based on the Indian non-intercourse act which might say that the original transfer of lands in 1898 and again in 1959 violated the rights of the Native Hawaiians.

Previous versions of the Akaka bill imposed a statute of limitations that land transfers prior to enactment of the bill could not be challenged, and/or a time limit for filing future lawsuits against the federal, state, and county governments regarding events from before the bill was passed. There is neither a statute of limitations nor a time limit in the new bill. Indeed, the new bill removes the language from previous bills that prohibited the Akaka tribe from using the Indian non-intercourse act.

Here's the protection found in section 10(e) of the Akaka bill before September 13 which prohibited such lawsuits by the Akaka tribe; but the prohibition has now been removed:

"Real Property Transfers- Section 2116 of the Revised Statutes (commonly known as the `Indian Trade and Intercourse Act') (25 U.S.C. 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."

What lands will be claimed by the Akaka tribe harnessing the power of the non-intercourse act and in the absence of any statute of limitations or waiver of claims for actions prior to enactment of the Akaka bill? About half of all the lands of the eight main Hawaiian islands are under threat. Here's a map showing some of them:
http://www.angelfire.com/hi5/bigfiles3/AkakaTribeLandsAdv080505.pdf

In addition, all the islands in the Hawaiian archipelago from the main islands running about 1200 miles to Midway, Johnson, and Kure Atoll are likely to be affected -- the area which is now the Papahānaumokuākea Marine National Monument, including all the waters and seabeds and fish in a roughly rectangular box 400 miles wide (200 miles on each side of those islands).

Language forbidding the Akaka tribe from invoking the Indian non-intercourse act is only one of many protections found in most previous versions of the Akaka bill which have now been repudiated in the new September 13 version. But this is deja vu. Occasionally there have been other versions which also repudiated many protections. One such version was introduced on February 4, 2009. A webpage describes many of the protections repudiated in that bill, all of which are once again repudiated in this latest version. For details see
http://www.angelfire.com/big09a/AkakaDejaVuFeb2009.html

But even if all the protections were restored, the whole concept of the Akaka bill is so immoral and racist that it must always be rejected.


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Ken_Conklin@yahoo.com

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