(c) Copyright August 6, 2013
Kenneth R. Conklin, Ph.D.
All rights reserved
Congress is on vacation for the month of August. Thus one-third of the 113th Congress (8 of its 24 months) has expired, and the perennial Akaka bill has still not been introduced. What's going on?
Attention is focused on creating a state-recognized tribe, as OHA makes its latest attempt to drag ethnic Hawaiians into signing up for a very unpopular racial registry. Once it has a membership roll and has formed a government, the state-recognized tribe will no doubt demand land, money, and jurisdictional authority. A compliant state legislature will feel obligated to give them what they want. But without federal recognition, the tribe has limited clout. The huge number of existing Hawaiian racial entitlement programs funded by the state and federal governments might wither or be ruled unconstitutional. 856 grants totaling approximately $322,220,808 were already identified and described on a webpage "For Hawaiians Only" until it went dormant a few years ago:
A tribe with only state recognition but not federal recognition is like someone who has a "promise ring" but never gets the actual marriage. There are exciting benefits but they are limited in scope and offer no long-term security. The main purpose for the Kana'iolowalu racial registry is to set up a state-recognized Akaka tribe. And the main purpose for setting up a state-recognized tribe is to seek federal recognition of it.
Regarding Congressional action: federal recognition could come through straightforward passage of an Akaka bill; or through a stealth maneuver whereby the budget for the Department of Interior might suddenly have a clause inserted adding the "Native Hawaiian" tribe onto the list of federally recognized tribes. Both of those strategies have been tried many times in the last 13 years but with no success.
Regarding executive action: federal recognition could come through a regulatory shuffle in the Bureau of Indian Affairs or Department of Interior regarding the procedures used for granting recognition; or the President might issue an Executive Order through a posting in the daily Federal Register. 25 CFR 83 is currently undergoing review leading to amendments -- this is the portion of the Code of Federal Regulations dealing with the procedure whereby the U.S. Department of Interior grants federal recognition to Indian tribes. Until now the scope of 25 CFR 83 has been limited to the continental 48 states and Alaska; and none of the proposed amendments would add Hawaii. But at any moment that could change -- the amendment process seems to invite stealth. An analysis of what's happening with revisions to 25 CFR 83 is available at
and a 23-page proposed rewording of it showing insertions and deletions is available on the Bureau of Indian Affairs website at
Whether Congressional action or executive action is the route to federal recognition, the latest idea is to first create a tribal government recognized by the State of Hawaii, which could negotiate with the State for land, money, and jurisdictional authority; and which might then also seek federal recognition. The first step in creating a tribal government is to identify who are the members of the tribe.
OHA is building a new racial registry called "Kana'iolowalu" implementing Hawaii Act 195 of 2011. Although Census 2010 counted 527,077 people in the U.S. who call themselves Native Hawaiian,
only 9300 of them had signed up during the first year, thus showing that the vast majority either oppose the whole concept or don't care.
OHA officials got so worried they pushed a bill through the legislature (Act 77 of 2013) to authorize the Kana'iolowalu list to automatically add the names of more than a hundred thousand who had signed up for previous racial registries at OHA, Kamehameha Schools, etc. during a period of about 20 years. Of course it's morally and legally wrong to drag people into a membership group who never agreed to become members, especially when the new group has different affirmations and goals from all the previous groups. And it's also politically ineffective to assert that the large membership of the new group supports the goals of tribal nationhood and the claim to unrelinquished sovereignty, when the vast majority of the "members" find themselves in the group solely because they previously verified ancestry to qualify for racial entitlements from other programs sponsored by OHA, Kamehameha Schools, etc.
Suppose Native Hawaiians are able to create a membership group that gets federal recognition as an Indian tribe. What would be the consequences for the State of Hawaii, for local businesses, for a million citizens of Hawaii who have no native blood, for ethnic Hawaiians who become members of the tribe, and for ethnic Hawaiians who choose not to become members? About ten years ago a webpage was created which pulled together published news reports and new commentaries about those topics:
But instead of merely wondering and speculating, we can look at what's actually happening in the 48 states on the mainland.
