(c) Copyright December 15, 2013 by
Kenneth R. Conklin, Ph.D.
All rights reserved
** NOTE: This webpage is lengthy and has numerous detailed footnotes. A summary of 1500 words, with no footnotes, was published on Hawaii Political Info on Sunday December 15, 2013. See "Want a Gambling Casino in Hawaii? Get Recognition for a Hawaiian Tribe." at
http://www.hawaiipoliticalinfo.org/node/7066
For many years there have been bills in the Hawaii legislature to authorize gambling. There has been heavy lobbying and advertising by mainland companies that make huge profits from manufacturing gambling equipment and operating gambling facilities with slot machines, poker, craps, roulette, keno, sports betting, etc.
The Hawaii Coalition Against Legalized Gambling has battled successfully against such legislation (see notes), with help from local churches and mainland anti-gambling groups who have seen how gambling worsens social problems such as crime, homelessness, poverty, etc. But if a Hawaiian tribe is created and gets official state or federal recognition, the odds strongly favor that it will sponsor all forms of gambling including casinos. This essay will explain why.
The Hawaii Coalition Against Legalized Gambling wants to protect its alliances on the single issue of opposing gambling. But HCALG has refused to oppose federal recognition through the Akaka bill or administrative procedures, or state recognition through the Kau Inoa or Kana'iolowalu racial registries. That's because HCALG fears to offend some of its politically liberal allies who support tribal recognition, especially church organizations like the United Church of Christ, the Catholic Diocese of Honolulu, United Methodist Church, the Quakers, Mormons, and several Buddhist groups. That strategy of appeasement might prove to be as shortsighted as the decision of a child to get into the car of a friendly man who offers her candy. The most politically powerful push for gambling will come from creating a Hawaiian tribe if it gets official recognition from the State of Hawaii and especially if it gets federal recognition as an Indian tribe.
It seems likely that the Hawaii legislature will soon give formal recognition to a Native Hawaiian tribe now being created through the state-sponsored Kana'iolowalu racial registry, successor to the Kau Inoa registry. Although the Akaka bill to get federal recognition for a Hawaiian tribe might not be introduced in the current 113th Congress and seems very unlikely to pass even if offered, there are powerful politicians working behind the scenes to get federal recognition through administrative procedures in the Bureau of Indian Affairs or the Department of Interior, or through a Presidential Executive Order. As a Senator, Barack Obama spoke in favor of the Akaka bill; and repeated his support for it several times during the 2008 campaign and since then. The monthly newspaper of the Office of Hawaiian Affairs has bragged that behind-the-scenes efforts are underway with the Obama administration. The Honolulu Star-Advertiser has reported on them and editorialized in favor of them. (See notes)
The Indian Gaming Regulatory Act was passed by Congress in 1988, and amended since then, to regulate how Indian tribes conduct gambling operations. IGRA also gives tribes preferential treatment over state and local governments on issues such as who can have a casino and where it can be located. One consequence of IGRA is that if the State of Hawaii or any one of its five counties (including Kalawao County created to administer the leprosy colony) allows any form of legalized gambling -- even so minor as issuing a license for a church bingo game -- then a Hawaiian tribe would be entitled to a full-blown gambling casino. The most likely locations for casinos in Hawaii would be on lands belonging to ethnic Hawaiian institutions likely to become part of the Akaka tribe; such as the 200,000 acres scattered throughout Hawaii controlled by the Department of Hawaiian Homelands; the 363,000 acres controlled by Kamehameha Schools (especially its commercial holdings such as Royal Hawaiian Shopping Center, Windward Mall, Waimea Valley); the 30,000 acres owned by OHA (including its recently acquired lands in Kaka'ako makai), or Kaho'olawe Island. The last several sessions of the legislature have seen numerous bills to put casinos on DHHL lands, despite current laws prohibiting legalized gambling in Hawaii. (See notes pertaining to HCALG)
In recent years there has been a large increase in the number of Indian tribes that have obtained federal recognition. One of the main reasons a tribe seeks federal recognition is to enable the federal government to take land into trust for the tribe. The land taken into trust could be inside the boundaries of the tribe's historical reservation; or it could be land many miles away or even in another state, which the tribe purchases specifically for the purpose of operating businesses including casinos.
