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Akaka bill through the backdoor in Fall 2012 ?


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

What's the prognosis for the Akaka bill during the remainder of President Obama's first (and only?) term?

Congress is approaching its annual 5-week August recess (returning September 10). With so little time left in the 112th Congress, and so much important budget and tax legislation that must be passed, it seems very unlikely that the Akaka bill could come to the floor of the House or Senate for an up-or-down vote.

But the bill is far from dead. It might get added as a rider in some other bill. It might be included in a bill or an executive order simultaneously granting federal recognition to a group of so-called tribes whose efforts to get recognized have been bogged down in the Bureau of Indian Affairs for many years. Confusion and haste at the end of the "taxmageddon" lame duck session following the election could be used as camouflage to sneak the bill through. For example, it might get incorporated "by reference" as a single sentence deep inside the omnibus appropriations bill expected to be thousands of pages long. The appropriations committee chairman is Dan Inouye, who nearly succeeded with precisely that maneuver 12 years ago when he was only the chairman of the defense appropriations subcommittee.

On July 12, 2012 the Senate Indian Affairs Committee (Dan Akaka, chairman; Dan Inouye, member) held an oversight hearing on procedures for federal recognition. The hearing did not discuss the Akaka bill, but was well-orchestrated to lay the groundwork for an effort to pass it. Senator Jim Webb (D-VA) testified that there are six tribes in Virginia who have been trying for many years to get federal recognition through the normal process in the Bureau of Indian Affairs but fail to satisfy some of the requirements. Webb wants Congress to pass a bill recognizing them. Spokesmen for other tribes gave similar testimony. The video of the July 12 committee hearing along with the written testimony of all participants, is available on the internet (caution: the first 65 minutes are blank because the hearing started late, so use the timer scroll bar).
http://www.indian.senate.gov/hearings/hearing.cfm?hearingID=e732c9af25adb336b52074279297237e

Senators Webb and Akaka are both retiring in 2012, and would love to get their own tribes recognized, along with numerous others, before they depart. It seems logical that a large group of Senators might cooperate with each other in a classic "logrolling" scheme to vote with each other to get all their tribes recognized, despite the havoc that would bring to their states and communities. Senator Webb and representatives of several tribes at the Senate committee hearing pointed out that the procedures for applying for federal recognition are hard to understand, require voluminous paperwork, are extremely slow and cumbersome, and lack transparency and accountability. Besides, those procedures allow non-Indians to interfere in the right to self-determination that supposedly should be for Indians alone to decide. The Senate was urged to amend the regulations (we can't get recognized according to the rules, so let's change the rules), and to override the regulations by having Congress pass specific bills to recognize particular tribes even though they do not satisfy the law (screw the rules and just give us what we want).

The U.S. Code of Federal Regulations (the federal government's version of the Hawaii Revised Statutes), at 25 CFR 83.7, lists seven mandatory criteria which a group of Indians must meet in order to get federal recognition that they are a tribe. Every one of the seven criteria must be satisfied, including numerous detailed sub-categories. 562 tribes have been recognized. Hundreds more would-be tribes have applied; most have spent 10-20 years filing documentation to prove they meet all the criteria; and many have been refused recognition for failing to meet one or more requirements. Three of the seven major criteria are commonsense descriptions of what anyone would expect an Indian tribe to be. A group must have been identified as an Indian entity on a continuous basis since 1900. The predominant portion of the group must comprise a distinct community that has existed as a community from historical times until the present. The group must have maintained political influence or authority over its members as an autonomous entity from historical times until the present. Ethnic Hawaiians fail to meet any of those requirements. A detailed description of the seven mandatory criteria, including examples of Indian groups who were refused recognition, is at
http://www.angelfire.com/hi2/hawaiiansovereignty/tribefederalrecognition.html

Efforts to get federal recognition for the Akaka tribe, the six Virginia tribes, and numerous other tribes are not limited to Congress. If the normal recognition process of the Bureau of Indian Affairs is too cumbersome and slow, and Congress has too much work and not enough time to pass a bill to recognize them, then why not use political influence to get the job done by following other pathways through the executive branch?