Many struggles between Indian tribes and local communities are so bound up in unique local issues that it can be hard to see what relevance they have to Hawaii. But in December 2011 I pulled together 13 news reports from the final 13 weeks of that year from various places on the mainland. For each situation I described the facts, cited a link to the full news report, and made clear exactly how the controversy is relevant to Hawaii. See
The topics as made relevant to Hawaii were:
• Promises or contracts made by the Hawaiian tribe cannot be enforced because the tribe cannot be sued on account of tribal sovereignty;
• Counties cannot assess taxes on tribal property nor use foreclosure to collect taxes;
• Counties cannot assess or collect taxes on gasoline purchased or used on Hawaiian tribe lands which is used or purchased on non-tribal lands;
• A Hawaiian tribe could purchase land and have the Bureau of Indian Affairs put it into federal land trust, thereby removing all tribal businesses on that land from local taxation, and neither the state nor counties can stop the BIA from doing so [news reports concerning two different locations and tribes];
• If a member of the Hawaiian tribe is raped or beaten up by a spouse or friend in a house on tribal land, should a tribal court have jurisdiction to put the spouse or friend on trial and send him to jail even though that spouse or friend has no Hawaiian native blood or is not a tribal member?
• A Hawaiian tribe, either through neglect or intentional policy, could allow its lands to become a sanctuary for criminal activity which state and county governments would be powerless to stop;
• Should the Hawaiian tribe be given a large tract of undeveloped land because the tribe claims to be the rightful owner and/or because it promises to be a good steward of the land?
• A state-recognized tribe might spend many years unsuccessfully seeking federal recognition, and is likely to break promises and engage in corrupt practices while seeking federal recognition or a casino.;
• State recognition of a Hawaiian tribe could lead to federal recognition with unexpected consequences including casinos.;
• A Hawaiian tribe might have priority over non-tribal businesses when a casino is to be created; and such a priority if enacted by a state legislature might be unconstitutional.;
• Once the Hawaiian tribe has published its roll of members and has been recognized, the tribal council can enroll or disenroll people for no good reason, and sovereignty ensures no state or federal court can interfere.;
• Members of the Hawaiian tribe have no right to freedom of speech.; The tribal council might kick out of the tribe dissident members who support a different slate of candidates for the next tribal election, thus "fixing" the election, and the dissidents have no way to appeal their disenrollment except in a tribal court controlled by the existing council.
This year I decided that instead of looking at a wide range of topics from a three month period, I would select news reports about a single topic from a single week. So at the end of July I put the following phrase into Google, including the quote marks: "tribal jurisdiction"; and I narrowed the search to the most recent week.
This topic, "tribal jurisdiction", is especially relevant to Hawaii because of the very large number of parcels of land scattered everywhere throughout the eight major Hawaiian islands that are likely to be included in the land base of the Akaka tribe. There would be constant jurisdictional conflicts between the tribe and the neighboring lands owned by federal, state, and county governments and private residents. The checkerboard scattering of "Native Hawaiian" tribal lands throughout rural and urban areas in Hawaii is very different from other states where a tribe most likely has a single reservation which is most likely located in a remote place. See a map showing the wide scattering of likely "Native Hawaiian" tribal lands:
And note that the map does not account for the widely scattered lands owned by Bishop Estate (Kamehameha Schools), which is Hawaii's largest private landowner and would probably re-incorporate itself out of the State of Hawaii and into the Akaka tribe to protect its racially exclusionary admissions policy and its tax-exempt status.
Whether the legal analyses in these articles are correct or wrong, the controversies are very real and are causing long delays, and economic and emotional distress, to the governments, corporations, and individuals involved. Do we want to invite such controversies into Hawaii, in addition to the numerous troubles we already have with "Hawaiian rights"? For example, see a webpage describing racial easements on all public and private lands in Hawaii: "How Hawaiian racial entitlements take away rights from private and government landowners in ways unique among the 50 states"
There are plenty of other topics deeply relevant to Hawaii that could have been investigated -- try a Google search for "baby Veronica" or "violence against women act" or "Carcieri fix." It's astonishing that our Congressional delegation, state legislators, and kindhearted citizens concerned about the "plight of the Native Hawaiians" know very little about federal Indian law and the devastating consequences of bringing it into Hawaii.
For example, how many people know about the Indian Child Welfare Act and its impact on child custody decisions during divorce or adoption proceedings where one parent has even a small amount of Indian blood while the other does not? In the Baby Veronica case, a father who had signed documents giving up his rights to child custody suddenly changed his mind and invoked his rights under ICWA because he has two percent Cherokee blood and is an enrolled member of that tribe. The child was moved back and forth between the father and an adoptive couple as the case worked its way up through the Cherokee tribal court, state and federal courts until the U.S. Supreme Court overruled the state Supreme Court in June 2013. Imagine how many similar situations would arise in Hawaii where 1/5 of our population has some degree of Hawaiian blood, and mixed marriages (and divorces) are commonplace.
