(c) Copyright 2003 - 2009
Kenneth R. Conklin, Ph.D.
All rights reserved
In Hawai'i the governor, legislature, and congressional delegation strongly support the Native Hawaiian Recognition bill. There are two main reasons:
(1) pork barrel politics to defend racially exclusionary programs that bring tens of millions of federal dollars to Hawai'i every year;
and (2) a general public attitude that treats people of Hawaiian ancestry as the favorite ethnic group, analogous to the way a family spoils a favorite child or the way sports fans pet, coddle, and cheer for a team mascot. Ethnic Hawaiians are portrayed as a poor, downtrodden people whose beautiful culture will surely die (along with the people themselves) unless the Akaka bill passes.
But it turns out that federal recognition of an Indian tribe has devastating consequences for local governments and local businesses in areas where the tribe owns land, and for the social fabric of nearby communities. Hawai'i business owners, county councils, and neighborhood boards should pay attention to what has happened in other states where tribes got federal recognition, so we do not repeat their mistakes. It turns out that the tens of millions of federal dollars flowing into Hawai'i for race-based Hawaiians-only programs does not begin to compensate local government, businesses, or the communities for the bankruptcies, reduction of tax base, jurisdictional chaos, and social antagonisms that would be the inevitable long-term result if the Native Hawaiian Recognition bill were to pass.
This webpage focuses on some of the disastrous consequences of tribal recognition for local (non-Hawaiian) businesses and the local (non-Hawaiian) community. A different webpage focuses on the loss of democratic and constitutional rights that ethnic Hawaiians would suffer if the Akaka bill passes -- the impact would be felt by those Hawaiians who join the tribe, and to a lesser extent by those who do not join it. See:
Hawaii Reporter, January 8, 2009
Akaka Bill Impact Revealed
New Study Shows Drastic Impact on State's Economy
By Tom McAuliffe
HONOLULU, HAWAII --- The Grassroot Institute of Hawaii (GRIH) has released a new study from the Beacon Hill Institute at Suffolk University.
The Economic Impact of the Akaka Bill: Unintended Consequences for Hawaii estimates that the Akaka bill could cost the state up to $690 million per year in lost revenue.
The Native Hawaiian Government Reorganization Act of 2007 (S.310 and H.R.505) in the 110th Congress, also known as the Akaka Bill after sponsor Senator Daniel Akaka, proposes to create a sovereign Native Hawaiian Governing Entity (NHGE) within the state of Hawaii. This is the first study on the economic impacts of the proposed bill, which is expected to be re-introduced in the new session of Congress.
The Economic Impact of the Akaka Bill: Unintended Consequences for Hawaii is a straightforward look at how passage of the bill would hurt Hawaii business while pitting neighbor against neighbor," said Grassroot Institute President Jamie Story. "Regardless of one’s feelings about the Akaka Bill and its benefits or shortcomings, it is vital to examine the economic impact of the bill on Hawaii’s people. This study demonstrates the irreversible economic damage the Akaka Bill would do to Hawaii, and we hope Washington DC officials will take this into consideration.”
Among the study's findings:
• The bill could exempt Native Hawaiians living or shopping on land ceded from the state from paying state income and sales taxes.
• There may be a transfer of state-owned lands to persons designated as native Hawaiians to the detriment of non-Native Hawaiian taxpayers and, correspondingly, to the state economy. The resulting tax increases would have large, negative impacts on the state's economy leading to a possible reduction of 20,793 private sector jobs, a loss of $417.2 million in investment and a loss of $1,461 in real per-capita disposable personal income annually.
"We've looked at the bill, as introduced in the last session of Congress, from many different angles and have provided an objective in-depth analysis of what the economic impacts might be on Hawaii and its citizens," said Dr. David Tuerck, Executive Director of the Beacon Hill Institute and co-author of the study. "In The Economic Impact of the Akaka Bill: Unintended Consequences for Hawaii we've identified the most likely effects of the Akaka Bill on the Hawaiian economy. By almost any plausible interpretation of the bill, those effects are uniformly negative," adds Paul Bachman, Director of Research at Beacon Hill.
** The full report in pdf format can be downloaded here:
Barb Lindsay is the National Director & Spokesperson for One Nation & United Property Owners based in Redmond, Washington D.C. See more about her organization at http://www.onenationok.com and http://www.unitedpropertyowners.org or call her at (206)-660-3085 or e-mail to email@example.com
Hawaii Reporter (on-line), October 13, 2004
Say No To Dividing Hawaii With Akaka Bill
By Barb Lindsay
Do people in Hawaii understand what it will mean if a new tribal government is created? That Congress will be giving ONE ethnic group “special privilege by birthright” that will be denied to ALL others? That everyone else’s sales taxes and property taxes will have to be increased so that ethnic Hawaiians could become tax-exempt? That ONLY ethnic Hawaiians would have free cradle-to-grave health care, paid for by the taxpayers - - but denied to ALL others? That the State will lose lands from its sovereign land base, never to be returned for use by ALL citizens? That Congress would essentially be creating a new “Royalty” in Hawaii? That trying to supposedly “right an old wrong” will simply be creating a new class of victims - - innocent Hawaiian citizens of all other races who have done NO wrong, but who would foot the costs for this federal government boondoggle?
It’s time for you to editorially discuss these important issues, we believe, before it’s too late. Small business owners are the ones who will bear the biggest burden because ONLY ethnic Hawaiian businesses will be able to avoid state and local tax collection/remission, thereby being able to offer much lower pricing on their products and services. Time and again we see too many local businesses suffer and close their doors when tribes open nearby. Monopolies are the inevitable result because law-abiding, non-tribal retailers simply cannot compete! Is this the future that would keep Hawaii “in the black” and not facing from the huge state budget deficits so many other states have? ALL the states with the largest number of tax-exempt tribal casinos and tax-evading tribal businesses now have large and growing deficits: New York, California, Wisconsin, Minnesota, Montana, Washington, Oregon, Arizona, Connecticut, Colorado, Florida, Michigan, and Oklahoma.
Ours are nonprofit, nonpartisan organizations representing over 300,000 concerned property owners, hundreds of community groups, trade associations, local governments, small businesses, and elected officials in all fifty states across America. Our nationwide membership includes a number of enrolled tribal members who join us in fighting the devastation caused to states, local communities, and small businesses when so-called "indigenous" groups get federal recognition as Indian tribes. We’ve joined together in a collective effort to seek reform of tragically flawed federal Indian policy for the benefit of Indians and non-Indians alike. Gambling expansion is one of the biggest areas of urgent concern to our members across America. We would truly hate to see Hawaii invaded by the enormously negative impacts of gambling casinos! Tribes in a number of other states repeatedly promised “no casinos” then opened them anyway - - AFTER gaining sovereignty. We urge local citizens to speak out now in opposition to this terribly misguided Akaka bill, currently pending in the U.S. Senate. Don’t let politicians steal away the “Aloha” spirit from the Islands by dividing your citizenry up by ethnicity and creating needless divisiveness for generations to come! Equality under the law must prevail, if we are to continue as the nation of E pluribus Unum, "Out of Many, One."
Note from website editor Ken Conklin: A nearly identical letter to editor, tailored by Barb Lindsay for an audience of university students, was published in the University of Hawaii student newspaper “Ka Leo” on October 26, 2004, with URL:
The following short article is by Jack Schneider, president of the Grassroot Institute of Hawaii, chairman of Small Business Hawaii and owner of JS Services. He can be reached via email at firstname.lastname@example.org
Hawaii Reporter (on-line newspaper), 3/02/2005
Disappointed in the Governor’s stand on the Akaka Bill
By Jack Schneider
I have been a supporter and a fan of Gov. Linda Lingle’s for many years. However, I am most disturbed and disappointed in her stand and commitment towards the passage of the Akaka Bill.
See "Governor Testifies on The Native Hawaiian Government Reorganization Act"
In the Governor’s March 1, 2005 testimony before the US Senate Committee on Indian Affairs, she concluded "That this bill will be a unifying force for our state……it is supported overwhelmingly by people of all ethnic backgrounds, and is supported by a majority of the states business community"
Where did the governor get the polling data to suggest that this bill is supported overwhelmingly by people of all ethnic backgrounds?
Where did the governor get the polling data to suggest that the majority in our business community strongly support this bill?
My multi ethnic contacts in the community are strongly opposed to the bill. They feel that the end result will be an extremely divided society. It will not be a unified society.
How could the governor think that business people would support a bill that would allow the creation of businesses which would operate under a completely different set of laws and rules than they would have to operate under?
Can you imagine competing with a company that does not have to follow the National or State labor laws; Does not have to comply with OSHA or HIOSH; Does not have to pay FICA and Medicare; Does not have to pay Federal and State Unemployment Tax; Does not have to provide Work Comp, TDI or Medical Insurance; Does not have to pay Federal or State Income Tax; Does not have to pay GET?
How long do you think you could stay in business with a competitor like that?
How long do you think there would be a Hawaii as we now know it?
OUTSTANDING PUBLISHED ARTICLE DESCRIBING ACTUAL IMPACTS OF TRIBAL “INDIAN COUNTRY” ON NEARBY COMMUNITIES AND BUSINESSES
Hawaii Reporter (on-line), March 13, 2005
Akaka Bill May Be Intentionally Vague on What a Native Hawaiian Government Means for Hawaii
By Elaine Willman
The Akaka bill, which grants Native Hawaiians certain entitlements and sets up a seperate entity in Hawaii based on race, is being considered in the U.S. Congress.
But what the bill lacks in terms of specifics raises questions as to whether it may be intentionally vague when documenting what the Native Hawaiian "government entity" may be like.
For so long as no one can predict the specifics of this nebulous proposed new government entity, people of Hawaii may believe there is nothing to fear. There is much to fear.
Based on what exists in the Native American communities, the actual governing authorities a new "Native Hawaiian government entity" might include in its original governing document (perhaps a constitution) are some or all of the following powers:
* A "sovereign" immunity from suit or litigation;
* An ability to tax, i.e. property, sales, energy services, etc;
* The power of eminent domain;
* Exemption from federal, state and local property, sales, B&O, and other taxes;
* Exemption from state, county and local licensing or permit fees or requirements;
* Exemption from state and local land use and zoning regulations;
* Tribal zoning and land use regulations likely to be incompatible with state and county zoning;
* A "tribal employment rights ordinance (TERO)" which will REQUIRE all businesses to implement hiring preferences for Native Hawaiians, and in most cases includes a front-end FEE for new construction, expansion of facilities within a recognized boundary of the new governing entity;
* Tribal police, tribal courts and jails - all having jurisdiction of Native Hawaiians and any other enrolled tribal members of ANY other Indian tribe. Law enforcement jurisdictional conflicts are a worst nightmare, and Tribal police have two things generally in common: inadequate training and a very aggressive attitude with their own and other people;
* As a tribal government they could pursue through EPA, "Treatment Similar to States (TSTS) for control and authority over air quality, water quality, pesticides, and other major congressional environmental legislation. This process is immediately problematic for existing and new businesses, farmers and equitable water distribution and services.
The U. S. Supreme Court in 2001, in Atkinson v. Shirley, ruled "a tribe may not tax a non-member." This was a broad and clear ruling that continues to be ignored on many reservations, but the highest court has spoken quite succinctly on this point. Tribal governments have the authority to enact and enforce taxes upon their members and their tribally controlled properties, but have no authority to enact taxation upon non-members, absent "mutual consent" of non-members.