When land is taken into trust for a tribe it becomes federal land. The supremacy clause of the Constitution makes state and local governments unable to tax or regulate federal lands. The result is that tribal businesses on tribal lands, including gambling casinos, liquor stores, gas stations, tobacco shops, grocery stores, etc., operate free from state or local taxes; free from zoning regulations, environmental laws, and labor laws; free from paying minimum wage or workers' compensation for injuries, etc. Tribes can and do spend large amounts of casino profits to lobby the legislature to pass laws favorable to them, and spend large amounts of money contributing to political campaign funds and advertising for favored candidates, without regard to campaign spending laws -- because tribes have sovereignty putting them outside the reach of state and local laws.
The Akaka bill was aggressively pursued in Congress for 13 years, from 2000 through 2012. There were numerous versions of the bill, including one year when three different versions were introduced during a period of a few months. From the time the U.S. Senate Indian Affairs Committee was created, through 2012, Hawaii was the only state that had both of its Senators as members. That's a major expenditure of political capital for a state where there are no Indian tribes, because each Senator is only allowed to serve on a small number of committees. Senators Akaka and Inouye not only were members -- each of them also served as Chairman of the committee in various years. The reason they spent their careers on that committee is simple. Every time a bill came through the committee to provide federal benefits for all federally recognized tribes for housing, education, healthcare, etc., Akaka and Inouye inserted the phrase "and Native Hawaiians" in order to bring home the pork. Hawaii's economy and businesses became addicted to the annual infusion of hundreds of millions of federal dollars for "Native Hawaiian" programs. Those programs were challenged by civil rights lawsuits claiming they are illegal because they are race-based. The best legal defense would be to create a federally recognized Indian tribe for ethnic Hawaiians, since tribes are allowed to engage in racial discrimination.
With Akaka and Inouye having such lengthy experience and expertise on Indian legislation, why were there so many different versions of the Akaka bill? It might seem they didn't know what they were doing. But the opposite is true. They kept changing the bill to grab as much power as possible for the Hawaiian tribe while nevertheless including restrictions to satisfy the objections of Senators from other states where there were tribes that might be hurt by a federally recognized Hawaiian tribe.
The most obvious damage to mainland tribes from a Hawaiian tribe is the fact that the Hawaiian tribe would be larger than any genuine tribe. According to Census 2010 there were 527,000 ethnic Hawaiians in the U.S., all of whom would be eligible to join the tribe. A huge Hawaiian tribe could easily shove aside the mainland tribes in competition for a limited pot of federal dollars allocated to Indian programs. To reassure the mainland tribes that would not happen, many versions of the Akaka bill included language prohibiting the Hawaiian tribe from being eligible for any general DOI/BIA programs routinely available to all Indian tribes; so the Akaka tribe would need to get its federal funding from special appropriations.
Another issue that worried the mainland tribes is that a Hawaiian tribe would set up gambling casinos competing against them. The Akaka bill has an extremely interesting history on the topic of gambling casinos. As the years went by the Akaka bill was rewritten with stronger and stronger language to prohibit the Hawaiian tribe from engaging in gambling. (See notes) One year the bill had language which Akaka/Inouye assured their colleagues would prevent the Hawaiian tribe from having casinos. But when the bill was discussed in the Indian Affairs Committee, some Senators said the language was not strong enough. As a result the bill was amended in committee to strengthen that language before the committee would agree to pass it. Surely Akaka/Inouye, with many years on that committee, realized that the original language in the bill had loopholes. They tried to sneak it past their colleagues but were found out and forced to strengthen the language. In Hawaii the news media let the public believe the reason for this topic getting so much attention in Congress is that Senators from other states just wanted to be sure they were protecting Hawaii's people against having gambling casinos in Hawaii. How sweet of them! But in reality those Senators were well-justified in worrying that a federally recognized Hawaiian tribe could buy land in their own mainland states and build casinos that would compete against their own tribes.