Here are the mainland jurisdictional controversies with tribes from the last week of July, 2013 that seemed most relevant to Hawaii if the Akaka bill or an Executive Order creates a federally recognized Akaka tribe.
Hawaii issue: State and county governments cannot assess taxes on tribal property located on tribal land, and cannot assess taxes on personal property nor property owned by a private limited liability corporation on tribal land
Article title: "Chehalis Tribe Prevails in Great Wolf Lodge Tax Case"
Turtle Talk, July 30, 2013
"The panel held that pursuant to Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973), the exemption of trust lands from state and local taxation under § 465 extends to permanent improvements on such lands. The panel concluded that the fact that the improvements were owned by a limited liability company, rather than by the tribe itself, was irrelevant, as was the question whether the improvements constituted personal property under state law."
Hawaii issue: A town [or county] can tax a non-tribal corporation's property located on an Indian reservation even when the property is leased by the tribe.
Article title: "United States: In Ledyard, 2nd Circuit Says Local Governments May Tax Non-Indian Personal Property Located On Indian Reservations" Decision Burdens Tribes, Reverses Comprehensive District Court Ruling
Mondaq [blog of Holland and Knight law firm; Connecticut, July 25, 2013]
"The court held that neither the federal Indian Trader Statutes nor the Indian Gaming regulatory Act (IGRA) expressly bar the imposition of a local property tax imposed on the non-Indian owners of personal property located on an Indian reservation. It further held that federal law does not implicitly bar the tax — even when the property is used for tribal operations — because state and town interests in applying the tax outweigh the federal and tribal interests reflected in federal statutes. The Ledyard decision burdens tribes by significantly diminishing the strength of their claimed interests in tax preemption cases."
Hawaii issue: Regarding lands ceded by Hawaii to the U.S. in the 1898 annexation and then ceded back to Hawaii in the Statehood Act of 1959: If a Native Hawaiian tribe now gets federal recognition, will the tribal lands be under the jurisdiction of the federal or state or tribal government?
Article title: "Editorial: The 3rd Creek War — A tribal-government dispute that stretches back 200 years"
The Anniston Star [Alabama], July 30, 2013
"... events that took place 200 years ago in what was the first Creek War. ... In 1833, Alabama decided it wanted the rest of the Creek land. ... The Poarch Creeks became a federally protected tribe in 1984, which means that their land is not subject to state jurisdiction. Or is it? This is the question that will ultimately be decided by the U.S. Supreme Court because Alabama, once again, wants the tribe under its control. Why? Because the state of Alabama wants to close the Indian casinos where it contends illegal gambling is taking place. ... Not only are Creek casinos economic engines where they are located, but there is a new $246 million hotel and casino complex set to open near Wetumpka early next year."
Hawaii issue: A Native Hawaiian tribe could have its own laws regarding sales and taxation of liquor, tobacco, marijuana, gasoline -- laws in conflict with federal, state, and county laws governing neighboring lands across the street.
Article title: "Oglala Sioux will decide on reservation alcohol sales"
KSFY TV, Sioux Falls, South Dakota, July 30, 2013
"An 1832 act of Congress prohibited all alcohol in Indian Country. Today, Pine Ridge is the only South Dakota reservation that remains dry. Despite that status, alcoholism and alcohol-related crime run rampant. ... the issue is about ... maintaining sovereignty ... about ending the steady flow of money over the border to a tiny town called White Clay, Nebraska ... an unincorporated town located a couple miles from Pine Ridge ... Alcohol is White Clay's big industry - really, its only industry - and many Oglala are angry. ... More than four million cans of beer are sold in White Clay's four liquor stores each year - mostly to tribal members. Meaning the money is leaving not only the reservation, but the state. ... Poor Bear's concern ... what I'm afraid of is state jurisdiction. We are a sovereign nation. And we're going to be buying this alcohol – if it is legalized – from the state. We probably have to get an alcohol tax, which violates the treaty, because we're a tax exempt people. Is State Patrol going to be allowed to patrol our reservation highways? ... Today, more than 90-percent of crime in and around the tiny town is alcohol-related."
