Site hosted by Angelfire.com: Build your free website today!

Neighbors Living Under Different Laws -- Example of State Sex Offender Registry


** NOTE FROM KEN CONKLIN: This webpage was originally published August 1, 2005. Some of the names, addresses, and house values in Waimanalo from 2005 might now be obsolete, but the concepts remain valid. An addendum at the bottom, added on July 24, 2011, shows that Congress has responded to the Minnesota court decision, but the response has been ineffective. Many tribes continue to invoke tribal sovereignty to resist the demands to comply with state laws regarding sex offender registries. A provision in the Akaka bill, inserted in 2009 and remaining in the current version of the bill, would grant to officers and members of the Akaka tribe immunity from state and local laws, presumably including the Hawaii law requiring sex offenders to appear on the public sex offender registry.

Mention of "sex" is what grabs attention. The bottom half of this essay is devoted to the State of Hawai'i sex offender registry, and why a court ruling in Minnesota might make that registry useless for keeping track of more than half the sex offenders in Waimanalo (and presumably many other areas) if the Akaka bill passes. Names and addresses of sex offenders, and assessed valuations of their houses on which they pay no taxes (Hawaiian homeland), will be provided below. But first, some background information about jurisdictional disputes between tribes and the communities near them; and an explanation of how the court ruling in Minnesota provides a loophole for registered sex offenders who are members of the future Akaka tribe to escape the requirement to be on the sex offender registry. In effect, Waimanalo Hawaiian Homeland (and every other Hawaiian homeland) would become a pu'uhonua moehewa -- a refuge where sex offenders could go to live anonymously, unknown to their non-native neighbors just a block or two away, and conveniently close to an elementary school.

Opponents of the Akaka bill predict dire consequences for Hawai'i's people if the bill is passed. Supporters of the bill say there's no way to predict what will happen, because the bill is silent on which lands will be transferred to the tribe or what powers the "governing entity" (tribal council) will have.

The Akaka bill is a pig in a poke. That in itself is reason to be suspicious. When navigating uncharted waters, good advice is to hope for the best but plan for and expect the worst. Who in his right mind would buy a house without knowing where it is located, how many bedrooms it has, and how far a walk it is to the outhouse?

Supporters of the bill say it's merely about justice and fairness. Its purpose is merely to give "Native Hawaiians" the same recognition and rights already enjoyed by America's other two indigenous groups, American Indians and Native Alaskans. But of course there are not just three groups of "indigenous people" in America. There are more than 562 recognized tribes, and hundreds more Indian groups seeking federal recognition -- some unsuccessfully for dozens of years. Most Indians do not belong to any tribe, and would not be eligible to join one due to blood quantum and other requirements. By contrast, the Akaka bill says anyone with even one drop of Hawaiian native blood is automatically eligible to join the tribe.

One thing we can be sure of -- those pushing the Akaka bill fully expect that the Akaka tribe will get at least as much political power and legal authority as other tribes. They're already talking about "parity" with the genuine Indian tribes. If the Akaka tribe is recognized, there will then be followup legislation to increase the tribe's power, and perhaps lawsuits to enforce demands for "equal treatment" with other tribes, including gambling casinos. That's why it's very reasonable to look at existing Indian tribes and their relationships with states and local communities, to see what's likely to happen in Hawai'i.

The most obvious source of conflict is neighbors living under different legal systems. If a tribe has its reservation somewhere out in the desert far away from non-Indian populations, there won't be much conflict. But if a tribal reservation is next door to a town where a majority of residents are not tribal members, there will be constant struggles over boundaries, land, water, zoning regulations, fishing rights, civil and criminal law. Whose laws apply? Who has authority to enforce traffic laws, perform searches, make arrests, or enforce contracts -- the police and courts of the tribe, the municipality, the state, or the federal government?

Tribes have sovereign immunity. That means they cannot be sued for breach of contract or for harm they may do to neighbors. If the tribal driver of a tribal pickup truck is negligent and causes damage and injury, the victim probably cannot sue for damages, especially if the accident happens on tribal land. A business having a contract to deliver goods and services to a tribe had best demand cash on delivery, because there will be no recourse if the tribe fails to pay the bill.