On the Tulalip Indian Reservation in Marysville, there is a former/historical boundary and an actual, smaller Tulalip Indian reservation boundary. The Tulalip tribe has been collecting a 2 percent excise/escrow fee from the sale of any property any time, within their historical boundary or actual boundary - and this includes privately owned fee parcels, deeded land that is NOT Indian owned or held, and not otherwise encumbered with any Indian restrictions. Tulalips arbitrarily imposed this fee and were collecting it from willing local escrow companies, with cooperation from county assessor offices - no one questioned them. They've collected, unlawfully, a ton of money until just recently when this maneuver was publicly surfaced and the tribe has backed off.
Several tribes -- Tulalip, Lummi, Swinomish and Yakama -- in Washington State alone - are imposing and collecting "tribal utility taxes" from non-tribal businesses, residents and properties -- based upon the existence of utility infrastructure passing through their reservations. Even if the infrastructure lies within public highway right-of-ways and is not on tribal property -- these taxes are imposed and collected, with no one at state agency level, discouraging or stopping this unlawful act (Atkinson v. Shirley, 2001).
The Yakama Indian Nation imposes a 3 percent utility tax on the electricity and natural gas services within it's boundaries. For our agricultural businesses (canning, cold storage) the cost is an additional $900 - $1,200 per month on their utility bills. My local group, Citizens Standup! Committee has sued the Washington Utilities and Transportation Commission (WUTC) for enabling this unlawful taxation - our case is being reviewed at this moment by the Washington State Supreme Court. It is not in federal court because the WUTC actually converted a tribal ordinance from a "franchise fee" to a "utility tax" when it had no authority to amend tribal legislation or to impose such a tax upon Washington ratepayers.
With 29 tribes in Washington State, you can imagine the political influence upon state agencies and elected officials who willingly roll over for all tribal whims, even the unlawful.
Tribal Employment Rights Ordinance
The Tribal Employment Rights Ordinance is typical among most federally recognized tribes. It's intent is to promote hiring preferences for Native Americans, but this is also a very strategic revenue tool for Indian tribes. For example, when a very small and budget constrained school district in Central Idaho wanted to build a new middle school, the Nez Perce tribe immediately informed the school district that it must: 1) pay $600,000 to the tribe for permission to construct the school within their "historic" (not actual) boundary; and 2) enforce Nez Perce hiring preferences.
This upfront cost for construction nearly defeated the school district's urgent need. This was defeated only when three counties, six towns, hospital districts, highway districts and school districts formed a more strengthened local coalition to stand up against the small (1,700) Nez Perce tribe.
The tribe receives 38+ million per year from the federal government and provides no services whatsoever to the surrounding community, and only limited services to its tribal members. The combined annual budgets of 23 small government entities that provide all the services (law enforcement, highways, schools, government) -- the combined annual budget of 23 governments in Central Idaho is less than what the Nez Perce tribe receives annually, and this does not include their annual gaming revenue -- which is also huge.
Another example, here in my town of Toppenish, WA, our county purchased land to build a new county corrections facility (our town has been so economically crippled by gambling and Numbers 1 through 9 above) that we were happy to have a new corrections facility. The tribe immediately informed the county that a Tribal Employment Rights Ordinance fee of $650,000 would be required for construction, even when it knew that within its own tribal ordinance, government facilities were exempt from Tribal Employment Rights Ordinance. Yakima County officials had not informed themselves and were ready to cut the check. Our citizens group informed the county that they were exempt. The next thing to happen was the tribal government claimed water control over the site and threatened litigation if the county built the corrections facility -- so we lost it.
Within every state that contains federally recognized tribal governments and reservation spaces, issues like the above occur.
If a second law enforcement system is overlaid over your current law enforcement, i.e. a "Native Hawaiian Police Division" -- then enforcement is divided between criminal and civil matters, and determinations are made as to which police have authority of which persons. On the Yakama Reservation, state and county and municipal police have authority over major felonies for all persons, including tribal members. These agencies have no authority over tribal members respecting misdemeanors. Here's how that works: a tribal member may not be cited for not having a valid driver's license, for not having a seat-belt on, or for not having auto insurance. These are all misdemeanors. There is little incentive for tribal members here to bother with such amenities as a driver's license, auto insurance or seat belts. And when this is combined with tendencies toward frequent drunk driving - the financial toll to victims (both tribal and other, and especially tribal children) is incalculable.
Most tribal governments do not include a fire department or emergency response services. On our reservation, when fires occur on tribal properties, county and municipal responders incur the obligation and costs. Tribes contribute zero dollars for annual fire services. Same thing goes for emergency response services. Local emergency response services are obligated to respond to tribal requests. Tribes contribute zero to service providers.
An Initial Reservation
Since a Native Hawaiian "reservation" would be unique, the process may differ somewhat, but if the federal recognition proceeds as with other newly recognized tribes, then the Department of Interior through the Bureau if Indian Affairs (or your new Bureau of Hawaiian Affairs) will create something akin to a Tribal Land Assessment Area for purpose of developing an initial reservation. On Oahu, for example this would likely include currently ceded lands and/or other lands controlled by the Office of Hawaiian Affairs, etc. -- and would then include a wide boundary that brings all prime properties into a contiguous space to be designated a "federally recognized Hawaiian reservation." Privately held businesses and properties would not be subject to tribal governance, but properties could see title restrictions or "clouds" that would force a seller to sell first to the tribal government, or such other restrictions that could be dreamed up and imposed.
The ability of a private business to compete on the same terms and in the same marketplace as a tribal business is a complete zero. Private businesses must follow all federal, state and local regulations and pay all respective annual taxes, licenses, permits and fees. Tribal businesses skate free here. The difference in dollars and cents for startup or annual costs is astounding.
For example, the local irrigation waters are controlled by the Wapato Irrigation District (a tribally held system). Private farmers pay an exorbitant annual fee for water. Indian farmers pay nothing. In drought years or water shortages (such as is our crisis right now), private farmers get immediately cut off from their water -- Indian farmed lands do not. Indians get their water free, and never have it cut off. Private farmers financially support the irrigation system and stand last in line behind any tribally farmed land. Despite this, we remain a primarily agricultural area.
Tax-exempt tribal businesses run the gambit of casinos, hotels, marinas, gas stations, restaurants, grocery stores, convenience stores, clothing and manufacturing, -- everything. All of these industries operate on a severely different playing field than privately owned businesses. There is no fair market system in place in or near a federally recognized Indian reservation. This problem is frequently compounded with the facilitation that tribes receive from EPA, the Army Corps of Engineers, Department of Interior, etc.
Finally, I have a serious concern that Native Hawaiians may not be fully considering the consequences of the yoke of dual citizenship -- as an enrolled member of a second government, and as a U.S. citizen. Generally, tribal governments are not democratic in form and contain little, if any, checks and balances between a governing authority, its legislative and judicial bodies. Familial and monarchial forms of government are far more limiting in terms of free speech, and include a tendency towards retaliation or reduction of services for those who voice concerns or opposition. Dual citizenship can also include dual taxation. The current freedoms enjoyed by Native Hawaiians as Americans can be severely constrained when saddled with the obligations and political influence of a separate, race-based government.
Elaine D. Willman is the Chair of the Citizens Equal Rights Alliance (CERA) in Toppenish, WA. She can be reached via email at
email@example.com See more about Citizens Equal Rights Alliance, an organization seeking Constitutional and civil rights for individuals on or near Indian reservations, at:
Hawaii Reporter, August 9, 2005
Akaka Bill Will Have Negative Impact on Hawaii’s Construction Industry, Economy
By James I. Kuroiwa, Jr.
Director, Hawaii Laborers-Employers Cooperation Education Trust (HI-LECET)
The "Akaka Bill," now pending before the U.S. Senate, will have a negative impact on Hawaii’s construction industry and the state’s economy if approved without the amendments presented by six U.S. Senators who last month put a hold on the bill after voicing concerns over its impact on Hawaii.
The construction industry is a by-product industry. Hawaii’s basic industries, such as the visitor, military (Federal), agriculture, technology, research, communications, and bio-technology must grow before the construction industry can expand.
Hawaii's three part strategic plan was first, to get a commitment by the Department of Defense to assign one of the Stryker Brigades to Hawaii and with it some $700 million over two years for construction on Oahu and the island of Hawaii.
Part two of the strategy was to obtain a commitment by the Department of Defense to home-port a carrier group at Pearl Harbor, bringing with it some $3 billion in construction over six years to the islands of Oahu, Kauai and Hawaii.
The third major project would be the approval by the Department of Commerce to designate South Hilo-Puna a Foreign Trade Zone, bringing in private investors to Hawaii and about $2 billion in construction a year for the next 20 years. The sustainability of the military and the foreign trade would generate approximately $2 to $3 billion a year into Hawaii’s economy through payrolls and other related expenditures.
But the land that could be transferred if the Akaka Bill is passed to the new Hawaiian sovereign government could affect these and other projects vital to the construction industry and the economy.
Here is why. The Akaka Bill states, "The 3 governments (U.S., State and new Native Hawaiian governing entity) would then negotiate an agreement for: Transfer of lands, natural resources and other assets, delegation of governmental power and authority, exercise of civil and criminal jurisdiction, and ‘residual responsibilities’ of the U.S. & State of Hawaii."
The "transfer of lands" includes ceded lands (several thousand acres of public lands now owned by the state and federal government), the Alii trusts lands (such as the Kamehameha Schools/Bishop Estate), and other lands to be placed in trust that are approved by the U.S. Department of Interior.
The inventory of the ceded lands is not completed, but is estimated to total about 2 million acres, about 46 percent of all the State of Hawaii land area. This inventory includes the Hawaiian Home Lands with about 203,000 acres, Federal Lands with about 409,939 acres, and the State Lands of approximately 1,274,886 acres.
Most recently, the state learned the Pearl Harbor Shipyard was being considered for closure by BRAC, but that issue for now is allayed. However, Pearl Harbor and its shipyard are located on ceded lands. Three of the four Republican senators representing Portsmouth Naval Shipyard, who sit on the Republican Policy Committee chaired by U.S. Sen. Kyle of Arizona, know of the possible future impact on this shipyard and the entire Pearl Harbor from the Akaka Bill. They presented the potential risk to the security of the United States if Portsmouth was closed.
In a July 13, 2005, document, the U.S. Department of Justice wrote to U.S. Sen. John McCain, who chairs the Indian Affairs Committee: "S. 147 should be amended to make clear that the consultation process contemplated in section 5(b) and 6(d) may not be applied so as to interfere in any way with the operations of U.S. military facilities on Hawaii or otherwise affect military readiness."
The Justice Department is aware of the impact of the Akaka Bill on all U.S. military operations. The potential impact of a Native Hawaiian Entity forcing negotiations with the U.S. military, effecting operations by taking control of the military properties and/or imposing a "tax" and "lease" for the use of such property would add cost and loss of control, causing the military to down size or even pull out of Hawaii.
The Justice Department also wrote, "The potential for such interference is well illustrated by litigation currently pending in the U.S. Court of Appeals for the Ninth Circuit (Lilioukalani Coalition v. Rumsfeld) challenging a proposed base expansion." This challenge against base expansion for training required for the Strykers will cost Hawaii the lost of the Stryker Brigade and some $700 million in construction projects already negotiated.