The most recent, September 2012 legacy version of the Akaka bill has zero protection against gambling operations by a Hawaiian tribe. On the contrary, it grants the Hawaiian tribe the same rights as all other tribes, and specifically says the Hawaiian tribe will be governed by the Indian Gaming Regulatory Act. This version of the Akaka bill passed the Indian Affairs Committee in September 2012, with Akaka as Chairman of the Committee and Inouye as a member. It's the version of the bill they both wanted for many years and were finally able to push through. It actually gave the Hawaiian tribe special advantages over any and all other tribes that have been recognized after 1934, by providing a "Carcieri fix" specially for the Hawaiian tribe, allowing it to put land into trust even though all other tribes recognized after 1934 are currently prohibited from doing so because of a 2009 Supreme Court decision in Carcieri v. Salazar. (See notes)
Pushing a bill through Congress to provide federal recognition for an Indian tribe is not the only way for a tribe to get recognition. In fact, it's not the way most tribes got recognized. The usual process is to submit an application to the Bureau of Indian Affairs and Department of Interior, accompanied by proof that the "tribe" satisfies seven mandatory criteria under 25 CFR 83.7. These are technical, legalistically-worded criteria that describe the common-sense concept of what a tribe is. All seven requirements must be satisfied. Many tribes have waited for more than a decade to get approval, because the paperwork requirements are onerous; and many have been rejected when even a single criterion is not met.
It's very clear that ethnic Hawaiians fail at least three of the seven requirements. They have not been identified as an Indian entity on a continuous basis since 1900; the predominant portion of ethnic Hawaiians do not comprise a distinct community that has existed as a separate, identifiable community from the time of European contact until the present; and ethnic Hawaiians have not maintained a political entity that has exercised significant influence or authority over its members as an autonomous entity from European contact until the present.
Many Indian groups have tried to get recognition in recent years to get a casino. But so many have failed the seven mandatory criteria or have been frustrated by paperwork and bureaucratic delays, that the Department of Interior has been conducting a review of 25 CFR 83.7 and gathering public comments with a view toward easing the requirements and simplifying the process (see notes). Undoubtedly there are OHA lobbyists burrowing into the bureaucracy in hopes of revising the criteria and the process to make it easier for themselves to get recognition.
But there are other ways of getting federal recognition for a Hawaiian tribe even without a bill in Congress and without going through the customary bureaucratic process. If a Hawaiian tribe gets recognition through some sort of administrative hocus-pocus or Executive Order, it would immediately have all the rights of a federally recognized tribe with none of the restrictions on funding or gambling that were previously included in various versions of the Akaka bill. On the other hand, a future Republican President could issue a new Executive Order rescinding and undoing what was done. But once a tribe has been created and has gathered power to itself for a few years, it would be very hard to dismantle. Medicare and Social Security are so deeply entrenched they will never be abolished. Even the newly created Obamacare will be hard for a future Republican President and Congress to dismantle after a few years.
Here's an example of how a Hawaiian tribe might get federally recognized without any Akaka bill, in a way that would have a superficial appearance of legitimacy. The Hawaiian Homes Commission Act of 1920 (introduced 1920, passed 1921) established what might be regarded as a "reservation" with 203,500 acres of land and a "tribe" consisting of all people with at least 50% Hawaiian native blood. In the Hawaii Admissions Act (statehood act) of 1959, Hawaii agreed to take over responsibility for the Hawaiian Homelands, subject to oversight by the federal government. In view of recent difficulties with local administration of the Department of Hawaiian Homelands, as disclosed in a series of investigative reports in the Honolulu Star-Advertiser, and a successful lawsuit demanding compensation for about 3,000 homestead applicants denied leases for decades due to bureaucratic and financial mismanagement, the federal government might assert its rights under HHCA to supervise the program. Perhaps the Obama administration might simply federalize DHHL and declare that it is a federally recognized tribe. Such an Executive Order might even state that because the Hawaiian Homes Commission Act passed Congress and was signed into law in 1921, the Hawaiian tribe has been federally recognized since 1921 and therefore qualifies to have land taken into trust regardless of the Carcieri decision. The President might simply issue an Executive Order granting federal recognition to DHHL with its 50% blood requirement; or to the larger group of all ethnic Hawaiians with at least one drop of Hawaiian native blood whose names will have been certified by the Kana'iolowalu racial registry process; or even to the much larger group of all 527,000 ethnic Hawaiians who checked the box for "Native Hawaiian" in Census 2010.