Numerous horror stories about civil and criminal jurisdictional disputes are the reasons why the Western States' Sheriffs' Association passed a resolution supporting legislation to study sovereign immunity of Indian tribes in relation to local and state governments.
http://www.angelfire.com/hi5/bigfiles/sheriffstelljurisdprobs.pdf

For numerous examples and analysis of conflict between tribes and their non-Indian neighbors, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/tribeimpactbizandcommunity.html

In Hawai'i, of course, ethnic Hawaiians are living throughout all neighborhoods and have a high rate of intermarriage. The Akaka tribal lands would certainly include the 69 "Hawaiian homelands" scattered among all the islands. Some of these "homelands" have no homes, and many of those that do have homes can also be used for businesses. The tribal lands would additionally include perhaps forty percent of all the lands of Hawai'i, scattered throughout all parts of all the islands -- the activists insist that all the "ceded lands" (including 95% of the lands held by the State of Hawai'i) are communally owned by ethnic Hawaiians as a group. That's why OHA paid for students at the UH Center for Hawaiian Studies to develop an inventory of the ceded lands. Tribal businesses on tribal lands are generally free from state and local taxes and regulations.

Then there are the lands owned by Bishop Estate (Kamehameha School) -- about 9% of all the land of Hawai'i, including such cash-cows as Royal Hawaiian Shopping Center in Waikiki and Windward Mall in Kane'ohe. If the Akaka bill passes, Kamehameha Schools will probably re-incorporate itself under the tribal government so that its tax exemption and racially exclusionary admissions policy can no longer be challenged; and so that its businesses will also become tax-exempt and able to engage in racial discrimination just like the school.

Now, let's take a look at one very small but emotionally gripping example of the difficulties of having different laws for neighbors living close together.

Seven out of the eleven registered sex offenders in Waimanalo live in the Waimanalo Hawaiian Homeland. That homeland is virtually indistinguishable from the rest of the suburban housing at the Makapu'u end of Waimanalo, just a block or two from Blanche Pope Elementary School (easy pickings for child molesters). Right across the street from property-tax-exempt "homeland" houses are ordinary fee-simple houses owned by people with no Hawaiian native ancestry, who pay huge property tax bills to provide municipal services to everyone including those getting a free ride. Names and addresses of sex offenders, and assessed valuations of their houses on which they pay no taxes, will be provided below.

If the Akaka bill passes, then according to a court decision handed down in July 2005 in Minnesota, convicted child molesters living in the Hawaiian homeland would not need to register. Furthermore, any ethnic Hawaiian anywhere in the world who is convicted of a sex crime and ordered to register could avoid registration simply by moving into a home in the homestead (any homestead, such as Wai'anae, Papakolea, Kalawahine Streamside, Anahola, etc).

Even if he does not have the 50% blood quantum needed to obtain a homestead lease; any ethnic Hawaiian sex-offender who already belongs to (or decides to join) the Akaka tribe (no minimum blood quantum) could simply move into a home with a friend or relative, or even rent a room and declare it to be his official residence, and thereby escape the public humiliation and scrutiny of having his name, face, and address published in the state's sex-offender registry.

Here are excerpts from an article published on July 27, 2005 in the Grand Forks Herald newspaper, serving parts of Minnesota and North Dakota. The article is entitled: "Appeals Court ruling deals blow to offender registry law."

http://www.grandforks.com/mld/grandforks/news/12234488.htm

"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. ... State courts are increasingly recognizing Indian tribes as separate nations, with sovereign jurisdiction over the regulation of their citizens ... The case involved Peter Jones, 31, of Cass Lake, who was convicted in 1996 ... 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 argued that because he was an Indian living on his tribe's reservation, the state lacked jurisdiction to punish him for failing to register .... District Judge John Smith agreed and dismissed the case earlier this year. ... On Tuesday, a three-judge appeals panel affirmed that in a seven-page opinion. ... 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 ... 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."

The search engine for the Hawai'i Sex Offenders Registry can be found at http://sexoffenders.hawaii.gov/search.jsp?