The U.S. House of Representatives also have their concerns. In a letter to House Speaker Dennis Hastert and Majority Leader Tom DeLay from Representatives Steve King, Mike Pence, Gil Gutknecht, Dana Rohrabacher, Virgil Goode, Jeff Flake, Ernest Istook, Barbara Cubin, Lynn Westmorland, Jeb Hensarling, Dave Weldon, and others who signed on between July 20 and July 22, 2005, they presented questions about the bill.
Second, these bills raise practical questions that simply have not been addressed. For example, would a race-based government in Hawaii have the power to disrupt our nation's military operations there? Will gambling expand in Hawaii, given this legislation's vague language? Would the new race-based government have new rights to file lawsuits against the federal government under "breach of trust" theories? Will Native American appropriations be depleted when the 400,000 Native Hawaiians across the nation seek to participate in the same programs? How could Hawaii function if people living in the same neighborhood are subject to different laws, regulations, and taxes?
Consider for example, two small businesses in Hawaii competing against one another. One is owned by a Native Hawaiian, and the other is owned by one who is not. The former will be exempt from state taxes, state business regulations, and zoning and environment laws, and the latter will not. These problems and many other questions deserve answers.
The review of ceded lands also includes Hawaii’s harbors, airports, highways, schools, state buildings, and others that are public lands. The Akaka Bill could place all the ceded lands on the table for negotiations and transfer them to a Native Hawaiian Entity.
Finally, the Akaka Bill will have a huge impact to the potential of developing the South Hilo-Puna Foreign Trade Zone, establishing Hawaii as the gateway between East and West; the maintaining of military forces, and the visitor industry.
Ultimately, the changes brought by the Akaka Bill will negatively impact the construction industry and Hawaii’s present growing economy.
CdA tribe member wins appeal
State can't prosecute drug case within reservation boundaries
November 3, 2005
BOISE -- State authorities cannot prosecute American Indian tribal members for possessing drugs in Indian country -- even if the member is transporting the drugs on a state highway, the Idaho Court of Appeals has ruled.
The three-judge panel agreed unanimously last week to overturn the drug conviction of Coeur d'Alene tribal member Elena Ambro. Bob Cooper, a spokesman for state Attorney General Lawrence Wasden, said Wednesday that the state would not appeal the ruling.
Ambro was charged with possession of methamphetamine after tribal police stopped her on a state highway for an alleged traffic violation.
Kootenai County sheriff's deputies arrived at the traffic stop to arrest Ambro on an unrelated bench warrant, and discovered the drugs after searching her vehicle, according to court documents.
Ambro argued in 1st District Court that because she was a tribal member on reservation land, the county had no jurisdiction over possession of drugs. But 1st District Judge Charles Hosack disagreed, and Ambro eventually entered a conditional guilty plea, reserving her right to appeal.
A federal law passed by Congress in 1953 allows states to extend their legal reach onto reservation land, but only in some matters, such as the operation of motor vehicles on state and county roads, the appellate court noted. In other matters -- such as drug crimes -- tribal and federal agencies have jurisdiction.
The state claimed it was authorized to prosecute any crime committed by an Indian within reservation boundaries, as long as the crime was committed while the Indian was riding in a vehicle on a state-maintained highway, according to court documents. That's not the case, the appellate court found.
"The state asserts that once the officer arrested Ambro, she ceased being an Indian in Indian country and, therefore, could be prosecuted for possession regardless of whether the state had subject matter jurisdiction to enforce controlled substance violations committed by Indians on reservations. We are unpersuaded," Chief Judge Darrell Perry wrote.
The enforcement of drug laws is not a basic part of traffic enforcement, Perry wrote.
"We reject the state's position that, once Ambro was lawfully taken into custody, she ceased being an Indian in Indian country," Perry wrote. "Indian country includes all land within the limits of any Indian reservation, including rights-of-way running through the reservation."
** Note from website editor Ken Conklin: This article deals with jurisdictional conflicts, focusing on casinos. However, the conflicts are actually the same for all businesses, not only casinos.
Hawaii Reporter, August 29, 2005
The Realities of Tribal Sovereignty, Indian Gaming and Their Money Making Machine: What They Don’t Tell You and What the Public Needs to Know
By Bradley Beecher, 8/29/2005
Hiding beneath the cloak of sovereign immunity federally recognized Indian tribes can ignore virtually any state law, many federal laws and violate the Constitutional rights of non-Indians with seeming impunity.
While I am not a legal expert on tribal sovereignty, based upon my own first-hand experience as a Commander of a State Police unit monitoring tribal gaming on a Connecticut reservation, I do not believe this is the outcome or state of affairs that either Congress or the courts expected or anticipated.
I have analyzed numerous state-tribe gaming compacts that allow tribes in most instances to create and apply their own set of laws. Based upon my experience and research here are some examples of situations permitted to exist at Indian gaming facilities:
* Non-Indian employees of recognized Indian tribes are not protected by either state or federal labor laws. A recent OSHA ruling that threatens this state of affairs is being heavily attacked by tribal hired lobbyists in Congress. Non-Indian employees are subject to arbitrary laws created by the tribe and their tribal courts. Employees and patrons of casinos on federal reservations effectively relinquish their constitutional rights.
* If Indian children, elders or women are abused on a reservation and tribal police and tribal courts do not or refuse to respond, the abuse simply continues. State child protection and sexual assault laws do not apply. Given that the tribal police and tribal courts usually are under the influence of the tribal authority, this happens more than the public realizes. Recently a tribe in Minnesota was found to be protecting child predators.
* Casinos can legally ignore their debts. As a sovereign nation a tribe can purchase goods or contract for services and legally refuse to pay for the purchase or default on the contractor. The aggrieved cannot file a civil suit in state court to recover the money. If they can find an attorney to represent them in a tribal court, they can attempt to recover the debt, but the court is in the employ of the tribal government and serves at its whim. Recently, a gaming tribe in California refused to pay a contractor. This contractor tried to pull off of the project until the debt was settled. The tribe refused the company access to the reservation to recover its heavy equipment. The contractor was out what he was due and also deprived of his means of making a living. Why? The tribe has sovereignty.
* The Indian Casino Industry is not supposed to violate federal regulations and laws but they do every day. It is a commonly known fact that government agencies funded by taxpayer dollars don’t enforce these regulations. The NIGC, BIA and DOI are predominantly understaffed, incompetent, self-serving and disorganized. By 1996, the NIGC reported that 84 percent of the Indian Gaming facilities audited were out of compliance with federal regulations. Many casinos had not been audited yet. Mohegan Sun had its first audit in 2004 after 8 years of operation. The report still has not been completed. The Tribal Gaming Commissions on reservations are supposed to be regulating but they are, like the tribal police and the tribal courts hired and fired by the people in power. It would seem obvious that the casino makes more money if their actions and policies are not restricted.
* American citizens cannot sue tribes or their representatives in most cases. We have to obey all laws. If I go into another state, I must obey that state’s laws. Sovereignty was intended for Indian self-government on Indian land, not to allow them to be above the law off of their reservations. They can use the state courts to bring suit against non-Indian individuals or businesses, but the same individuals or business concerns cannot use the same court to bring such suits against a federally recognized tribe. Yet, these tribes are constantly seeking to expand their jurisdiction over non-Indians. In the past year, tribal interests attempted to add an amendment onto a Homeland Security bill whereby any non-Indian coming on to Indian lands would be subject to tribal law. This would have included casino patrons. Luckily the amendment was deleted.
* Tribes and their investors have enough money and rights to abuse state and federal courts. The average citizen could not afford to stand up to the monetary juggernaut a gaming tribe can bring to bear. If a recognized tribe wants the right to build a casino but lacks the proper land to put one on, they simply bring an "in terrorem" (intended to terrify) land claim suit to take thousands of acres from state or private landowners, on the oftentimes unfounded claim that the tribe once owned the land and was illegally taken from them hundreds of years ago. If they are given the rights to gaming, they drop the lawsuit. Some call that "blackmail." In the meantime, millions of dollars in taxpayer monies are spent and valuable hours of court time are wasted. So far, the tribes have even been able to file frivolous, slanderous and baseless suits against individuals who threaten their interests without consequence even though many states prohibit such actions. The defendant still has to bear the associated legal costs to get the suit dismissed, but the defendant cannot bring a counter-civil suit against the tribe to recover these expenses.
This situation is not going to change on its own. The gaming tribes have spread their influence to the corridors of both the state and federal government. As a result, government officials at all levels have done little or nothing to cause effective change. America is supposed to be the land of equal opportunity. Our governmental officials are supposed to represent the will of the American people, not those of purported "sovereign Nations."
Citizens must learn how tribal sovereignty destroys the principles our country was founded upon. When people grasp the fact that politicians are actually making and enforcing laws that favor one ethnic group over others, they often say "How can that happen here?" It is happening.
"Reservation shopping" could land a major casino operation in anyone’s backyard. This means local businesses being shut down, influx’s of foreign worker at low wages, inflation of real estate values and heavy strains being placed on local social agencies and school systems, not to mention the increase in crime and political corruption. Citizens, who are well educated, informed and organized, sending a clear, unified message to officials at both the state and federal level is the best weapon against this national trend.