Hawaii issue: Federal recognition of an Indian tribe is a complex, expensive, controversial, process; and the rules are being changed. How can local communities and wannabe tribes cope?
Article title: "Feds hear about Indian tribe recognition proposal -- Meeting held Thursday at Hotel Corque in Solvang"
The Lompoc Record [California], July 26, 2013
"Federal officials heard testimony Thursday in Solvang on proposed changes to the process for Native American tribes to get recognized ... At the moment, the U.S. has 566 federally recognized tribes, of which 17 have been recognized through Part 83. California has 109 federally recognized Indian tribes with between 70 and 80 seeking federal recognition. ... the proposed rules are meant to drastically ... adding administrative barriers for potential litigants and rushing fee-to-trust acquisitions, which removes land from local jurisdiction and makes it part of an Indian reservation, under tribal authority. ... plans by the Chumash to annex property into the reservation, notably 1,400 acres they own about 2 miles east of the casino and an additional 5.8 acres in the casino area along Highway 246, have also been met with opposition..."
Hawaii issue: Can a Native Hawaiian tribe have laws prohibiting slanderous or misleading statements against a member of the tribal government, and can a tribal sheriff arrest someone who is accused of making such a statement?
Article title: "No Comment -- Like I Was Sayin"
The Flathead Beacon [Kalispell, Montana], July 24, 2013
"Great Falls man was arrested for posting critical comments of the Blackfeet Tribal Business Council on Facebook ... Bryon Scott Farmer had been jailed since July 12 for violating Tribal Ordinance 67 – an unusual law that protects the council from “allegations of threats, slanderous material and misleading information” ... elected officials who arrest people for critical Facebook comments; suspend nearly half the tribal council without replacing them; and flee traffic stops over jurisdiction disputes, should probably expect some scrutiny."
Hawaii issue: If a member of the Native Hawaiian tribe commits a serious crime on non-tribal lands and then returns to his home on tribal lands, can a state sheriff go onto the tribal lands to arrest him, or are tribal lands a pu'uhonua or refuge where criminals cannot be arrested by the state?
Article title: "Driver in Pickstown deaths turns himself in"
Argus Leader [Sioux Falls, SD], July 24, 2013
"The man charged with vehicular homicide in the Pickstown crash that killed two U.S. Fish and Wildlife Service employees turned himself in to authorities Tuesday. Ronald Ray Fischer Jr., 28, was allowed to leave a Sioux Falls hospital after he was treated for his own injuries from the July 8 crash. That fact, and potential problems in arresting him if he were to return home to the Yankton Indian Reservation, upset the victims’ family members and other observers. But Highway Patrol Lt. Alan Welsh said arrests often are not made at the hospital so that taxpayers do not become responsible for the suspect’s medical bills. ... Charles Mix County Sheriff Randy Thaler said deputies could not have arrested Fischer, a tribal member, on Yankton Indian Reservation because it is outside the sheriff office’s jurisdiction.
Hawaii issue: When a serious crime occurs on the lands of the Native Hawaiian tribe, the FBI must handle the investigation because state and county police lack jurisdiction.
Article title: "FBI investigates death of toddler near Idabel"
The Oklahoman [Oklahoma City, OK], July 24, 2013
"The FBI is investigating the death and possible sexual assault of a 2-year-old on tribal land in McCurtain County, authorities said Wednesday. The toddler, whose name was not released, died about noon Tuesday near Idabel, FBI Special Agent Rick Rains said. Because the death occurred on land in trust for a tribe, the FBI has jurisdiction in the case, Rains said."
Hawaii issue: If a federal, state, or county highway runs through lands owned by the Native Hawaiian tribe, and if a tribal member is killed or injured by a non-Hawaiian driver in a traffic accident, does the tribal court have jurisdiction in a civil lawsuit for damages?
Article title: "Group Argues That Tribal Court Has No Jurisdiction Over Non-Indians"
Fairfield Sun Times [Montana], July 23, 2013
"A nationally known, nonprofit, public-interest law firm with decades of experience addressing constitutional and legal issues as to American Indians today urged the U.S. Court of Appeals for the Ninth Circuit to uphold the holding of an Arizona federal district court that a Navajo District Court has no jurisdiction over non-Indians in a civil lawsuit filed for allegedly tortious conduct on an Arizona highway."
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