President Obama's father from Kenya and mother from Kansas met at the University of Hawaii (in a Russian language course at the height of the Cold War!). Obama was born in Hawaii, spent his formative years in Hawaii, and vacations in Hawaii every Christmas. Hawaii Governor Neil Abercrombie, who was a Congressman for many years, pushed the Akaka bill to passage in the House three different years. A young, very radical Abercrombie was a personal friend of Obama and his mother and grandparents while Obama was growing up in the absence of his globetrotting playboy father. Obama has already stated publicly, on numerous occasions, that he favors federal recognition for ethnic Hawaiians.

The basic concept of the Akaka bill could get implemented through dubious but superficially plausible administrative procedures in the executive branch, even if Congress does nothing.

No doubt President Obama can find some way to get some part of the executive bureaucracy to circumvent Congress, the Bureau of Indian Affairs, 25 CFR 83.7, and all other obstacles. Perhaps the way to do it is to simply add the Akaka tribe to the list of federally recognized tribes merely by publishing it in the Federal Register, following the same process whereby hundreds of other new laws are arbitrarily created every month by regulatory agencies.

Something like that is clearly underway behind the scenes. There have been repeated hints about it. For example, the OHA monthly newspaper for January 2012, pp. 14-17, includes the "State of OHA" speech by incoming OHA chair Collette Machado in which she says "OHA spent 10 years pursuing the passage of the Akaka bill and dealt with multiple obstacles along every step of that path. We will not give up. We are committed to gaining federal protection of Känaka 'Öiwi rights. Within the last year, OHA has started to open up alternate legislative and executive routes in coordination with Sen. Daniel Akaka, Sen. Daniel Inouye and the Senate Committee on Indian Affairs. President Barack Obama is a strong partner in this effort. OHA will aggressively pursue these legislative and executive paths throughout the next year."
http://www.oha.org/kwo/2012/01/KWO1201web.pdf

Would President Obama bend or break the laws regarding federal recognition in order to help his friends in Hawaii? Obama has repeatedly shown that he has little respect for his obligation to "take care that the laws be faithfully executed" (U.S. Constitution Article 2 Section 3). For example, he announced that he will support gay rights for federal workers and military personnel, by not allowing the Department of Justice to file legal briefs invoking the Defense of Marriage Act in federal court lawsuits. For example, Obama announced he will unilaterally implement the "Dream Act" which Congress has rejected, by ordering the Department of Justice not to pursue deportation for illegal immigrants who have not broken laws other than those related to immigration. For example, Obama has withdrawn federal cooperation with Arizona to identify illegal aliens, following a Supreme Court ruling that Arizona police are allowed to demand verification of legal status during traffic stops. For example, Obama's Department of Justice dismissed civil rights charges against members of the New Black Panthers who had intimidated voters during the 2008 election -- dismissing those charges even after career DOJ attorneys had been successful in prosecuting the Panthers.

It's also interesting that the Association of Hawaiian Civic Clubs has decided to hold its annual convention, in October 2012, in Washington D.C. (instead of Honolulu, or Las Vegas). Guess why? And OHA will spend $200,000 to help pay the expenses of "over 500 participants from the 60 Civic Clubs across the nation who will discuss the strategic direction for Native Hawaiians in 2013." 500 Hawaiians can easily have several people lobby each of the 100 Senators to pass the Akaka bill while they are in Washington for their convention, and can send people to lobby administrators in the Department of Interior and Department of Justice. See the Civic Clubs announcement at
http://aohcc.org/index.php?option=com_content&view=article&id=265:news-release-oha-ahcc-partnership-for-convention-2012&catid=61:community-relations&Itemid=341

The Civic Clubs announcement also mentions its wholly-owned subsidiary Hawai'i Maoli, a tax-exempt organization funded by OHA. Hawaii Maoli has collected names, genealogies, and contact information of about 120,000 ethnic Hawaiians who have signed up for the Kau Inoa racial registry expected to become the base for the membership roll for an Akaka tribe. The Hawaii Maoli website (including a link to a webpage about the Kau Inoa racial registry) is at
http://www.hawaiimaoli.org/

Support for the Akaka bill during its 12 years in Congress has followed a classic head-and-shoulders chart pattern which stock market technical experts utilize to predict that the stock value will continue falling.