Bradley Beecher is the owner of Thetis Consulting, a firm specializing in advising corporations and community groups in the areas of security and gaming. He was the commander of the Casino Unit for the Connecticut State Police where he designed and implemented law enforcement operations at two of the world’s largest casinos. He was employed by the Mohegan Tribal Gaming Authority where he supervised regulatory investigations and assisted in creating the Tribe’s Department of Athletic Regulation. Mr. Beecher’s experience also includes pari-mutuel gaming regulation as well as fraud prevention and detection. For additional information visit his Web site:
There are various possible scenarios for a Native Hawaiian tribal economy if the Akaka bill passes, including one scenario where tribal land is placed in federal trust and another where tribal land is owned in fee simple. There are also possibilities for Hawai’i’s economy as an independent nation, perhaps in free association with another nation. The options are very complex, and a great amount of time and public education will be needed before any decision should be made to adopt a specific model of sovereignty. See:
Two resolutions passed by the Western States Sheriffs' Association in 2003 and 2004 are very important to be aware of when considering the consequences of the Akaka bill. There are serious law enforcement problems arising in local jurisdictions throughout America due to the sovereign immunity of Indian tribes. If the Akaka bill passes and the Akaka tribe gets created, jurisdictional conflicts will be far more severe in Hawai'i than in any other state. That's because the Hawaiian homelands, and lands owned by Bishop Estate (Kamehameha Schools) and other ali'i trusts, plus portions of the ceded lands, would probably become tribal lands. Indeed, most of the ceded lands could become tribal lands if the Legislature is as generous in giving away the public lands as it has been in giving away the public's money to OHA and DHHL. The Akaka tribe's lands would be scattered throughout all the islands, and located in virtually every portion of every island. Tribal businesses established on such lands, and the homes and incomes of tribal members, would be exempt from taxation , zoning regulations, labor laws, environmental laws, etc. State and county law enforcement officers would need to negotiate with tribal officials for access and authority in such areas. The situation would be especially severe if Bishop Estate decides to re-incorporate under tribal jurisdiction, making tribal businesses at Royal Hawaiian Shopping Center, Windward Mall, etc. exempt from state and local taxes, regulation, and jurisdiction. The following document contains copies of two resolutions passed by Western States Sheriffs' Association in 2003 and 2004 on the subject of tribal sovereign immunity abuses and local public safety impacts. The letterhead stationery shows the number of states and organizations standing behind these resolutions. See:
The marketing of the Akaka bill is also a topic of interest to the business community. OHA has spent millions of dollars on advertising to influence hearts and minds, and on lobbying Congress and the Bush administration. For information about the sovereignty biz, see:
The Office of Hawaiian Affairs has been playing word-games with the concepts of "Indian" and "tribe" and "reservation." This paragraph is a discussion about those word games. Readers should skip this paragraph if they want to get directly to the important issues identified above. OHA has been conducting a major advertising and public relations campaign to persuade both ethnic Hawaiians and the remaining 80% of the population to support the recognition bill. OHA has discovered that Hawai'i's people react negatively to the concept of an Indian tribe in Hawai'i, and especially to the idea that we might have tribal reservations. Therefore, OHA officials now make a point of saying that the Akaka bill would not turn Native Hawaiians into Indians. And they claim that we would not have tribal reservations in Hawai'i. Yet, the Akaka bill always goes through the U.S. Senate Select Committee on Indian Affairs, and proposes to place Native Hawaiians under the plenary power of Congress to be administered through the Department of Interior. The process for recognition is remarkably similar to the process for other tribes. Both the Akaka bill and OHA cite the Indian Commerce Clause of the U.S. Constitution as the source of Congressional authority to recognize Native Hawaiians -- a clause which refers only to Indian tribes and not to Indians as a racial group. The word "reservation" is exactly the right word for the Hawaiian Homelands under DHHL, which have definite boundaries surrounding land which cannot be bought in fee simple and is kept forever "in trust" exclusively for ethnic Hawaiians of 50% or more blood quantum who lease land for a dollar per year to build homes. OHA also claims that ethnic Hawaiians as a race own 1.8 Million acres of "ceded lands," or at least major portions of them. The Akaka bill says that once the new tribe has been recognized, the tribal council may then enter into negotiations with the U.S. and State of Hawai'i to identify the tribal lands and to transfer control of them to the tribe. To use an ancient saying of America's indigenous politicians exemplifying their close relationship with the animals of the land: if it looks like a duck, walks like a duck, and quacks like a duck, then, by golly, it must actually be a duck. The Akaka bill provides two main differences between the Akaka tribe and most other tribes: Native Hawaiians would not automatically be able to invoke the provisions of the Indian Gaming Act to establish gambling casinos, and Native Hawaiians would not automatically be able to receive the same benefits as other Indian tribes through the programs of the Bureau of Indian Affairs. However, the bill does not prohibit casinos, nor does it prohibit receiving the same benefits as other tribes (perhaps through a different federal bureaucracy); and both of these bureaucratic, technical limitations could easily be overcome through subsequent legislation or through court action claiming unequal treatment of Hawai'i's "indigenous people."
UNTAXED, UNREGULATED BUSINESSES ON TRIBAL LANDS (CEDED LANDS, BISHOP ESTATE LANDS) DRIVING OUT LOCAL BUSINESSES AND REDUCING THE TAX BASE; LEASEHOLD HOMES ON TRIBAL RESERVATIONS; NEPOTISM, CORRUPTION, AND SOLE-SOURCE CONTRACTING AMONG OHA, BISHOP ESTATE, AND SANDWICH ISLE COMMUNICATIONS (A $500 MILLION DHHL CABLE-WIRING PROJECT)
Federally recognized tribes enjoy sovereign rights comparable to those of the States, and generally superior to the rights of cities and counties. Sovereignty means tribes can do as they please on their tribal lands, exempt from local zoning laws and environmental regulations. Tribal businesses on tribal lands are exempt from federal, state and local income, sales, and excise taxes; and also exempt from laws regulating minimum wages, unions, workers compensation, and racial discrimination. Thus they can operate gas stations, liquor stores, grocery stores, tobacco shops, etc. at significantly lower cost and make huge profits while underpricing their fully-taxed and fully-regulated non-tribal competitors across the street. Before too long, those competitors are driven out of business and the tax base supporting local and state government is reduced. Nevertheless, local and state government must continue to pay for building and maintaining roads, schools, water, sewage, electric, police, fire, etc.; including upgrades to state and county roads and utilities leading to or from the growing tribal businesses.
Keep in mind that OHA and other Hawaiian activist groups strongly maintain that all the ceded lands (or at least a large part of them) belong to Native Hawaiians, and such ceded lands will be transferred to the control of the newly recognized Akaka tribe where they will become tribal lands enjoying all the sovereign exemptions mentioned above. For information about the ceded lands, see:
Also keep in mind that in Hawai'i those ceded lands are scattered in numerous neighborhoods throughout all the islands, so that tribal lands and tribal businesses would be in close proximity to non-tribal lands and businesses (not isolated in remote areas, as on the mainland). There would be constant jurisdictional disputes and lawsuits between the Akaka tribal government and local governments, and also between tribal and non-tribal businesses and suppliers, police and fire departments, etc. Some of those disputes would have to be tried in tribal courts under tribal laws, or in federal courts. State and local courts do not have jurisdiction over sovereign tribes, or their commercial activities. Also bear in mind that tribal governments enjoy sovereign immunity from lawsuits, which makes it difficult to enforce contracts between businesses and tribes unless a waiver of sovereign immunity is negotiated along with the contract.
The ceded lands are not the only places in Hawai'i where tribal reservations or tribal businesses could be established, free from taxation and regulation. Bishop Estate, now known by the kinder, gentler name Kamehameha Schools, is the largest private landowner in Hawai'i. It is incorporated under the laws of the State of Hawai'i and the U.S. government as a tax-exempt charitable foundation. However, it is under court challenge because of its racially exclusionary admissions policy, and it worries constantly that it might lose its tax exemption under Internal Revenue Service policies that prohibit racial discrimination. If the Akaka bill passes and a tribal government is formed, it would be very logical for KSBE (Kamehameha Schools Bishop Estate) to switch its incorporation from the state and federal governments to the Akaka tribal government in order to preserve the tax exemption along with the racially exclusionary admissions policy. As a result, all the land holdings of KSBE would be considered tribal lands, where tribal businesses could operate untaxed and unregulated. The implications are mind-boggling, since KSBE owns valuable commercial property scattered throughout Hawai'i including, for example, Royal Hawaiian Shopping Center in Waikiki, and Windward Mall in Kane'ohe. For information about KSBE's racially exclusionary admissions policy, and its tax exemption, see:
Other racially exclusionary ethnic Hawaiian institutions with substantial assets and landholdings might also follow a similar path. For example, the Queen Lili'uokalani Childrens Center had a huge battle with Honolulu City Council in 2002 over forced conversion of leasehold to fee simple condominium ownership. To read about the legal issues involved, and also the racial demagoguery on this issue by Haunani-Kay Trask, see:
Leasehold owner-occupants of homes or residential condos on Bishop Estate or QLCC land might suddenly find themselves living on an Indian reservation where their rights as tenants and homeowners would be "protected" only by tribal courts operating under sovereign immunity from lawsuits, with tribal judges quite possibly sharing the attitudes of Ms. Trask.
The main supporters of the Akaka bill are huge, wealthy institutions whose administrators and staff stand to profit enormously if the bill is passed. These people are shamelessly exploiting the Hawaiian grievance industry, getting land, money, and power for themselves by claiming to work on behalf of poor, downtrodden Hawaiians. Passing the bill will let them pass along to everyone else their BILL for housing, healthcare, education, infrastructure development, and lavish lifestyles. There are already some outrageous examples of nepotism, sole source contracting, and possible corruption in the relations among the Office of Hawaiian Affairs, the Department of Hawaiian Homelands, Kamehameha School/Bishop Estate, and government officials. A webpage focuses on the following: (1) Text and analysis of the "Ethics" section of the Akaka bill that could easily be interpreted as a license for nepotism in relations between the federal office overseeing the Akaka tribe, the Akaka tribal council members, and contractors; (2) Beadie Dawson's role in writing the Native Hawaiian Recognition bill, and her family corporation's history of profiting from sole-source government contracts; (3) The Office of Hawaiian Affairs plan to spend up to $9 Million for media propaganda and to lobby for the bill's passage; (4) A sole-source contract for OHA Chairman Clayton Hee's brother, family members, and political cronies to spend $400 Million of federal funds to provide fiber-optic cable exclusively to interconnect all 203,000 acres of the racially exclusionary Hawaiian Homelands; (5) An upscale housing development on racially exclusionary Hawaiian Homelands overlooking downtown Honolulu, where wealthy professionals get free land for homes that were valued as high as $385,000.00 even in the depressed real estate market of 2000. See:
Further evidence of current and future greed is provided by the Council for Native Hawaiian Advancement. CNHA was formed specifically to be an umbrella organization for the Hawaiian institutions supporting the Akaka bill, especially the large wealthy institutions, and "service providers" who live off of race-based federal grants -- OHA, DHHL, Alu Like, Papa Ola Lokahi, Kamehameha Schools, Native Hawaiian Legal Corporation, Queen Lili'uokalani Childrens Center, UH Center for Hawaiian Studies, Native Hawaiian Leadership Project, Ka Lei Na'auao (consortium of Native Hawaiian "public" charter schools), etc. All these organizations are either racially exclusionary or race-focused. All are threatened by lawsuits specific to them, or more general lawsuits or administrative actions, that eventually will put them out of business unless the Akaka bill passes. CNHA aims to share information on how to squeeze more money out of government through grant-writing; how to pool their lobbying efforts to pass federal legislation to send more money to these organizations; and how to pass the Akaka bill.
In September 2002 the CNHA held its first annual convention, in Waikiki. President Dobelle was the keynote speaker and pledged to harness UH as an active political supporter to help convert the dream of Hawaiian sovereignty into a reality. For the first annual conference, there was a registration fee of $350 and an exhibitor fee of $450. The Arctic Slope Regional Corporation donated $25,000.00 as one of the conference sponsors. If the Native Hawaiian recognition bill passes, ASRC might be hoping to make major profits in Hawai’i in partnership with the Akaka tribe. Also sponsoring and attending the conference were Ukpeagvik Inupiat Corporation, numerous banks, insurance firms, construction firms, law firms, and Rural Community Assistance Corporation. The RCAC was probably there in relation to Al Hee's Sandwich Islands Communication company's $500 Million cable wiring project on Hawaiian Homelands.
The organizations in CNHA are already thriving and engaging in questionable practices. The second annual convention of CNHA is being held August 27-30, 2003 at the Sheraton Waikiki. The sound that can be heard above the chanting and praying is lip-smacking at the prospect of unlimited wealth and power after the Akaka bill gets passed. That wealth and power will come at the expense of companies driven out of business by untaxed and unregulated Native Hawaiian businesses, and at the expense of ripping apart the multiracial fabric of Hawai'i to create an apartheid government.
SENATOR KYL FROM ARIZONA, A STATE WITH PLENTY OF EXPERIENCE WITH INDIAN TRIBES, WARNS HAWAI’I ABOUT THE IMPACT OF TRIBAL RECOGNITION ON LOCAL BUSINESSES AND THE LOCAL COMMUNITY, ESPECIALLY BECAUSE IN HAWAI’I WE ALL LIVE SIDE-BY-SIDE
In September 2003 Senator Kyl wrote a letter to his constituents explaining wht he opposes the Akaka bill. His reasons are mostly focused on the bill’s unconstitutionality. But included in his letter he says the following:
The Akaka bill would authorize persons with some Native Hawaiian blood to form a Native Hawaiian government. This government would have powers identical to those of a reservation Indian tribe - the power to tax, regulate, and make laws for its members.
