The Akaka Bill’s Immunity Question

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BY MALIA HILL – When Gov. Linda Lingle announced, with all due flourishing, her newly acquired support for the Akaka Bill, a big part of her new-found appreciation for divisive race-based legislation was in the compromise over criminal immunity that was theoretically being added to the bill.  (I say “theoretically” because–while that language was added to the House version of the Bill–there is no guarantee that it will survive to a final version.)

Lingle was understandably concerned that Native Hawaiians under a new tribal government might be immune from prosecution of criminal activity under state law.  Before anyone starts planning to discover a Native Hawaiian ancestor and set up a counterfeiting ring, I should point out that tribal governments can still prosecute such crimes (and are generally expected to do so).  In short, the question of immunity in a new Native Hawaiian government was a critical one.  So at least that has been addressed, right?


Not so fast.

In addition to the fact that there is no guarantee that the criminal immunity provisions survive to a final version of the Akaka Bill, there is also the fact that the problem doesn’t end with criminal immunity.

Consider this story:

On November 29, 2005, Robert Gutierrez, an employee of the Pueblo of Santa Clara in New Mexico, was driving a car owned by the Pueblo on Pueblo business.   That business took him outside of the tribal boundaries of the Pueblo, into a town in the state of New Mexico.  It was while he was off of tribal land (though still in a tribe-owned car on tribe-business) that Gutierrez made an improper turn into oncoming traffic and caused a car accident.

Peggy Reed and Timothy Reed, a husband and wife who were injured in the accident, sued Gutierrez and the Pueblo for damages arising from their injuries. The Pueblo and Gutierrez didn’t deny their part in the accident–they merely argued that the doctrine of tribal sovereign immunity protected them from the lawsuit.  And sadly for the Reeds, the court agreed, dismissing their lawsuit–a decision that was then upheld by the New Mexico Court of Appeals.  And all based on the concept of tribal sovereign immunity.

How does this relate to the Akaka Bill?  Well, if the bill is passed and Native Hawaiians are provided with the same tribal immunity, it brings an unfair and divisive element to our islands.  If you are crossing the street with your spouse/husband/grandmother, and you’re hit by a Love’s truck doing some deliveries, you can sue Love’s and the driver for your injuries.

That’s how you can recoup the cost of your medical bills, lost pay at work, chronic pain, and so on.  However, under the post-Akaka immunity scenario, if that truck is owned by the Native Hawaiian government and driven by one of their employees, you’re just out of luck.  Tribal sovereign immunity prevents you from being able to sue the Native Hawaiian government for your hospital bills, your Grandmother’s wheelchair, the 3 months of work you missed, or anything else.

These are the kinds of problems we’re speaking of when we warn the people of Hawaii that the Akaka Bill poses a real danger to our state and the spirit of aloha that makes it such a special place to live.





  1. Here’s a webpage analyzing another specific example of jurisdictional conflict over criminal law:

    “Neighbors Living Under Different Laws — Example of State Sex Offender Registry” (How Minnesota court decision would apply here. If a registered child molester decides to move to the Waimanalo Hawaiian Homestead he would then be outside state jurisdiction and could get away with not registering his new address, even though he now lives conveniently close to Blanche Pope elementary school. Actual names, addresses, and property values where registered sex offenders lived in the Waimanalo homestead in 2005):

  2. All of the problems your opinion writers associate with the Akaka bill, including the one above where it is presumed that tribal immunity would threaten non-Hawaiians (non-tribal members etc.), are symptomatic of a Statehood process that was severely flawed in the first place.

    Your opinion writers seem to strain at a nat where the Akaka bill posses a threat to equal protection, while you simultaneously swallow the camel that is Statehood!! It’s my contention that most who post articles on this site are suffering from the same sort of historical revisionism where the federal Constitution is concerned that progressive liberals do. How for example can someone who never stepped foot on the American continent be defined as native American (indigenous peoples of America)? I could point to many problems currently facing the State that could be considered clear indications of a State Government that breaks the law (abuses its power) with impunity. I’ve made the case that the UNEQUAL PROTECTION your writers associate with the Akaka bill, are the direct result of a Statehood process that authored this since with Statehood came the remedial language regarding the so called trust responsibility it claimed over native Hawaiians, in which they are arbitrarily define as the “indigenous people of America.” Refusing somehow to see anything wrong with Statehood is your blind spot. Thus your defense of liberty is not sincere. You guys remind me of the Israelites who had to be “shaken” from their “house and labor” where you have prematurely bound yourself to a system that is evil. “And lo we bring into bondage our sons and our daughters to be servants, and some of our daughters are brought into bondage already: neither is it in our power to redeem them; for other men have our lands and vineyards” (Nehemiah 5: 1-13) A house (article) divided against itself will not stand.

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