Numerous versions of the Akaka bill have been officially under consideration in Congress since the Summer of 2000. For the first few years the bill had little support but passed the House because it was managed through stealth procedures and escaped notice. It passed the House on a voice vote, under suspension of the rules, at dinner time, on the calendar of non-controversial bills, when only a handful of Representatives were present. It then passed the Senate temporarily when Senator Inouye added it as a unilateral earmark in the middle of the night, by putting its bill number in a single sentence deep inside a huge defense appropriations bill -- until a Republican staffer caught it at the last moment. Republicans forced Inouye to remove the earmark because a longstanding Senate rule (which Inouye undoubtedly knew) prohibits policy legislation from being inserted as an earmark in an appropriations bill. See "A History of Stealth and Deception Re Akaka Bill" at
http://www.angelfire.com/hi2/hawaiiansovereignty/StealthDeception.html

During the mid-2000s the Akaka bill became highly controversial as hundreds of commentators published strongly-worded articles opposing it in newspapers and magazines of national circulation, while Republican Senators placed holds preventing the bill from coming to the floor. See full text of hundreds of articles opposing the Akaka bill from 2000 to now, at
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaPublishedOpposition.html

In 2005 God intervened to stop the Akaka bill when Hurricane Katrina blew it off the Senate schedule. In 2006 a Republican filibuster blocked it when a cloture motion was debated for 6 hours on the Senate floor over a two day period, televised on C-SPAN, and lost. Full text of the entire floor debate and voting record June 7-9, 2006 plus news reports and commentary, are at
http://www.angelfire.com/planet/bigfiles40/AkakaHistJuneStartJun72006.html

Since then Republican Senators have continued to block the Akaka bill while public awareness of it has slowly faded. Now, in the 112th Congress, the bill is back where it started, lurking out of sight in the background with occasional rumors and stealth maneuvers.

On October 14, 2011 Senator Inouye began a stealth maneuver in a Senate committee draft of a large appropriations bill. On October 24 it was reported that he had inserted a single sentence to add the state-recognized Act 195 tribe to the list of federally recognized tribes. That stealth maneuver was defeated December 16 when House Republicans forced removal of Inouye's sentence during final markup of an omnibus appropriations bill. Inouye and Akaka both vowed to continue efforts to get federal recognition of ethnic Hawaiians by any means necessary. See full text of all related news reports at
http://big09.angelfire.com/AkakaHistStartOct24of2011.html

If all else fails, President Obama could unilaterally proclaim an Executive Order recognizing the Akaka tribe. He could do that anytime during his second term in office. Or, if Obama loses the election, he could issue such an Executive Order anytime until he leaves office at noon on January 20. However, President Romney could undo that with his own Executive Order as soon as January 21.

When a President of one party is followed by a President of the opposite party, there is often a flurry of Executive Orders by the outgoing President, many of which are reversed a few weeks or months later through Executive Orders by the incoming President. One such order and counter-order of special relevance to the Akaka bill happened during the transition from President George H.W. Bush (the elder) to President Bill Clinton in 1993. On January 19, 1993 (last full day of the Bush administration), Thomas L. Sansonetti, Solicitor General of the Department of Interior, issued a 20-page official Opinion that there is no federal trust relationship with Native Hawaiians. But on November 15, 1993 the new Solicitor General of the Department of Interior, John D. Leshy, issued a one-page Opinion formally withdrawing the Sansonetti Opinion. Leshy's Opinion was issued on November 15 to coincide with the Apology Resolution which passed the Senate on October 27, passed the House on November 15, and was signed by President Clinton on November 23, 1993.


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