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Bringing Mainland Tribal Troubles to Hawaii: 13 news reports from mainland USA from October through December 2011 illustrating some of the troubles that will come to Hawaii if the Akaka bill passes or if a state-recognized tribe is established.


December 26, 2011

by Kenneth R. Conklin, Ph.D.

The sovereignty possessed by Indian tribes is a source of frequent nasty disputes and lawsuits between tribal governments and state or local governments. In addition, tribal membership strips people of basic civil rights they would normally expect to have as Americans. Below are short excerpts from 13 news reports illustrating such disputes, published in various states during the last three months of 2011. A webpage compiled in 2000 has links to hundreds of these controversies; some links might now be dead after 12 years, but the widespread nature of the troubles is clearly exhibited.
http://tinyurl.com/863m72o

Federal recognition of "Native Hawaiians" could come if Congress passes any version of the Akaka bill pending in Congress from 2000 to now; or in the form of the recent stealth maneuver (one sentence in a huge appropriations bill) to add "Native Hawaiians" to the list of federally recognized tribes. The Hawaii legislature has repeatedly passed resolutions supporting the Akaka bill, and only a single one of the 76 legislators has ever voted no (Senator Sam Slom). Meantime the legislature has passed Act 195 to begin creating a membership roll for a state-recognized tribe. State legislators, and the people who vote for them, need to consider the horrendous troubles they are creating as shown in these news reports.

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Hawaii issue: Promises or contracts made by the Hawaiian tribe cannot be enforced on account of tribal sovereignty.
Article title: "There can be no ‘agreement’ with the tribe"
Santa Ynez Valley News, Thursday, October 13, 2011
"Well-intended people have recently advocated that the community compromise with the Chumash tribal government and forge an “agreement” related to the annexation and/or development of Camp 4. ... Under the law, an agreement requires both sides to give and get something; it requires enforceability, and an available remedy. However, federal law allows recognized tribes to claim sovereignty and evade responsibility for what they promised to give. ... The pattern is that the tribal government asks for what it wants up front, and in return offers a nice-sounding future promise. Then, if they choose not to deliver on their promise, they invoke tribal sovereignty to evade enforcement. ..."
For full text, including specific examples, see
http://tinyurl.com/79qoj6d

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Hawaii issue: Counties cannot assess taxes on tribal property nor use foreclosure to collect taxes.
Article title: "Madison County, Oneida Indian Nation claim foreclosure case victory"
Oneida Dispatch, Madison County NY, October 21, 2011
"Both Madison County and the Oneida Indian Nation are claiming victory in a recent decision issued by the Second Circuit Court of Appeals in the foreclosure case. The case has bounced between the Second Circuit and U.S. Supreme Court and was remanded back to the Second Circuit by the Supreme Court for further review earlier this year. The lawsuit, brought by the Nation, was filed to prevent the county from assessing property purchased by the Nation and from enforcing the collection of taxes through foreclosure. ..."
http://tinyurl.com/86mx62s

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Hawaii issue: Counties cannot assess or collect taxes on gasoline purchased or used on Hawaiian tribe lands which is used or purchased on non-tribal lands.
Article title: "Seminoles Ask Supreme Court to Hear Gas Tax Dispute"
WCTV2 (Florida), October 22, 2011
"The Seminole Tribe of Florida this week asked the state Supreme Court to take up a tax dispute about fuel it buys off tribal lands. An appeals court in June sided with the Florida Department of Revenue in rejecting the tribe's argument that it should not have to pay taxes on fuel used on tribal lands after being purchased elsewhere. The tribe, a sovereign nation, said state taxation of the fuel would violate the federal Indian Commerce Clause. ..."
http://tinyurl.com/7sotf7q