There are eleven registered sex offenders living in Waimanalo. At least seven of them are living on the Waimanalo Hawaiian Homeland, as can be confirmed by the address, by the fact that they own or live in a house with high assessed value but zero property tax; and all the owners on their portion of the street are listed as "lessee" rather than owner.

The following information was obtained from both the sex offender registry and the Honolulu property tax records on July 29, 2005. It is interesting that there are two sex offenders living only a few houses apart on Nakini St., and also there are two sex offenders with the same last name on different streets but near each other.

Name of Sex Offender: Address Last Updated: Offender's Street Address: Zip House owner name (Honolulu Property Records) Tax Map Key 2005 Assessed Values as of October 1, 2004 (remember that an assessed value, especially for a building, is usually well below actual market value and is estimated from actual sale prices for similar buildings 2-3 years ago.

AFONG,JOSEPH T 05/13/2005
41-247 KAUHOLOKAHIKI ST 96795
AFONG,JOSEPH JR
TMK 410370450000
Market Land Value $355,100
Land Exemption $355,100
Net Taxable Land Value $0
Market Building Value $107,100
Building Exemption $107,100
Net Taxable Building Value $0
Total Taxable Value $0

AFONG,WAYNE T 07/22/2005
41-764 ALA KOA ST 96795
AFONG,MARY A
TMK 410160560000
Market Land Value $461,900
Land Exemption $461,900
Net Taxable Land Value $0
Market Building Value $103,000
Building Exemption $103,000
Net Taxable Building Value $0
Total Taxable Value $0

BREZEE,KEITH D 05/06/2005
41-165 NAKINI ST 96795
BREZEE,LAWRENCE R
TMK 410290620000
Market Land Value $377,300
Land Exemption $377,300
Net Taxable Land Value $0
Market Building Value $94,100
Building Exemption $94,100
Net Taxable Building Value $0
Total Taxable Value $0

EMOND,ALFRED G 07/26/2005
41-248 KAAIAI STREET 96795
EMOND,ALFRED G III
TMK410310100000
Market Land Value $386,900
Land Exemption $386,900
Net Taxable Land Value $0
Market Building Value $78,100
Building Exemption $78,100
Net Taxable Building Value $0
Total Taxable Value $0

KAUKINI,WILLIAM N 05/06/2005
41-189 NAKINI ST 96795
KAUKINI,WILLIAM
TMK410290500000
Market Land Value $396,500
Land Exemption $396,500
Net Taxable Land Value $0
Market Building Value $99,900
Building Exemption $99,900
Net Taxable Building Value $0
Total Taxable Value $0

OISHI,RUSSELL C 07/27/2005
41-920 KALANIANAOLE HWY 96795
OISHI,DOLORES M
TMK 410200480000
Market Land Value $432,100
Land Exemption $432,100
Net Taxable Land Value $0
Market Building Value $283,100
Building Exemption $283,100
Net Taxable Building Value $0
Total Taxable Value $0

KAHALEWAI,RICHARD G 06/24/2005
41-209 ILAUHOLE ST 15 96795

** When I looked for that address in the Honolulu property list, I was unable to find it. Either the property list has an error, or else the sex offender gave a false address. However, that street is in the Hawaiian homelands. While looking at the list of houses on that street I stumbled across the house of a very famous person who would be an immediate neighbor. Robin Danner is head of the Council for Native Hawaiian Advancement, an umbrella organization of all the large, wealthy Hawaiian instututions who come together to lobby for the Akaka bill and to inform members of numerous government handouts for which they may apply. A total tax exemption for a house and land worth around half a million dollars is indeed a pretty good government handout already! Dear readers, how much is YOUR property tax half-year bill just recently mailed out? **

TMK 410370550000
Address 41-212 ILAUHOLE ST
owner DANNER,ROBIN, lessee
TMK410370550000
Market Land Value $353,000
Land Exemption $353,000
Net Taxable Land Value $0
Market Building Value $113,700
Building Exemption $113,700
Total Taxable Value $0

-------------

Another example of conflict between tribes and non-Indian communities is provided by an article published July 26, 2005 in New York Newsday, serving upstate New York.