On a practical level, it is difficult to imagine how such a government would interact with the rest of Hawaii's people. Tribal Indians on a reservation generally are immune from state laws - from the taxes and regulations that apply to other residents of the state. But unlike reservation Indians, Native Hawaiians do not live in one area of the State that is set aside for Indians. They live in the same cities and neighborhoods, and on the same streets, as other Hawaiians do.
Would the citizens of the new Native Hawaiian government - like reservation Indians - be immune from state laws, regulations, and taxes? Would a Native Hawaiian-owned business - like a reservation Indian business - be exempt from the taxes that its non-Native competitors must pay? If Congress were to create a separate tribal government for Native Hawaiians, it would be imposing just such a system on the people of Hawaii. Persons of different races, who live together in the same society, would be subject to different legal codes. This would not produce racial reconciliation in Hawaii. Instead, it is a recipe for permanent racial conflict.
The full text of Senator Kyl’s letter can be seen at:
HAWAI’I SHOULD LEARN FROM TROUBLE IN CONNECTICUT
Tribal recognition in Connecticut has been so corrupt that a book was written about the process whereby the Mashantucket Pequot Tribe got recognized: Jeff Benedict, “Without Reservation: The Making of America's Most Powerful Indian Tribe and Foxwoods, the World's Largest Casino.”
Connecticut offers an interesting parallel with Hawai'i. Both states have rural areas, industrial areas, and also urbanized residential areas. The concept of an Indian tribe somehow seems out of place in Connecticut, as in Hawai'i. Also, in Connecticut, so-called "tribes" which could not get federal recognition through the Bureau of Indian Affairs in the normal way (because they weren't real tribes!) used insider influence-peddling and campaign contributions to get their Senators and Representatives to push bills through Congress to get federal recognition, greatly assisted by Hawai'i Senator Dan Inouye, who was chairman of the Senate Select Committee on Indian Affairs whenever the Democrats held a majority.
Conflict between tribes and local communities in Connecticut has become so bad that leaders at the state level are pleading with Congress to stop recognizing new tribes and to regulate the way existing tribes can exercise sovereignty. Connecticut Senators Joseph Lieberman and Christopher Dodd have introduced bills in Congress to stop further tribal recognitions until improvements are made.
On March 10, 2003 Attorney General Richard Blumenthal of the State of Connecticut sent a 3-page single-spaced letter pleading with Senator Daniel Inouye, Ranking Member, Senate Committee on Indian Affairs. Here are excerpts from Blumenthal’s letter which are very relevant to what Hawai’i neighborhoods face:
"...Given the immense, far-reaching significance of recognition decisions for affected states, municipalities and the public, the potential denial of the right to judicial review is fundamentally unfair. It deprives those affected parties -- particularly sovereign states -- of their rights to due process and other constitutional guarantees ... A decision by the federal government to recognize an Indian tribe has profound and irreversible effects on tribes, states, local communities, and the public. Tribes that receive federal recognition may be permitted to operate commercial casino gaming. They are exempt from most state and local laws and land use and environmental regulations. They enjoy immunity from suit. They may seek to expand their land base by pursuing land claims, or seeking to place land into trust under the Indian Reorganization Act. They may be insulated from many worker protection statutes relating, for example, to the minimum wage or collective bargaining as well as health and safety codes ... For these reasons, I urge you to reject S.297 and support reform measures, such as S.463, that will restore public confidence, integrity, and fairness to the recognition process."
A web page includes the following items: (1) Longer excerpts from the letter from the Attorney General of the State of Connecticut, Richard Blumenthal, to Senator Dan Inouye, dated March 10, 2003; (2) A book review of Jeff Benedict's "Without Reservation," documenting the corrupt Congressional recognition of a phony Indian tribe in Connecticut (a process that threatens to be repeated with the Native Hawaiian Recognition Bill); (3) A newspaper article describing continuing corruption, in the case of the Congressional recognition of another phony Indian tribe in Connecticut several years after the Mashantucket Pequot recognition documented in Jeff Benedict's book. The newspaper article points out that Senator Inouye's most important staffer is married to the attorney who was representing the "tribe" seeking recognition through a bill before Inouye's committee. Interestingly, in 2003, the Senate Indian Affairs Committee has several important staffers who have long represented Native Hawaiian interests. Their presence in key positions on the committee staff guarantees an overwhelming positive attitude by the committee toward the Akaka bill, an immediate compliance to any amendments or further hearings that might be requested by bill supporters, and immediate suppression of any negative input. For further information about items (1), (2), and (3) see:
The following newspaper article was published by a selectman (city councilman) of the town of North Stonington, Connecticut, on August 6, 2003. Hawai’i readers will see close similarities between the arguments made by supporters of Indian tribal separatism in Connecticut and by supporters of Hawaiian sovereignty. Readers should also note that if the Akaka bill passes, Hawai’i (both ethnic Hawaiians and the general population) will face problems similar to those in Connecticut.
The Providence Journal (Rhode Island)
August 6, 2003
Indian rights vs. American principles
by William Peterson, Selectman, North Stonington, Connecticut
AS A SELECTMAN in North Stonington, I realize that people not directly affected by American Indian tribal issues have often viewed our local disagreements with the Indians as just the latest maddening example of racism and intolerance emanating from the dominant culture. In fact, I am sometimes asked why we can't all just get along. I often ask myself the same question.
No one can argue that federal policy has been anything but a disaster for American Indians, from the very beginning. But in a poorly thought-out attempt to compensate for past injustices, our government has put all Americans, Indian and non-Indian, through divisive and expensive processes that are a repudiation of a founding principle of our nation.
This principle -- equality of citizenship -- is the basis for the American experiment in democracy. And yet, across the nation, this fragile concept has come under assault by those who condescendingly believe that American Indians are not the same as their neighbors, and that they require special sovereign rights and unique legal status.
American Indians are citizens of the United States. In fact, far from being simple "hunter-gatherers" living in innocent harmony with nature -- as some Indian officials have argued -- Indian citizens are or have been U.S. senators, astronauts, architects and university professors. In Connecticut, long before being federally recognized, Indians were Wall Street stock analysts, naval officers, business executives, mayors, selectmen and educators (such as my fondly remembered fourth-grade teacher). Some tribal members proudly assert, with no little historical irony, that they also descend from the Mayflower Pilgrims!
Where, based upon their Indian heritage, is the evidence for the economic or political disenfranchisement of these Americans? Where do you see the need for special consideration under the law, much less for sovereign rights?
Why is this point so important? Because sovereign rights are not simply affirmative action, which may have merit for some Indians; they are the granting of exclusive rights, forever, to certain citizens and their descendants. This is an odd contradiction for a nation that fought an eight-year-long revolution partly over the issue of exclusively held inherited privilege.
Why are exclusively held rights unacceptable -- even for Indians? This question goes to the heart of who we are as a people. Martin Luther King Jr. believed that it was the content of a person's character and not the color of his skin by which he should be judged as a citizen. The Declaration of Independence states with elegant simplicity that "all men are created equal."
The 14th Amendment guarantees, with no expressed or implied exceptions for Indians, equal protection and treatment under the law for all citizens. The Supreme Court in 1954 struck down the hideous racist concept of "separate but equal," in all its nefarious disguises -- including, in my view, Indian reservations, which are outdated anomalies left over from a sad era of institutionalized racism. The hard-won civil-rights laws of the 1960s -- which some of us went into the streets to support -- reaffirmed, yet again, the founding principle of citizen equality. Every honest impulse in the American people's spirit is based upon our nation's egalitarian ideals.
Every impulse, that is, except where it involves Indians. Here, blind paternalistic emotion, encouraged by limousine loads of crocodile-teared lobbyists, continues to rule the day in influencing public opinion and policy.
There isn't a rat whisker's bit of difference in public policy between the "whites only" laws of the 1950s and the Indians-only "rights" of today. It is racial segregation, pure and simple, and someday our representatives and jurists will look around America and see the unhappy divisions and conflicts that they thoughtlessly perpetuate with their unworkable laws and contradictory legal decisions involving Indians.
Land claims, tribal recognition, casino battles, tax-free-tobacco fiascos, harpooned whales on the West Coast, and all the rest of today's Indian news are a predictable outgrowth of stupid policies that try to reconcile the sovereign status of one group of citizens with the whole. We are finding out the hard way that it can't be done. Until all citizens live under the same set of laws, we will continue to argue over "Indian issues."
Given all the past prejudices and injustices, my prayer is that "we the people" find ways to honor Indians and Indian culture that do not make a mockery of the founding principle of our nation. Even -- perhaps especially -- for the disenfranchised among us, it is clear that sovereign rights for a few citizens are incompatible with and destructive of civil rights for all citizens.
William Peterson is a selectman in North Stonington.
Following is an article published October 26, 2003 in an eastern Connecticut daily newspaper “The Day” serving the towns of Ledyard, Preston, and North Stonington. The authors are the first-selectmen (city council chairmen, equivalent to mayors) of those three towns. Some of the problems they describe are related to the casino established by the mashantucket Pequot tribe. But many of the problems are typical of jurisdictional disputes and loss of tax base experienced by towns located near Indian lands. Bear in mind that the process used by the Pequots to get federal recognitionis the same process now being used by Native Hawaiians to seek recognition. And although the Akaka bill says the Hawaiian tribe would not automatically be able to have a casino, it is entirely likely that they could file a lawsuit and win the right to establish a casino in much the same way as the article says the Mashantucket Pequots did (the existence of non-Indian church bingo nights for charity was all it took for the tribe to win the right to build the world's largest casino).
Settlement Act: If Only The Towns Knew In 1983 What They Know Now
[Published on 10/26/2003]
By Wesley J. Johnson, Sr., Robert Congdon and Nicholas Mullane
When President Reagan signed the Mashantucket Pequot Settlement Act on Oct. 18, 1983, little notice was taken of it in the three towns of Ledyard, North Stonington and Preston since most of the work involving the land issue had been done in Washington, D.C.
This act provided recognition of the Mashantucket Pequots as a federally-recognized tribe, gave them an 800-acres reservation within the boundaries of Ledyard, and $900,000 for the purchase of land within the reservation boundaries and for economic development.
Little did the residents of these three towns realize the impact this legislation would have on their lives in the coming years.
Initially, no impact was felt; then came the announcement of the construction of a 1,200-seat bingo hall on the reservation. The bingo hall gave the towns our first glimpse of the potential impacts of Native American gaming on our communities. The passage of the Indian Gaming Regulatory Act led to a lawsuit by the tribe against Connecticut, claiming charities' ability to conduct “Las Vegas Nights” provided the tribe the right to conduct Class III gaming.
The vast wealth generated by the casino provided the tribe the financial resources to purchase land outside the settlement area. When, in 1993, the tribe submitted an application for annexation of land outside the settlement area, it made residents angry in all three towns and continues to flavor their feelings toward the tribe to this day. The towns' opposition to the annexation of land is warranted for several reasons: it erodes the towns' tax base; it removes all local land use controls, such as planning and zoning; and it provides the tribe many sovereign rights, at the expense of civil rights and protects the tribe from litigation in Connecticut courts.