Obama has developed a reputation for unilaterally changing laws passed by Congress, or creating new laws where there were none. When General Motors went broke he took over the company, fired top managers and appointed new ones, violated well-established procedures of the bankruptcy law by rewarding the company's labor union members while giving nothing to the bondholders, and forced the company to put on the market a poorly designed electric car few consumers wanted despite its heavily subsidized price. The Constitution requires the President to "take care that the laws be faithfully executed." But Obama has delayed portions of the Affordable Care Act; selectively declined to enforce deportation against people who illegally entered the U.S. as small children when brought by their illegal immigrant parents; and selectively declined to defend in court the Defense of Marriage Act. When the Senate refused to confirm his appointments to the National Labor Relations Board, Obama abused his Constitutional power to make "recess appointments" even though the Senate was not in recess but only away for a short period and continued to hold pro forma sessions precisely to make clear they were not in recess. Clearly, this arrogant man will do whatever he thinks he can get away with, and will not hesitate to issue an Executive Order to give federal recognition to a Hawaiian tribe unless pressure is brought to bear against him by people who are his allies or groups he considers worthy recipients of his benevolent autocracy.
One group Obama seems eager to please is the Indian tribes. President Bush had refused to sign the United Nations Declaration on the Rights of Indigenous Peoples because of concerns that it could undermine the sovereignty of the U.S. President Obama signed it. Obama also has an annual meeting in Washington with the leaders of the federally recognized tribes, to hear their concerns and reassure them of his support.
As mentioned previously, the genuine tribes have a lot to lose if a Hawaiian tribe gets federal recognition. The Hawaiian tribe would be the largest tribe in America, easily grabbing the lion's share of government handouts from a shrinking budget. The Hawaiian tribe would also be able to purchase land in other states, place it into federal trust, and have gambling casinos competing against the casinos many tribes rely upon as their primary source of income.
Census 2010 identified 527,077 people who checked the box for being "Native Hawaiian." 289,970 were residents of Hawaii. That means 237,107 were residents of other states. There are ethnic Hawaiians living in every state. Some states have huge numbers of them. For example 74,932 ethnic Hawaiians were living in California, an increase of 25% above the number living there in 2000 -- thus their branch of the Hawaiian tribe seems to be flourishing, would be the largest tribe in California, and clearly capable of owning and managing one or more casinos (See notes regarding Census data)
Some leaders of genuine tribes might think that federal recognition of a Hawaiian tribe would help insulate the genuine tribes against philosophical or legal arguments that all tribes should be abolished. If a fake tribe can be created then the real tribes might feel more secure. A predator looking for food is likely to attack the weakest animal in the herd, so creating a Hawaiian tribe with weak historical or legal justifications would allow it to be sacrificed later to preserve tribes with stronger credentials. But the real tribes don't need a decoy. A better analogy is that welcoming a weak animal puts the whole herd at greater risk, because multiple predators will first be attracted to the weak animal but will then start a frenzy of attacks on many animals which otherwise might have been left unmolested.
There are plenty of strong arguments why a Hawaiian tribe should not be recognized -- arguments which do not in any way attack the legitimacy or sovereignty of genuine tribes (see notes). That's because Hawaiians are really nothing like an Indian tribe. Describing those differences is how to attack federal recognition for a Hawaiian tribe while not attacking the real tribes. Native Hawaiians historically welcomed large numbers of non-natives, giving them full citizenship, voting rights, property rights, and leadership positions. Nothing like that ever happened with the genuine tribes. Ethnic Hawaiians have had no legal or residential or spiritual separateness from the rest of Hawaii's people for two centuries, and no native governing body that has exercised substantial authority over them.
If the genuine tribes push for recognition of a phony Hawaiian tribe and welcome it among themselves as an equal, then philosophers and lawyers are likely to raise doubts about the legitimacy of all the tribes. The rottenness of one bad apple can spread throughout the barrel.
From 2000 through 2012 the Indian tribes gave political support to the Akaka bill. Julie Kitka, chair of the Alaska Federation of Natives, came to Hawaii to testify in favor of reparations for Native Hawaiians (1999 "Reconciliation" hearings) and again in August 2000 to testify before a 5-day joint hearing of the U.S. Senate and House committees that had jurisdiction over the Akaka bill (the only members of Congress who actually attended were the two Hawaii Senators Dan Akaka and Dan Inouye, the two Hawaii Representatives Neil Abercrombie and Patsy Mink, and the Territorial Delegate from American Samoa Eni Hunkin Faleomavaega). Tex Hall, president of the National Congress of American Indians, testified alongside Haunani Apoliona, chair of the Office of Hawaiian Affairs, before the Senate Committee on Indian Affairs in Washington.