---------

http://www.nynewsday.com/news/local/wire/newyork/ny-bc-ny--senecas-eminentdo0726jul26,0,1626982,print.story?coll=ny-region-apnewyork

State seeking takeover of land for Seneca Nation

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.

------------

Tribes and their non-Indian neighbors live under different laws. For numerous examples and analysis of conflict resulting from those different laws, see:

http://www.angelfire.com/hi2/hawaiiansovereignty/tribeimpactbizandcommunity.html


==============

** UPDATE JULY 24, 2011, showing that many Indian tribes are delaying and refusing to comply with a requirement to obey state laws mandating sex offender registries, five years after Congress imposed the requirement upon them. The Akaka bill at the end of 2010, and also during the 112th Congress, includes language giving officers and members of the Akaka tribe immunity from prosecution under the state's criminal laws. This is only one particular example of thousands of bureaucratic nightmares awaiting the State of Hawaii if the Akaka bill passes.

http://turtletalk.wordpress.com/2011/07/14/congressional-delegation-to-doj-of-authority-to-abrogate-tribal-sovereignty/
[Turtle Talk is published by a group of zealous defenders of sovereignty rights for Indian tribes]

Turtle Talk, July 14, 2011

Congressional Delegation to DOJ of Authority to Abrogate Tribal Sovereignty?

The Attorney General is beginning the process to determine whether “tribe[s] e ha[ve] not substantially implemented the requirements of this subtitle and [are] not likely to become capable of doing so within a reasonable amount of time” under 42 U.S.C. § 16927(a)(2)(C).

What this means is that tribes that opted-in a few years back into the federal sex offender registry program requirements that are not in compliance within a “reasonable” time or “are not likely to” be in compliance, may have their sovereignty over this question shunted off to state governments at the Attorney General‘s discretion. Seems like it is time to pay serious attention to the notices coming out of the DOJ about this issue.

Here is the tribal consultation announcement.[copied below]
http://www.ojp.usdoj.gov/smart/pdfs/consultation-announcement.pdf

And the SMART website [welcome page copied below]
http://www.ojp.usdoj.gov/smart/index.htm

** Tribal consultation announcement:

U.S. DEPARTMENT OF JUSTICE CONSULTATION SESSIONS ON SORNA IMPLEMENTATION
May ‐ June 2011

The Adam Walsh Child Protection and Safety Act was signed into law on July 27, 2006. Title I of this act, the Sex Offender Registration and Notification Act 42 U.S.C. 16901 et. seq (SORNA), included the option for certain federally recognized Indian Tribes to function as sex offender registration and notification jurisdictions. Federal law requires that tribes “opt in” to participate in SORNA and implement the minimum standards required by SORNA for sex offender registration and notification. Pursuant to SORNA, if the United States Attorney General determines that a tribe has not substantially implemented the requirements of SORNA by the implementation deadline of July 27, 2011, and is not likely to become capable of doing so within a reasonable amount of time, the tribe’s sex offender registration and notification responsibilities will be delegated to the state in which the tribe is located. 42 USC § 16927 (a)(2)(C). The Department of Justice would like to consult with tribal nations regarding this delegation procedure. The Department’s Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART), created to assist jurisdictions with implementation of SORNA, convened a pre‐consultation meeting with tribal representatives to begin discussion of a process to follow prior to any delegation of registration and notification responsibilities to a state.

In short, there is no “automatic” delegation. Those tribes that cannot substantially implement SORNA by the deadline may request that the SMART Office consider whether or not the tribe will become capable of doing so in a reasonable amount of time, and therefore become eligible for additional time to implement SORNA. However, if a SORNA tribe does not submit a substantial implementation package and does not make a request for a “reasonableness” determination, the delegation process that will be discussed at these consultations will have to be initiated. This process, which will be discussed further at these consultations, will include additional outreach to the tribal leader directly from the Department of Justice, and through regional tribal organizations, tribal liaisons in their district United States Attorneys’ Office, BIA representatives if applicable, and other Justice Department contacts. This outreach effort will be followed by an offer to the tribal leader to meet with a Justice Department official to discuss SORNA implementation options for the tribe to and to ascertain and overcome any obstacles facing the tribe in its attempt to substantially implement SORNA. Further, DOJ will enlist the appropriate state representatives to engage in conversations with all the relevant parties.