The development of the casino created many impacts for the surrounding towns without the benefit of local tax revenue to mitigate these impacts. While Ledyard, North Stonington and Preston are considered the host communities for the casino, its impact reaches across all of Southeastern Connecticut. Fire, police and ambulance services in the host towns have been severely impacted. Emergency calls have increased dramatically, causing both personnel and financial burdens. And other towns face casino-related burdens as well. For example, the Norwich school system has the burden of dealing with more than 30 languages within its system, mostly children of casino workers who have moved in from elsewhere. Housing throughout the region has been impacted. Currently, there is an identified shortage of more than 5,000 units of affordable housing.
Sovereignty has brought litigation. The tribe has tried to extend its sovereignty as a tax shelter to the vendors who have contracts to supply equipment to the tribe, feeling that tribal sovereignty extends to their companies since their equipment is located within the reservation boundaries. One case has already been settled by Ledyard.
Additionally, a recent court case involves a tribal member seeking a refund of her state income taxes paid while living in Ledyard, outside the reservation. The tribal member is claiming the area should be designated as “Indian Country” and given the same sovereign rights as lands within the reservation. If areas outside the reservation are granted “Indian Country” status, it would be devastating to not only local communities, but also the entire state. State and local tax revenues would be impacted as well as all of the land use and environmental issues raised with our opposition to annexation.
Several years ago, the tribe sought to gain the exclusive franchise right to distribute water in our towns. We were successful in retaining our exclusive service area through a public process, the Water Utility Coordinating Committee (WUCC). The tribe recently tried to overturn the WUCC determination through a back-door deal with the Department of Public Health. The actions of the tribe and Department of Public Health have forced the towns to defend our sovereign rights once again.
Probably one of the greatest challenges facing the towns and the tribe is to develop a working government-to-government relationship when the foundation is in question. Bret Fromson, author of “Hitting the Jackpot,” said in a recent interview, “The Pequots are essentially living a lie, and that is one of the fundamental problems facing these people.” “How do you become a tribe, when you are not a tribe . . .”
Improving our relationship with the tribe will be difficult until such time as the federal government has the courage to address U.S. Indian policy.
If we only knew then, what we know now.
Wesley J. Johnson, Sr., Robert Congdon and Nicholas Mullane are first selectmen of Ledyard, Preston and North Stonington respectively.
SOME OTHER PLACES WHERE INDIAN TRIBES AND LOCAL COMMUNITIES HAVE TROUBLE
The problems in Connecticut have gotten so bad that the state's attorney general and both of its U.S. senators, and congressmen from affected areas, have taken action (see above). But Connecticut is not the only place where there's trouble.
On February 17, 2005 Florida Governor Jeb Bush sent a two-page letter on official stationery to the Christian Coalition of South Florida expressing his opposition to the proliferation and expansion of tribal gambling casinos. Governor Bush says, in effect, that the problem was caused by Indian casinos already established before he became governor, and that there is little he can do to solve the problem, although he constantly opposes the casinos in the Legislature. Bush notes that the casinos are cannibalizing other businesses in the community. This letter should serve as a warning to businesses and communities in Hawai’i that passing the Akaka bill sets in motion powerful econolic and political forces that can then spin out of control. Here is a photo of Governor Bush’s letter on official stationery.
Fake tribes seeking federal recognition to operate casinos are cropping up throughout America. And once a tribe gets recognized, it immediately makes demands for money, land, and power. Casinos are often not the main issue. Indeed, genuine tribes that have been federally recognized for over a century and previously reached land settlements have been reasserting old claims in ways that cause havoc for local communities. Here are a few samples:
Upstate Citizens for Equality, Inc.; P.O. Box 24; Union Springs, NY 13160
Upstate Citizens for Equality (UCE) is a growing, not-for-profit corporation composed of concerned citizens that stand against discrimination, and supports the continuation of free enterprise and equality in our communities. UCE was formed in August 1997 to give the landowners facing the Oneida Land Claim a voice in what will determine their future. In 1999 the Seneca-Cayuga Chapter was formed in part due to the Cayuga Land Claim. The Niagara Frontier Chapter of Upstate Citizens for Equality was formed in December 2002 as a result of increased inquiries to the Seneca-Cayuga and Madison-Oneida Chapters from people in the western portion of New York who are currently facing claims by the Seneca Nation of Indians in Grand Island and Cuba Lake as well as the proposed increase of "sovereign" land in the middle of their communities. Each Chapter of Upstate Citizens for Equality has its own mission statement to reflect the unique issue each is faced with. These mission statements are available through the links ... Generally our organization seeks equality under the law and the rule of law applied equally. We believe that the current federal Indian policy is fatally flawed.
United Property Owners, headquartered in the State of Washington, founded in 1989
GRASSROOTS STRENGTH & INFORMATION ON THE PROTECTION OF PRIVATE PROPERTY RIGHTS
United Property Owners (UPO) is a nonpartisan, nonprofit umbrella organization representing more than 78,000 individual citizens, elected officials, local governments, property owner groups, small businesses, and trade associations in thirty-eight states, who joined together in 1989 in a mutual effort to defend our constitutionally guaranteed civil liberties and property rights. As a coalition of concerned citizens from across the country, UPO acts as your eyes, ears and voice in Washington, DC, working hard to defend the private property and civil rights of all citizens, taxpayers, and small business owners, Indians and non-Indians alike. We seek to bring more balance to federal Indian policy by giving local communities more voice in the government decision-making process, which impacts your daily life in so many significant ways. For the past few decades, federal bureaucrats and tribal activists have been eating away at our individual liberties, little by little. Aiding this process has been too many elected officials, who take an oath to defend and protect our Constitution, but who instead have often trampled it in exchange for campaign contributions and political expediency. UPO is committed to returning our great Nation to the principles of our Founding Fathers and championing individual rights over group rights and special privilege.
Here is an article about the loss of revenue to the State of Oklahoma due to tribal tax exemptions for businesses. The article estimates that the entire state budget deficit is due to the reduction in the state’s tax base. Also, tribal sales of untaxed cigarettes have driven non-tribal businesses out of business, and the low price of cigarettes has caused an increase of cigarette smoking which in turn has produced rising rates of disease and healthcare costs borne by the state.
The Journal Record (Oklahoma City, OK), November 10, 2003 (excerpts)
The high cost of success
by Ray Carter
The exponential growth of Native American financial and political clout in Oklahoma may come with a high price for state government, according to critics.
Because tribal entities are essentially treated as separate states, Oklahoma government does not receive direct benefit from much of the economic activity generated by the state’s 39 tribes. As a result, critics say the profits generated by tribal businesses are essentially subtracted from the revenue of non-tribal businesses, leading to a significant and growing loss
in state tax collections.
The consequences of that shift could be far reaching.
“We don’t know for sure, but some officials at the Tax Commission estimate up to a half a billion dollars in losses from tribal activities,” said Jeramy Rich, director of governmental relations for
the Oklahoma Farm Bureau. “It’s a huge impact.”
But if that $500 million estimate is correct, the loss of state tax revenue to tribal governments could account for nearly all of Oklahoma’s state budget shortfall in the 2003 legislative session.
“That’s like saying 7 percent of our population is exempt immediately,” said Rep. Forrest Claunch, R-Midwest City. “Doesn’t that increase the burden to pay for those roads and all those other things on the remaining 93 percent? Sure it does.”
Critics argue that the tribes are aggressively exploiting the advantages of their sovereign status and threatening the continued existence of many non-tribal businesses in the state.
“They don’t have any of the same problems or tax constraints or oversight generally speaking that ordinary businesses do, so it’s just an absolutely unfair situation,” Claunch said. “If they want to use our roads to get back and forth to places, I think they ought to pay our taxes. They can be a sovereign state all they want to, but there has to be reciprocity in this.”
“We believe any entity who could go out and start any type of business and do so unregulated and untaxed could probably be successful and employ people,” Rich said. “But that’s not what keeps
pavement on our roads, textbooks on school desks, teachers paid, prisoners incarcerated, those
kinds of things.”
Since tribal tobacco retailers provide state payments equal to only 25 percent of the state tobacco tax, tribal smoke shops and convenience stores have a huge price advantage over non-tribal competitors. That small distinction has had a multimillion-dollar impact in
“Most people, including QuikTrip, believe that the tribal entities have around 43 (or) 40 percent of the cigarette business in Oklahoma,” said Mike Thornbrugh, governmental affairs manager for
Tulsa-based QuikTrip Corp. “That’s a huge market share.”
State health officials also believe the price advantage enjoyed by tribal tobacco retailers has a large price tag for Oklahomans in the form of health care expenditures.
“Oklahomans smoke more cigarettes,” said Richard Barnes, chairman of the Oklahoma Alliance on Health. “We don’t have a higher percentage of the population who smokes than the national average, but we’re way out front on the number of cigarettes that each of our smokers smoke, which has a significant adverse health impact because the disease caused by cigarette smoking is in most cases dose responsive. In other words, if you smoke more cigarettes, you’re going to get the disease quicker and it’s more likely to be a more serious disease.”
Barnes said the impact of tribal smoke shops on cigarette consumption in Oklahoma is “hard to say” but he said the low prices offered by tribal outlets undoubtedly play a role. “I guess you could extrapolate from that that it has had a negative impact on consumption to have the Indian smoke shops have a price advantage plus enjoy over a third of the sales of cigarettes in Oklahoma,” he said.
The advantages enjoyed by tribal outlets selling cigarettes also impact other sales at non-tribal outlets. “If you don’t draw people to go inside for inside sales, you’re sure not going to get them for your outside sales on gas and that’s a key component,” Thornbrugh said.
Tribal officials are also becoming more sophisticated in their business development, using a cluster approach that incorporates several businesses at one location – a smoke shop next door to a gaming center next door to a tribal-owned hotel. By utilizing a one-stop approach, tribal officials hope to receive a greater share of each customer’s disposable income that would
otherwise go to non-tribal outlets.
As revenue has skyrocketed, tribal governments have become active participants in the political process. In Oklahoma, the Chickasaw Nation and the Choctaw Nation of Oklahoma were two of the largest single contributors to state political campaigns during the 2002 election cycle, according to data compiled by the Institute on Money in State Politics.
Supporters of the tribes also say there is little state government can do to change the advantages enjoyed by tribal governments. “There’s no way the state of Oklahoma can level the
playing field,” Corn said. “That is a federal issue. Anything that deals with the tribes and their sovereignty is all federal and state government has no authority over them. They’re sovereign in comparison to us in our sovereignty and that’s an issue for members of the U.S. Congress.”
“There’s no reason that the tribes should be able to get in a comparable, retail business as any other citizen in this state, collect taxes on non-tribal members and then not remit it to the state
of Oklahoma,” Rich
Here is an editorial published on July 24, 2003 in the Sonoma County (California) Index Tribune. The article is dealing with a local controversy over an Indian gambling casino. But readers in Hawai'i should put aside the casino aspect. This editorial deals with general principles that sound exactly like the sort of issues being raised in Hawai'i regarding the ceded lands, apology bill, reparations for the overthrow of the monarchy, victimhood claims, etc.
Sonoma County Index Tribune, July 24, 2003
Editorial: "No Justice In Casinos"
When spokespersons for Miwok Indians respond to critics of their casino proposal, they fall back on their claim that virtually all of the land in Sonoma and Marin counties, including the land at Highway 37 and Lakeville Road where they plan to build a casino, was stolen from them at some time in the past.
Similar claims can be made by the descendents of almost every Indian tribe in the Americas. In addition, Mexicans have some claims on Texas, California and other parts of the Southwest (although their ancestors probably "stole" it from the Indians). The descendents of conquered and displaced people of many nations could make a case for reparations as well. Dare we mention the slave trade? Man's inhumanity to man is well documented.