For many years there has been a close relationship between the Hawaii and Alaska delegations to Congress, led by Dan Inouye (Democrat) and Ted Stevens (Republican). When one party held power, its delegation would take care of the other state's interests. Thus Stevens and Murkowski were among a very few Republicans who supported the Akaka bill, while Inouye and Akaka were the only two Democrats voting in favor of a bill to allow oil drilling in the Arctic National Wildlife Refuge. Although Stevens and Inouye are both dead, and Akaka has retired, the special relationship in Congress between Alaska and Hawaii is likely to continue.
But support from mainland tribes for federal recognition of a Hawaiian tribe was always shaky, and might now be changing. Senators Inouye and Akaka both served on the Indian Affairs Committee together for many years. Each of them also served as chairman of that committee. The two Hawaii Senators wielded enormous power over the mainland tribes -- the power to appropriate billions of dollars for Indian programs, to pass laws regulating how the tribes do business, to summon tribal chiefs to oversight hearings where their leadership, policies, and budgets could be challenged, etc. The mainland tribes feared the size and power of a proposed Hawaiian tribe; but they feared Inouye and Akaka more. When Tex Hall testified before the Indian Affairs Committee, some Senators asked him whether he was sure he wanted to support creation of a Hawaiian tribe. Mr. Hall insisted he supported it; but perhaps he had his fingers crossed behind his back. His demeanor had hints he was like a prisoner of war telling the Red Cross he is being treated well.
Now that Inouye and Akaka are gone, we who oppose the creation of a Hawaiian tribe, and especially we who oppose gambling in Hawaii, should ask mainland tribal leaders for help in stopping federal recognition for a Hawaiian tribe. Since recognition activity is now taking place primarily behind the scenes, tribal leaders do not need to issue public statements -- they can speak quietly to government officials they routinely talk with in the Bureau of Indian Affairs and the Department of Interior. Let's encourage them to kill this egg before the snake hatches.
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NOTES
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The Hawaii Coalition Against Legalized Gambling has its website at
http://hcalg.org/
One section of the website includes a section listing the groups who are allied with HCALG in opposing gambling, and another section providing valuable information on all the gambling bills in the Hawaii legislature from 2009 to now. For example: In 2011-2012:
HB1225
Allows bingo to be conducted by 1 licensee at 1 location on lands designated by the Hawaiian homes commission. Creates Hawaii bingo commission within department of commerce and consumer affairs to regulate bingo. Allocates 20% of general excise tax on gross receipts to the state general fund; 1% for a compulsive gambler program; up to 4% for administrative expenses; and the balance for deposit into the Hawaiian home lands trust fund.
HB1227
Authorizes the Hawaiian homes commission to allow gaming on Hawaiian home lands and to consult with the Hawaiian Homes Commission Act, 1920 beneficiaries and designate specific Hawaiian home lands parcels for the purposes of establishing casino gaming operations. Creates the Hawaii gaming commission to regulate casino gaming operations. Imposes a wagering tax on gross receipts of casino gaming operations and provides for distribution to the general fund and Hawaiian home lands trust fund.
HB2379
Authorizes the Hawaiian homes commission to allow gaming on Hawaiian home lands and to consult with the Hawaiian Homes Commission Act, 1920 beneficiaries and designate specific Hawaiian home lands parcels for the purposes of establishing gaming operations. Creates the Hawaii gaming commission to regulate gaming operations. Imposes a wagering tax on gross receipts of gaming operations and provides for distribution to the general fund and Hawaiian home lands trust fund.
