BY KENNETH R. CONKLIN, PH.D. — Congress is on vacation for the month of August. Thus one-third of the 113th Congress (8 of its 24 months) has expired, and the perennial Akaka bill has still not been introduced. What’s going on? If a state-recognized Akaka tribe gets federal recognition, what kinds of jurisdictional conflicts would we see in Hawaii as shown by real conflicts now happening with Indian tribes on the mainland?
OHA is building its newest racial registry, Kana’iolowalu. Embarrassed that after a year only 9300 ethnic Hawaiians had signed up, OHA is now dragging more than 100,000 names onto the list, pulling from previous racial registries such as Kau Inoa, Project Ohana, Kamehameha Schools, etc. OHA is doing this without asking those people for permission, even though the previous registries were for the purpose of getting benefits from racial entitlement programs and never included the political affirmations in the new registry such as building a nation and claiming unrelinquished sovereignty. But Census 2010 counted more than 527,000 people claiming to be “Native Hawaiian”, so even if Kana’iolowalu gets 260,000 names (extremely unlikely) it would still be a minority of those eligible by race and a far smaller minority of Hawaii’s people.
Without federal recognition, a state-recognized tribe has limited clout. The huge number of existing Hawaiian racial entitlement programs funded by the state and federal governments might wither or be ruled unconstitutional. 856 grants totaling approximately $322,220,808 were already identified and described on a webpage “For Hawaiians Only” until it went dormant a few years ago.
The main purpose for setting up a state-recognized tribe is to seek federal recognition of it. Regarding Congressional action: federal recognition could come through straightforward passage of an Akaka bill; or through a stealth maneuver whereby the budget for the Department of Interior might suddenly have a clause inserted adding the “Native Hawaiian” tribe onto the list of federally recognized tribes. Both of those strategies have been tried many times in the last 13 years. Regarding executive action: federal recognition could come through a regulatory shuffle in the Bureau of Indian Affairs or Department of Interior; or the President might issue an Executive Order through a posting in the daily Federal Register. 25 CFR 83 is currently undergoing review — this is the portion of the Code of Federal Regulations dealing with the procedure whereby the U.S. Department of Interior grants federal recognition to Indian tribes. Maybe the Akaka tribe could get recognized through stealthy amendments.
Suppose Native Hawaiians are able to create a members-only group that gets federal recognition as an Indian tribe. What would be the consequences for the State of Hawaii, for local businesses, for a million citizens of Hawaii who have no native blood, for ethnic Hawaiians who become members of the tribe, and for ethnic Hawaiians who choose not to become members? There are numerous webpages on those topics. But instead of merely wondering and speculating, we can look at what’s actually happening in the 48 states on the mainland.
In December 2011 I pulled together 13 news reports from the final 13 weeks of that year from various places on the mainland. For each situation I described the facts and cited a link to the full news report. The topics as made relevant to Hawaii were:
• Promises or contracts made by the Hawaiian tribe cannot be enforced because the tribe cannot be sued on account of tribal sovereignty;
• Counties cannot assess taxes on tribal property nor use foreclosure to collect taxes;
• Counties cannot assess or collect taxes on gasoline purchased or used on Hawaiian tribe lands which is used or purchased on non-tribal lands;
• A Hawaiian tribe could purchase land and have the Bureau of Indian Affairs put it into federal land trust, thereby removing all tribal businesses on that land from local taxation, and neither the state nor counties can stop the BIA from doing so [news reports concerning two different locations and tribes];
• If a member of the Hawaiian tribe is raped or beaten up by a spouse or friend in a house on tribal land, should a tribal court have jurisdiction to put the spouse or friend on trial and send him to jail even though that spouse or friend has no Hawaiian native blood or is not a tribal member?
• A Hawaiian tribe, either through neglect or intentional policy, could allow its lands to become a sanctuary for criminal activity which state and county governments would be powerless to stop;
• Should the Hawaiian tribe be given a large tract of undeveloped land because the tribe claims to be the rightful owner and/or because it promises to be a good steward of the land?
• A state-recognized tribe might spend many years unsuccessfully seeking federal recognition, and is likely to break promises and engage in corrupt practices while seeking federal recognition or a casino.;
• State recognition of a Hawaiian tribe could lead to federal recognition with unexpected consequences including casinos.;
• A Hawaiian tribe might have priority over non-tribal businesses when a casino is to be created; and such a priority if enacted by a state legislature might be unconstitutional.;
• Once the Hawaiian tribe has published its roll of members and has been recognized, the tribal council can enroll or disenroll people for no good reason, and sovereignty ensures no state or federal court can interfere.;
• Members of the Hawaiian tribe have no right to freedom of speech.; The tribal council might kick out of the tribe dissident members who support a different slate of candidates for the next tribal election, thus “fixing” the election, and the dissidents have no way to appeal their disenrollment except in a tribal court controlled by the existing council.
This year I decided that instead of looking at a wide range of topics from a three month period, I would select news reports about a single topic from a single week. So at the end of July I put the following phrase into Google, including the quote marks: “tribal jurisdiction”; and I narrowed the search to the most recent week. “Tribal jurisdiction” is especially relevant to Hawaii because of the very large number of parcels of land scattered everywhere throughout the eight major Hawaiian islands that would likely be included in the land base of an Akaka tribe. There would be constant jurisdictional conflicts between the tribe and the neighboring lands owned by federal, state, and county governments and private residents. The checkerboard scattering of “Native Hawaiian” tribal lands throughout rural and urban areas in Hawaii is very different from other states where a tribe most likely has a single reservation which is most likely located in a remote place.
Here are a few mainland jurisdictional controversies with tribes, reported during the last week of July, 2013 as interpreted for relevance to Hawaii if the Akaka bill or an Executive Order creates a federally recognized Akaka tribe.
• It is an unsettled question currently being litigated, whether a Native Hawaiian tribal court has jurisdiction over a lawsuit for civil damages brought by the family of a tribal member who was killed or injured by a non-Native Hawaiian driver in a traffic accident on a state highway running through tribal lands. [Arizona]
• Native Hawaiian police can arrest and imprison someone who says misleading or slanderous things against a member of the tribal council. [Great Falls, MT]
• If a member of the Native Hawaiian tribe commits negligent homicide on non-tribal lands and then returns to his home on tribal lands, can a state sheriff go onto the tribal lands to arrest him, or are tribal lands a pu’uhonua or refuge where Native Hawaiian criminals cannot be arrested by the state? [Sious Falls, SD]
• When a 2-year-old toddler is raped and killed on Native Hawaiian lands, state and county police must stay out of it because of tribal sovereignty; and tribal police lack jurisdiction according to federal law because of the crime’s seriousness; so the FBI must handle the case. [Oklahoma City, OK]
• State and county governments cannot assess taxes on Native Hawaiian tribal property located on tribal land, and cannot assess taxes on personal property nor property owned by a private non-Hawaiian limited liability corporation when leased by the Native Hawaiian tribe for use on tribal land [Mescalero, NM]
• A Native Hawaiian tribe could have its own laws regarding sales and taxation of liquor, tobacco, marijuana, gasoline — laws in conflict with federal, state, and county laws governing neighboring lands across the street. [Sioux Falls, SD]
• Federal recognition of an Indian tribe is a complex, expensive, controversial, process; and the rules are being changed. How can local communities and wannabe tribes, seeking recognition, cope? [Solvang, CA]
This essay is a short summary of a much more detailed webpage which includes documentation for all the main points and links to the news reports. See https://tinyurl.com/kjoedjr