But who today must be accountable for the alleged crimes of their ancestors?
Who gets to decide how much is paid, where, when and to whom? How do the citizens of this age balance a scale of justice that goes back centuries when the rules and standards were different?
Finally, how would it be done fairly so the burden of the debt does not fall on a few, while others, presumably equally responsible, pay nothing?
The Miwok tribe spokespersons are saying they decide these questions here in Sonoma County. The "guilty" in the tribe's eyes are local residents who are not of Miwok descent.
Having declared that non-Miwok local residents are responsible, they've announced our penalty - that they (the Miwoks ) can carve out a choice spot in Sonoma County and build a casino. They do not have to follow the laws that we have established through our elected representatives for the safe, civil, healthy and orderly operation of our society. They are not bound by our planning and environmental regulations and they do not have to pay local taxes. They, the gambling corporation, and the politically well-connected land speculators who put this deal together will make some big money, and our region will be the worse for it.
That is their idea of justice.
In a fair trial, we would have our day in court. Unless Congress acts in our defense, we will not get that chance. Having been declared guilty without a trial, neither will we have an opportunity to argue in a court of law that the penalty is unequal, unfair and unwise. And although we live in a representative democracy and have the right to vote, we don't get to vote on this.
The Miwoks may make the charge that someone terribly abused their ancestors, but they can never prove their case that the current residents of this region or this state are in any way responsible. None of us was there, and we are not responsible for the laws and morality of the distant past.
Were the Miwoks really there first, or did they push out some earlier indigenous group? Did Americans steal the land or did the Mexicans? Isn't this just another example, repeated throughout the ages, of one group of people conquering another?
The list of potential claimants for war reparations is as long as history itself.
But our accusers say someone must pay them and have pointed the finger at us. Having made the innocent guilty, their proposed punishment is equally unjust. The idea of placing a separate sovereign nation, funded by gambling, in the middle of well-established, civil, local government, is as stupid and illogical as it is harmful.
This precedent will lead other tribes, backed by other corporate gambling interests, to "leap-frog" ever closer to lucrative high-traffic locations, leaving earlier and more rural Indian casino enterprises to wither and die. It is a shell game that will never lead to real economic independence for the majority of Native Americans in the 21st century.
This is not justice. It is one group of people using others and a loophole in the law for personal gain. Call it what it is - a scam.
- Bill Lynch, Editor
Closing note from Ken Conklin, website editor:
Hawai'i readers will note the close similarity between the Indian claims being raised in Sonoma California and the ethnic Hawaiian claims.
The issue of reparations for Native Hawaiians for the overthrow of the monarchy is thoroughly discussed by the late Patrick W. Hanifin, a Honolulu attorney who wrote the following article in 1982:
HAWAIIAN REPARATIONS: NOTHING LOST, NOTHING OWED
Patrick W. Hanifin
XVII HAWAII BAR JOURNAL No. 2 (1982)
For information about the ceded lands, see:
The following letter was published in “The Oklahoman” newspaper on December 14, 2003 describing how untaxed and unregulated Indian businesses compete unfairly against fully taxed and regulated businesses in Oklahoma. A nationwide consortium of businesses has been formed to lobby against unfair business competition and to preserve the unity of “one nation” under a common set of laws.
Seeking a level playing field
by Mickey Thompson
Educating Oklahomans and all Americans on the potential impacts of federal and state Indian policies is the primary goal of a coalition of business and property rights advocates called One Nation Inc.
One Nation — a name taken from the final sentence of the Pledge of Allegiance — includes thousands of individuals and companies in energy, agriculture, retailing, manufacturing and grass-roots organizations.
Among the state and federal issues most important to One Nation:
It is legal for tribal businesses to sell goods to tribal members without local, state and federal taxes. It is illegal for tribal businesses to sell goods to non-tribal members with no tax or reduced tax. Unfortunately, the law is not enforced in Oklahoma. As a result, the state is losing hundreds of millions of dollars a year in sales and excise taxes. And hundreds of non-tribal businesses are unable to compete with their subsidized tribally owned competition.
Tribal governments can attain federal authority for water and/or air quality programs. Thirteen Oklahoma tribes have applied for such programs to the Environmental Protection Agency. Dozens of tribes in other states have implemented their own regulatory regimes, superseding local, state and federal laws, most with disastrous results for non-tribal businesses and property owners.
We are concerned a regulatory patchwork across Oklahoma would drive away investment capital and stymie economic growth. Plus, some Oklahoma tribes are attempting to change federal law so their tribal governments may claim reservation status for former Indian reservations here. This could give tribal governments jurisdiction over non-tribal businesses on non-tribal lands in 67 of our 77 counties.
We recently read in The Oklahoman about the explosive growth of Oklahoma tribes' political contributions. We encourage tribal leaders and members to become involved in politics. But what these stories haven't mentioned is that tribal governments aren't playing by the same rules as the rest of us.
State law prohibits corporate contributions and requires contributors and contributions be reported to the Ethics Commission. Indian tribal governments do neither. It appears tribes are giving government money (tax dollars) or corporate money (funds from tribal enterprises). Neither should be allowed.
Oklahoma has the worst record among states that have negotiated compacts with tribes. This is testament to the tremendous political power wielded by Oklahoma tribes.
Additionally, we believe the process of compacting with tribes in Oklahoma is unconstitutional. We believe compacts, much like treaties, must be negotiated by the executive branch and must be ratified by the Legislature.
There are many other important issues, such as removal of millions of dollars of property from county tax rolls as it is purchased by tribal governments, the protection of land and water rights for landowners and municipalities, and the problematic nature of doing business with tribal enterprises that can't be sued (sovereign immunity).
No one claims the tribes don't provide benefits. On the contrary, an estimated $1.5 billion flows annually from Congress to the tribes for programs on housing, nutrition, education, etc., for Indians. No one should dismiss the fact tribes have created job opportunities in the delivery of government services and economic development.
We believe the tribes can do this without inherently unfair tax, regulatory and other advantages that distort the marketplace. We believe these issues deserve public attention, debate and resolution.
Thompson is president of the Oklahoma Independent Petroleum Association and co-founder of One Nation.
The following article was published in the Cape Cod Times (Massachusetts) on February 18, 2004. It is an example of the difficulties caused in small seashore communities because tribal sovereignty allows tribes to escape environmental regulations. Stewardship of the land, and environmental management, and the orderliness of a community, depend upon a system of regulations which everyone must abide by; but when a tribe has sovereignty over lands very close to non-tribal communities it is impossible to avoid conflicts that undermine the need for cohesive land use policy.
2 towns join tribe dispute
By ERICH LUENING
AQUINNAH - Add the towns of Chilmark and West Tisbury to the list of those challenging the Aquinnah Wampanoag's right to sovereign immunity.
Attorneys for the two communities, along with the Martha's Vineyard Commission, filed legal briefs appealing a judge's decision that the island tribe was not subject to local zoning rules. They join the state attorney general's office, the Gay Head Community Association Inc. and the Benton Family Trust in fighting the ruling.
"We feel it is important that a uniform system of land-use controls be preserved across the island," said Mark London, the executive director of the Martha's Vineyard Commission. "The Superior Court decision might be applicable to any land purchase the tribe makes on the island."
In March 2001, Aquinnah tribal members built a shed and pier at the tribe's shellfish hatchery without obtaining a permit from the town. The town challenged the construction, and the dispute could shed light on the larger issue of whether tribes are subject to state and town laws and zoning rules.
The tribe was granted federal recognition in 1983.
The hatchery is on the Cook Lands fronting Menemsha Pond in Aquinnah, one of four areas transferred from the town to the tribe under the terms of a 1983 federal recognition settlement agreement.
Two months later, the town went to court to force the tribe to comply with local zoning rules, arguing that the settlement agreement and state and federal acts all contain language noting that the land conveyed to the tribe is subject to state and island zoning laws.
Barnstable County Superior Court Judge Richard F. Connon ruled last year that there is no language in the settlement setting aside the tribe's sovereign immunity from lawsuit, meaning that the town could not enforce the zoning rules.
Connon's judgment removed the legal bounds set in the 1983 settlement agreement between tribe members, nonresident property owners, the town and the state. The tribe was granted federal recognition in 1987.
In November, Connon refused to revisit his decision, leaving the case to be decided in higher state courts.
Aquinnah Wampanoag officials and their attorney maintain that because the tribe is federally recognized, it constitutes a sovereign government subject only to federal law and regulations.
In response to yesterday's filings by the commission and the state's highest law enforcer, Douglas J. Tuckerman, the attorney for the tribe, said he is not surprised at the number of parties joining the appeal against his client.
"They had all asked to file," he said. "Our argument should stand or fall despite how many parties decide to file."
The following article illustrates two main points: Indian “tribes” are using their influence in Congress in the same way as corporations, to bypass local opposition; and tribal sovereignty involves exemption from local zoning regulations causing severe hardship to homeowners in nearby communities.
Native American Press / Ojibwe News, March 19, 2004
Tribes using influence in Congress to bypass local opposition
By Seth Hettena Associated Press
SAN DIEGO - When a Northern California tribe
wanted help opening a casino on land 40 miles away from its reservation, it
turned to a U.S. Senator -from Colorado. Sen. Ben Nighthorse Campbell helped
write three sentences into a bill that will help the Enterprise Rancheria tribe
turn the piece of pasture in Yuba County into tribal land. It was one of three
instances in recent months in which California tribes sought congressional help
to expand their reservations over local opposition.
Two of the projects were included in a Campbell bill that has become law; the
bill including the Yuba County project is still awaiting Senate action. The
sentences supporting the Enterprise Rancheria casino in Yuba County don't
mention the tribe's name, its location or even a word about gambling. "If the
bill were to give away the tribe's name or to specify Yuba County, we are afraid it would come to the attention of Rep.(Wally) Herger, or our other opponents
...who would demand that he stop the legislation, which he could and probably
would do," tribal attorney James E.Cohen wrote last April to members of the
Enterprise Rancheria. Herger, R-Calif., represents Yuba County,north of
Sacramento. The e-mail was provided to The Associated Press by Cheryl Schmit of
Stand Up for California, an outspoken critic of tribal gambling. Cohen did not
respond to several requests for comment.
Critics charge that tribes are using
their political clout to circumvent state and local laws,leaving communities
with little say over what happens on or near neighboring reservations. "I don't
think we'll ever live to see anything more corrupting than gambling as far as
governance is concerned," said Robert Coffin, a lawyer advising the city of San
Diego in a dispute with the Barona tribe over a water pipeline. "Who can stop
it?" Herger said he will try if the language authorizing the casino in his
district makes it to the House. "This isn't the way we do things in a
democracy," Herger said. "It's like they're trying to pull the wool over a
The tribes' approach is legal and mirrors lobbying by corporations. Tribal
sovereignty also shields them from most state and local laws and taxes,meaning
they typi- cally do not have to seek approval from local municipalities. In
California,however, many tribes have said repeatedly that they want to work with
local com- munities as "good neighbors" when building or expanding casinos. To
some local activists and government officials, the tribes' seeking of favors
through Congress flies in the face of those statements. The land for the Yuba
County casino would be compensation for land the tribe sold to the state in the
1960s that is now submerged by a reservoir. The Campbell bill that has become
law,signed by President Bush earlier this month, aided the Barona tribe in its
efforts to build a 11/2-mile pipeline to its San Diego County casino,hotel and
golf course. The project had been stymied by the city's refusal to grant the
tribe's request to waive environmental review of the pipeline project.