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A compilation is available containing an index and full text of all significant news reports and editorials during 2013-2014 about the Akaka bill, activities behind the scenes in the Obama administration, and state recognition through the Kana'iolowalu racial registry. See
https://www.angelfire.com/big09/AkakaHist113thCong.html
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For each 2-year period of a particular Congress, from 2000 to now, there is a compilation in chronological order containing an index and full text of all significant news reports and editorials about the Akaka bill, including text of each version of the bill; and for 2006 the compilation includes Congressional Record transcripts of all the speeches and votes in the Senate regarding the cloture motion. A summary of each two-year period, and a link to the compilation for that period, can be found at the top of the webpage for the 113th Congress, at
https://www.angelfire.com/big09/AkakaHist113thCong.html
A good way to use any particular compilation for research is to download it onto your computer and then use your computer's internal "find" or search function to look for all instances of a particular word or phrase, such as "gambling"
For example: In February and March 2009: Huge debate over gambling in the Akaka bill. A version of the Akaka bill was introduced that no longer had any provisions found in previous versions that prohibited gambling operations by the Akaka tribe. But there was such an uproar that an amended version was introduced that did restore some protection against gambling. Along the way proponents of the first bill insisted that provisions against gambling by the Akaka tribe were not necessary because the State of Hawaii prohibits gambling anyway; but nevertheless, political pressure was so great that the new version was introduced to soothe concerns over tribal gambling. Clearly, a lot of very smart people felt that it would be possible for an Akaka tribe to have casinos even though the State prohibits them, thus necessitating the amended version. Yet the most recent version of the Akaka bill (passed SIAC September 2012) explicitly allows the Akaka tribe to have gambling operations and confirms they would be regulated by IGRA; and the proposals to give federal recognition through executive action would also confirm on the Akaka tribe all the same rights enjoyed by other tribes, including gambling.
To read about the controversy over gambling in February and March 2009, use your computer's "find" or "search" command to look for the word "gambling" in the compilation of news reports from those months, at:
https://www.angelfire.com/big09a/AkakaHist111Feb2009.html
Here's another example. In 2005 the House Judiciary Committee, subcommittee on the Constitution, held a special hearing on the Akaka bill. In a very unusual action where a Senator presents testimony to a House subcommittee, Senator Kyl send a detailed statement describing the dangers that the Akaka bill would actually allow gambling. Here's part of what Senator Kyl said, which illustrates how obscure and difficult the technical issues can be:
https://www.angelfire.com/hi5/bigfiles3/AkakaKylToHseJudicry071905.pdf
C. The Response is Evasive Regarding Gambling on "Native Hawaiian" Lands.
The Response states that there is "no basis for fears that Hawaii will be overrun by gambling
interests." (Response at 8.) But all S. 147 guarantees is that the bill "shall not be construed to
authorize the Native Hawaiian governing entity to conduct gaming activities under the authority of the Indian Gaming Regulatory Act ["IGRA"]."14 Contrary to the belief of some, IGRA is not a
federal licensing scheme that creates authority to operate a casino; rather, IGRA regulates preexisting
tribal authority to engage in gambling. Prior to IGRA's enactment, several courts
recognized that because "[t]here is a presumption against state jurisdiction in Indian country," tribes
can permit gambling that would not be allowed under state law.15 Tribes thus operated gambling
businesses as an "exercis[e] [of] their inherent sovereign governmental authority."16 Given this
legal background, this legislation's effect is only to ensure that gaming will not be limited by the
regulations in IGRA. It leaves open the possibility that the Native Hawaiian entity will exercise the
"inherent" right to conduct gambling activities free from state or federal interference. Moreover,
Section 8(b) of S. 147 gives the new Native Hawaiian entity the power to negotiate the extent of
their gaming rights with the State of Hawaii and the federal government.
The RPC Paper is not alone in raising this concern. The Department of Justice recently
warned that the language of S. 147 may be inadequate to protect against expansion of gambling in
Hawaii, stating clearly: "the legislation should clearly provide that the Indian Gaming Regulatory
Act will not apply to the native Hawaiian governing entity, and that the governing entity will not
have gaming rights."17 Clearly the Department of Justice does not believe that the existing
language is sufficient.
It is important not to minimize the risk that this legislation, amended or not, will become a
vehicle for future gambling expansion in Hawaii. After all, there is ongoing political pressure in
Hawaii to legalize gambling in different forms. As but one example, former Democratic Governor
Ben Cayetano has supported limited legalization of gambling on (and among) the Hawaiian
Islands.18 The existence of a Native Hawaiian entity will only increase the likelihood that gambling
will be legalized and later expanded in Hawaii. That is because, if treated as a tribe under federal
and state law (as proponents wish to make possible), the proposed Native Hawaiian entity will be
able to petition the Department of Interior to take lands "into trust" — the first step towards creating
"Indian lands" that can support Indian gambling. One would then expect the Native Hawaiian
entity to ask that it be treated "the same as other Indians" — precisely the argument being made
today.