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Hawaii issue: 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.
(1) Article title: "Tribe seeks to shelter land holdings -- If OK'd, Agua Caliente wouldn't have to pay tax on future businesses there"
The Desert Sun (California), December 1, 2011
"The Agua Caliente Band of Cahuilla Indians has applied to take 138 acres of land off public tax rolls and consolidate it with parcels the tribe owns at the intersection of Interstate 10 and Highway 111 north of Palm Springs. ... That would exempt it from property taxes and local land-use regulations. ... The Palm Springs-based tribe presently pays about $16,000 a year in property taxes on the four parcels. ... 'The taxpayers essentially would subsidize that development with no benefit to the taxpayer.' Schmidt said the tribe's request is among 137 similar requests made by tribes throughout California seeking to take more than 15,000 acres of land off county tax rolls. The Bureau of Indian Affairs makes the decision on whether a piece of land is moved into trust. ..."
http://tinyurl.com/copo7kw
(2) Article title: "Tribal annexation would take huge financial toll"
Santa Ynez Valley News, Thursday, December 8, 2011
[letter by Doreen Farr who represents the 3rd District on the Santa Barbara County Board of Supervisors.]
"... potential annexation into the Chumash reservation of 1,400 acres located near the intersection of Highways 246 and 154 ... would take the 1,400 acres out of the county’s land use jurisdiction and it would become totally exempt from paying any property, sales or transient occupancy tax that might be generated from future development of the property. As these taxes are the primary sources of revenue for our county’s general fund and for our schools, it is important to understand the potential loss of funding to our educational system, public safety and social services. ... the loss of property taxes could be $55 million in 10 years and $450 million in 50 years. And this doesn’t include the loss of tax revenue from any sales tax and transient occupancy tax that the project might also generate."
http://tinyurl.com/7t986gt

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Hawaii issue: 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?
Article title: "Tribal courts lack power over non-Indian abusers" [but should have such power]
The Rapid City Journal [South Dakota], November 11, 2011
"A high-level Justice Department official says tribal courts should have authority to prosecute people who are not American Indians in reservation domestic violence cases. Associate attorney general Tom Perrelli says the lack of that authority often leads to law officers on reservations mistakenly believing they can't arrest non-Indians in such cases. A 1978 Supreme Court decision stripped courts of authority over non-Indians. Perrelli also says it has meant many serious acts of domestic and date violence have gone unprosecuted and unpunished. ..."
http://tinyurl.com/c9opgzw

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Hawaii issue: 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.
Article title: "Deep divisions seen in Unkechaug tribe" [Suffolk County, NY] Newsday, December 11, 2011
"... tribal members, in a state Supreme Court filing in Riverhead this summer, accuse three members of the newly elected tribal council and a council adviser of promoting the reservation as a 'haven for non-Unkechaug criminal actors' and activities, including misappropriation of tribal funds, illegal cigarette sales and manufacturing, and illegal drug sales. ... Peebles declined to discuss the tribe's ambitions for gaming or say when the application would be submitted. ... improperly transferring property or spending tribal funds ... alleged efforts to manufacture cigarettes in the community center. ..."
http://tinyurl.com/7mgla8k

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Hawaii issue: 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?
Article title: "A Land Claim With Strings Attached -- Indian Group Vies for Control of California Wilderness by Agreeing to Restrictions"
Wall Street Journal, November 15, 2011 regarding California land
"At issue is more than 2,000 acres of wilderness in the remote Humbug Valley that is owned by utility Pacific Gas & Electric Co. Under the settlement of its 2001 bankruptcy, the utility, part of PG&E Corp., must give its Humbug property and much of the rest of its undeveloped land to groups that will preserve it as wildlands. The Maidu say they should get the land because they are Humbug Valley's rightful owners and can manage the land for public recreation and tribal uses. ..."
http://tinyurl.com/6u3hncd

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Hawaii issue: 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.
Article title: "Lumbees to choose new leader in Tuesday's tribal election" The Fayetteville Observer, Fayetteville, NC, Mon Nov 14, 2011
"Lumbee Indians will vote to fill seven seats on the Tribal Council and pick a new chairman in an election Tuesday. Four people are seeking to be the next chairman of the tribe, which has 55,000 enrolled members. The tribe is based in Pembroke in Robeson County. Gaining federal recognition for the tribe has been a priority in recent years. ... In early 2010, it was revealed that former tribe Chairman Jimmy Goins and some council members secretly signed a contract with a Nevada gaming consultant to lobby Congress to grant tribal recognition. The tribe had publicly said it had no interest in a casino if it achieved recognition."
http://tinyurl.com/7avd5as