During this consultation period, the SMART Office will also discuss the impact of the Tribal Law and Order Act (TLOA) on SORNA implementation. The SMART Office will explain what has been called the BOP fix: 18 USC §4042, “Notice of Release of Prisoners,” was amended by TLOA to ensure that tribes are notified upon release of sex offenders returning to live on tribal lands. TLOA SEC. 261 was amended by inserting “tribal’ into the pertinent subsections of 18 USC §4042 (a) (4), (b) (1), C (1) (A) & (B). Another TLOA provision that will impact tribal SORNA implementation is Sec. 234. Tribal Court Sentencing Authority (codified at 25 USC § 1302), which permits tribes to expand their sentencing from 1 to 3 years. SORNA implementing tribes that elect to expand their sentencing to more than one year will need to include a SORNA compliant tiering method for tribal offenders who have committed sex offenses on their tribal land, as well as for any other registered sex offenders who have been convicted by tribes that also have sentenced offenders to more than one year. Finally, TLOA also addressed the tribes’ need for access to NCIC, the National Crime Information Center (see TLOA SEC. 233 amending 28 USC § 534), by permitting access to NCIC for tribes. The SMART Office continues to work on full NCIC access/input capabilities for eligible tribes, as this capability is an essential component of a SORNA compliant sex offender registration and notification program.

Detailed Consultation Participation Information

To afford tribes an adequate opportunity to comment and discuss these suggested procedures and to provide any additional input about this process with the Department of Justice, the SMART Office will be holding 2 in person consultation sessions entitled Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) and Tribal Nations Consultation Session: Consultation on the process for delegation of sex offender registration and notification responsibilities pursuant to the Sex Offender Registration and Notification Act (SORNA) and impact of the Tribal Law and Order Act (TLOA) on implementation of SORNA. The first consultation was held as part of the Tribal Justice, Safety and Wellness (TJS&W) Conference May 10‐12, 2011 in Scottsdale, Arizona. The second in‐person consultation will be held June 14, 2011, 6:00 – 8:00 p.m., as part of NCAI’s Midyear Conference being held in Milwaukee, Wisconsin from June 13‐16, 2011, at the Frontier Airlines Center. Please visit the NCAI Midyear Conference website at http://www.ncai.org/Home.580.0.html to register for the upcoming session and for additional information.

There will be an additional opportunity for consultation via teleconferencing on June 30, 2011, from 2:00 p.m. to 4:00 p.m. EST. Those wishing to participate must RSVP by June 27, 2011. To RSVP for the teleconference please email: Rebecca.Jeyachandran@ojp.usdoj.gov You may also fax your RSVP to Rebecca Jeyachandran at fax# 202‐354‐4200. In any RSVP please include your name and title, tribal affiliation (if any), telephone number, fax number and email address. If you have any questions regarding the teleconference please contact Rebecca Jeyachandran at 202‐616‐3798. The call ‐in number will be provided closer to the call to all those who RSVP

SMART website [welcome page copied below]

** Welcome to the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) site. The SMART Office was authorized in the Adam Walsh Child Protection and Safety Act of 2006, which was signed into law on July 27, 2006. The responsibilities of the SMART Office include providing jurisdictions with guidance regarding the implementation of the Adam Walsh Act, and providing technical assistance to the states, territories, Indian tribes, local governments, and to public and private organizations. The SMART Office also tracks important legislative and legal developments related to sex offenders and administers grant programs related to the registration, notification, and management of sex offenders.


=================

Send comments or questions to:
Ken_Conklin@yahoo.com

SEE MORE INFORMATION ABOUT THE AKAKA BILL

or

SEE WEBPAGES ABOUT HAWAIIAN SOVEREIGNTY ISSUES IN ADDITION TO THE AKAKA BILL