Campbell's bill turns 85 acres of the pipeline's path into tribal land,allowing
the tribe to skirt state environmental laws. Local officials were unaware of the
legislation until it passed. "It wasn't done under cover of darkness," said
David Baron, the tribe's director of government affairs. "At no time was Barona
hiding the fact that it wanted to take the land into trust."
The same bill helps the Agua Caliente tribe of Palm Springs add land to its
reservation. Tribal Chairman Richard Milanovich said the bill is aimed at a
2-acre parcel of condemned land the tribe acquired in downtown Palm Springs.The
parcel is on the site of the tribe ?s proposed downtown entertainment complex,
which has met with local resistance. Critics say the measure gives the tribe
limitless power to acquire land. "I believe they could use this language to
acquire land in downtown L.A.," Schmit said. Campbell's Senate staff didn't
respond to calls this past week seeking comment. Since 2001, Indian gambling
interests across the country have given more than $9.3 million to federal
candidates and political action committees, according to the Center for
Responsive Politics. The No.1 recipient of that money since 2003, according to
the CRP, is Campbell,a Democrat-turned-Republican and the only American Indian
in the Senate, who has received $96,200. He recently announced his retirement.
Passage of the Barona and Agua Caliente legislation in the House was aided by
two influential Republicans,Rep. Duncan Hunter of the San Diego County town of
Alpine and Rep. Richard Pombo of the Northern California town of Tracy. Nicol
Andrews, a spokeswoman for Pombo, said critics were "looking for boogeymen in
the closet," and noted that the bill drew no opposition during the year it took
to pass the House and Senate. "There was not a member of Congress who opposed
this legislation," she said. Pombo has accepted more than $6,750 from members of
the Agua Caliente's lobbying firm, Greenberg Traurig, since 2003. Barona donated
$5,000 to Hunter's Peace Through Strength political action committee last year.
On the House floor last month, Pombo said the pipeline was needed to help fight
fires in the area, which was devastated by October's Cedar Fire, the largest
wildfire in state history. Hunter said the bill also will help local residents
whose wells have gone dry. The tribe blames drought for its water problems,but
residents blame the tribe's golf course. Frances Gesiakowski says her well dried
up shortly after the golf course sprinklers went on in 2001. The 62-year-old
retiree now has to have water trucked to her home near the Barona land. "Anybody
else, any public contractor, has to comply to county regulations and
environmental standards," Gesiakowski said. "Why shouldn't they?"
Macomb County is located near Detroit, Michigan. It has suburban residential communities, strip malls, schools, hospitals, a community college, and a few farms. The following article describes how an Indian tribe from Utah, thousands of miles away, is trying to get a piece of land in Macomb County placed into the tribe’s inventory of reservation land and then to exercise tribal “sovereignty” by building a hospital without regard to local zoning laws or regulations.
The Macomb Daily, December 6, 2004
In Our Opinion: Indian tribe sovereignty
By Macomb Daily Editorial Board
The issue: A tribe is using its sovereignty to circumvent restrictions on building a hospital in Macomb County.
Our view: This time, expanding American Indian sovereignty has gone too far.
American Indian "sovereignty" is on the verge of being used to bypass state regulations on building new hospitals.
Whether those regulations are sensible is not the
point in this case.
Rather, what amounts to a legal fiction is on the rampage in this country.
The latest scheme would use the so-called sovereignty of a 450-member, Utah tribe called the Goshute to circumvent state restrictions and facilitate the building of a 350-bed hospital in Macomb County. The site would be declared tribal property and placed in a federal trust.
Don't think it can't happen. New reservation land is popping up all over to accommodate American Indian-owned and operated gambling casinos. Why not hospitals?
For the past 20 years or so, various tribes have been opening casinos to the point that states whose voters had long since banned them changed their minds in self-defense. It happened in Michigan. The northern reservation casinos led to the Detroit casinos. California has so many casinos now that the gaming gross is almost as large as that of Las Vegas.
This outrageous American Indian sovereignty business started in the 1960s when a federal judge ruled that Michigan tribes didn't have to obey state commercial fishing regulations. The sovereign
privilege had been granted in 19th century treaties, he ruled.
It didn't take long for smart folks to realize this was a legal loophole you could drive a truck through.
To make matters even more bizarre, many tribes make little or no effort to determine whether members or would-be members actually are descended from American Indians.
Inevitably, a tribe here and there has been hijacked by outsiders who seize control and use the sovereign privileges for their own ends.
The Indian casinos essentially are self-regulating, which has led to instances of the involvement of organized crime and others who need to launder money.
Then there is the convenient fact that as members of a sovereign nation-within-a-nation, the Indians and their reservation enterprises don't pay taxes. In Michigan, some have made voluntary payments to local governments, which apparently are contingent on not having any non-Indian
And new tribes have been formed or discovered.
President Bush has felt compelled to put a stop to this sort of expansion.
Of course, there can be a political price to pay for getting in the way of this lucrative charade.
The tribes consider themselves beyond the reach of U.S. laws, including those banning financial contributions to the electoral process by foreigners. They have donated some $150 million so far and are becoming a major special interest group. And their sovereignty doesn't stop them from voting [in local and state primary and general elections].
Anyone who suggests all of this is absurd can be subject to accusations of racism and of making personal attacks on American Indians.
How long will we let the various tribes, when it suits their purposes, act like this?
** A Minnesota court has ruled that sex offenders can avoid the public sex-offender registry by moving their home address to tribal land, where state law requiring sex-offender registration cannot be enforced due to tribal sovereignty. (It is unclear whether the criminal must be a tribal member to use this loophole -- more than half of all residents living on tribal reservations are non-Indians) **
Grand Forks Herald (serving North Dakota and Minnesota)
Wed, July 27, 2005
Appeals Court ruling deals blow to offender registry law
ST. PAUL - The Minnesota Court of Appeals dealt a blow to efforts by law enforcement agencies to track murderers, sex offenders and kidnappers by ruling that the state can't require American Indians living on reservations to register as predatory offenders.
Tuesday's decision affirmed a Cass County district judge's ruling, but it may be appealed.
State courts are increasingly recognizing Indian tribes as separate nations, with sovereign jurisdiction over the regulation of their citizens in most noncriminal matters.
The crux of the Appeals Court decision was that the state's predatory-offender registration law is civil and regulatory in nature - not criminal in nature as prosecutors and the state attorney general's office argued.
The case involved Peter Jones, 31, of Cass Lake, who was convicted in 1996 of kidnapping for locking someone in a car trunk for more than 14 hours. Under state law, that conviction made Jones a predatory offender, and thus required to register his addresses after being released from prison.
Jones twice registered his addresses after moving back to northern Minnesota's Leech Lake Indian Reservation, but he then he moved to another Leech Lake address and failed to register, according to court records. He also failed to respond to mailed requests from the Minnesota Bureau of Criminal Apprehension to verify his address.
Jones was charged in Cass County with failing to notify the BCA of a change of address. Through his attorney, Blair Nelson of Bemidji, Jones argued that because he was an Indian living on his tribe's reservation, the state lacked jurisdiction to punish him for failing to register, which Nelson called a civil-regulatory requirement.
District Judge John Smith agreed and dismissed the case earlier this year. He ruled that Congress had limited the state's jurisdiction on reservations in Minnesota and several other states to matters of criminal law. On Tuesday, a three-judge appeals panel affirmed that in a seven-page opinion.
"It's a little disconcerting," said Dave Bjerga, special agent in charge of the BCA's northern Minnesota office. "It kind of flies in the face of the movement to get a better handle on where these people are."
Nelson said he and Jones were pleased.
"The registration statute is about rounding up the usual suspects," Nelson said. "It does nothing to keep the streets safe. My client was charged with a felony for failing to return a postcard."
It was not immediately clear how many offenders might be affected by the ruling. The state has 16,594 offenders registered by address, according to the BCA, but no quick way of telling how many are tribal members living on their reservations.
Out of the 105 registered offenders in Cass County, about a dozen besides Jones appear from their addresses to live on the Leech Lake Reservation, said Charlene Erickson, a records specialist with the sheriff's office.
Cass County Attorney Earl Maus said he would decide soon whether to appeal the decision to the Minnesota Supreme Court.
"It's disappointing from a public safety standpoint," Maus said. "Registration not only helps law enforcement identify possible suspects; often it warns the public about where a predatory offender resides."
Maus also said he's concerned that some Indian offenders could purposefully thwart the state's registration radar by moving first to their home reservation, then moving off the reservation again without informing the BCA.
Neighbors Living Under Different Laws -- Example of State Sex Offender Registry (A court ruling in Minnesota shows that if the Akaka bill passes, then any ethnic Hawaiian who is a sex offender can avoid placing his name on the sex offender registry merely by moving to an address on any Hawaiian homeland, even if he later moves out of the homeland. Example: 7 out of 11 registered sex offenders in Waimanalo live on the Waimanalo Hawaiian Homeland, within easy walking distance of an elementary school and of non-native neighbors; and pay zero property tax).
** The State of New York is using eminent domain powers to take over 52 acres of downtown Niagara Falls on behalf of the Seneca Indian tribe to build a casino; the city will lose tax revenue it formerly received from businesses on this valuable land, since the tribal casino will pay no city or state taxes due to tribal sovereignty. **
New York Newsday, July 26, 2005
State seeking takeover of land for Seneca Nation
By CAROLYN THOMPSON
Associated Press Writer
NIAGARA FALLS, N.Y. -- The state has begun eminent domain proceedings on behalf of the Seneca Indian Nation for control of two dozen downtown acres promised to the tribe as part of its gambling agreement with the state, angering property owners who would lose businesses and homes.
The land would complete the 52-acre "footprint" promised to the Senecas in the 2002 agreement that let them build a casino in Niagara Falls in exchange for giving a percentage of slot machine profits to the state.
The Senecas have bought about half the property, including the former Niagara Falls Convention Center, which they converted to the Seneca Niagara Casino. The remaining parcels include two hotels, a water park and several homes.
The Senecas have floated plans to build two hotels on the land, which would become tax-exempt sovereign territory, but have made no decisions, Seneca Gaming Corp. spokesman Phil Pantano said.
"It could be anything from hotels to maybe office space for personnel," Pantano said. "It will all really be determined by what continues to happen and the casino and surrounding amenities over the next few years."
Although the U.S. Supreme Court recently ruled that municipalities have broad power to bulldoze people's homes and put up shopping malls or other private development to generate tax revenue, no such windfall is foreseen for Niagara Falls, said opponents of the eminent domain process now under way.
"They don't even claim that there's going to be any economic benefit to the city," said John Bartolomei, an attorney and partner in Fallsite, whose newly reopened Fallsville Splash park would close. "The benefit to the city is absolutely none."
A hearing last week required for Empire State Development Corp. to move forward with the acquisition drew harsh criticism and emotional pleas from property owners.
"This is not a piece of property; it's a home," said Trisha Villani, whose 71-year-old mother has lived in her house 50 years. "There's no price you can put on it that can replace that."
Richard Dorado, senior counsel for Empire State Development, said the agency would hire brokers and consultants to help relocate displaced families.
A study, commissioned by USA Niagara Development Corp. on the impact of the 2 1/2-year-old casino, estimated that the 52 acres of land would generate a half a million dollars in property tax if it remained on the city's tax rolls.
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