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Hawaii issue: State recognition of a Hawaiian tribe could lead to federal recognition with unexpected consequences including casinos.
Article title: "Bill to recognize Indian tribes in New Jersey stalls amid fears of tribal casinos"
Press of Atlantic City (New Jersey), Tuesday December 13, 2011
"The Nanticoke Lenni-Lenape people survived centuries of European persecution in South Jersey by hiding. They outwardly denied their heritage, but quietly intermarried and passed down their traditions in secret. ... A lot has changed since their ancestors were forced from their wigwams, but in some ways they are still oppressed. For the past decade, they said the state has not fully recognized the three tribes that remain active here, denying them rights to federal benefits and the ability to market their crafts as 'Indian made.' ... A bill pending in the Legislature would resolve this issue, but ... 'The question I have is, could state recognition lead to federal recognition, which in turn could lead to Indian gaming somewhere in New Jersey,' said Sen. Jim Whelan, D-Atlantic, chair of the committee where the bill has sat since being passed by the Assembly in February.
http://tinyurl.com/7dh87um

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Hawaii issue: 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.
Article title: "Developer cries foul on Native American casino carve-out"
The Boston Herald, November 17, 2011
"A developer eyeing a bid for a casino at a waterfront power station in New Bedford is urging Gov. Deval Patrick to scrap an 'illegal' provision in an expanded gambling bill on his desk that would temporarily reserve a casino license for a Native American tribe in the southeast region of the state. ... KG Urban Enterprises says the gambling bill violates the U.S. Constitution’s equal protection clause. That argument did not resonate during the crafting of the casino bill. ..."
http://tinyurl.com/85nlvgw

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Hawaii issue: 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. Article title: "Ousted tribal members want Congress to help
North County Times (San Diego and Riverside Counties, California)
"Ousted members of the Pala Band of Mission Indians in North County say they want the federal government to give them greater protections from being removed from tribal membership rolls. Hundreds of people have been expelled from local tribes in recent years. Many more have been removed from tribes throughout California and the country. Some of them believe that the removals are motivated by greed and politics inside some of the country's most successful gambling tribes. ... disenrollment has become a widespread civil rights problem in Indian country, and that it's time for the federal government to step in. 'The shameful mass-disenrollment debacle at Pala calls for attention by the U.S. Congress to amend the Indian Civil Rights Act to give disenrolled tribal citizens a chance to have federal courts review the tribal record and determine if the process was just and fair,' Chappabitty said. ..."
http://tinyurl.com/7wl4edd

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Hawaii issue: Members of the Hawaiian tribe have no right to freedom of speech.
Article title: "Resigning from reservation job"
The Bismarck Tribune [North Dakota], Saturday, October 15, 2011
"A recent vendetta against me for writing an article to newspapers in September has forced me to resign my position as the Turtle Mountain Reservation oil and gas specialist. ... [T]here are no laws protecting a person's right to freedom of speech within reservation boundaries. Our sovereignty status has put us in a position of governing with our own laws and our leaders will use this practice to protect themselves from any harm damaging their reputation. ..."
http://tinyurl.com/8xxkbzf

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Hawaii issue: 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.
Article title: Panel weighs sides in Little Shell Tribe leadership dispute
Great Falls Tribune [Montana], December 11, 2011
"A panel of tribal judges listened to arguments Saturday from attorneys representing two different tribal councils, each claiming to be the duly elected council of the Little Shell Chippewa Tribe. ... The dispute stems from a May 2009 election, which dissenters claim was wrongfully postponed and candidates were removed from the ballot without cause. ... members of the tribe who felt the election was unfair, held their own election in March 2010 ... That election left the tribe with two chairmen and two councils each claiming to be the rightful leaders. ... "
http://tinyurl.com/7z8tb2t

** NOTE ADDED ON AUGUST 6, 2013: A NEW WEBPAGE FOLLOWS UP THE WORK THAT WAS STARTED HERE.

Some jurisdictional conflicts if a Native Hawaiian tribe gets federal recognition, as shown by actual mainland examples from the last week of July 2013

http://www.angelfire.com/big09/AkakaTribeJurisdiction2013.html


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Ken_Conklin@yahoo.com

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