14 See S. 147, section 9.
15 Indian Country, U.S.A. v. Oklahoma, 829 F.2d 967, 976 (10th Cir. 1987).
16 Id. at 982; see also Wisconsin Winnebago Bus. Comm. v. Koberstein, 762 F.2d 613, 616 n.3 (7th Cir. 1985)
(holding that tribe rather than State "regulates bingo games conducted by the tribe on the Winnebago reservation
because Wisconsin's bingo law "is inapplicable to games conducted on Indian reservations"); Mashantucket Pequot
Tribe v. McGuigan, 626 F.Supp. 245, 247, 249 (D. Conn. 1986) (because "States are generally precluded from
exercising jurisdiction over Indians in Indian county ... Connecticut's bingo law[s] ... are found not to be
enforceable").
17 See DOJ Letter at 2 (emphasis added).
18 See Associated Press, Governor backs cruise ship gambling, Honolulu Star-Bulletin, December 18, 2001
(noting also that former Gov. Cayetano supported limited gambling on the islands themselves), available at
http://starbulletin.com/2001/12/18/news/story1.html.
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INDIAN NON-INTERCOURSE ACT: From 1790 to 1834 a series of six laws were passed by Congress to protect Indian tribes from unfair or deceptive land transactions whereby tribes often gave away or sold their land very cheaply to white businessmen or to state or municipal governments. Those laws, collectively known as the Indian non-intercourse act, require the approval of Congress before any land transactions with Indian tribes can be confirmed lawfully. During recent decades numerous tribes have gone to court demanding huge amounts of land or money based on claims that tribal lands were sold without Congressional approval. Often those lands now have been fully developed, with entire towns on them, or farms and factories. Thousands of homeowners, most notably in upstate New York, have been unable to get mortgages or to sell their homes because of the cloud on their land title when a tribe files a lawsuit under the non-intercourse act.
On March 31, 2009 the U.S. Supreme Court ruled unanimously that the State of Hawaii owns the ceded lands in fee simple absolute and has the right to sell any parcels it chooses without needing permission from OHA. However, if a federally recognized Akaka tribe is now allowed to use the Indian non-intercourse act to attack the State's ownership of the ceded lands, that will be an entirely different matter. In that case the Supreme Court's ruling in 2009 might be set aside by a new ruling based on the Indian non-intercourse act which might say that the original transfer of lands in the annexation of 1898 and again in the Statehood Act of 1959 violated the rights of the Native Hawaiians.
Previous versions of the Akaka bill imposed a statute of limitations that land transfers prior to enactment of the bill could not be challenged, and/or imposed a time limit for filing future lawsuits against the federal, state, and county governments regarding events from before the bill was passed. There is neither a statute of limitations nor a time limit in the new bill. Indeed, the new bill removes the language from previous bills that prohibited the Akaka tribe from using the Indian non-intercourse act.
Here's the protection found in section 10(e) of the Akaka bill as it existed before September 13, 2012 which prohibited such lawsuits by the Akaka tribe; but the prohibition has now been removed:
"Real Property Transfers- Section 2116 of the Revised Statutes (commonly known as the 'Indian Trade and Intercourse Act') (25 U.S.C. 177) does not apply to any purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from Native Hawaiians, Native Hawaiian entities, or the Kingdom of Hawaii that occurred prior to the date of the United States recognition of the Native Hawaiian governing entity."
The removal of this protection is scary. It should stand as a warning that the people who wrote this bill intend to use the Indian Non-Intercourse Act to attack all Hawaii land titles, both private and government-owned.
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INDIAN CHILD WELFARE ACT: PUBLIC LAW 95-608, 25 USC Chapter 21, passed in 1978. The concern was that American Indian children were often being taken out of their tribes by foster or adoptive parents who could provide good homes for them but who were not tribal members and who had no native ancestry. The ICWA was passed to ensure that tribes would have enough children growing up while learning their cultural heritage, so that tribes would not become extinct through depopulation. If a child has any ancestry from a federally recognized tribe -- even as low as one drop of native blood -- then the tribe has standing in court to dispute adoptions by outsiders. A native adult who has neither a family nor personal relationship to the child may be given preference over even a family member who has no native blood. If one biological parent has even one drop of native blood, while the other parent has no native blood, then there is a strong presumption given in favor of the native parent in child custody disputes during divorce proceedings, regardless of negative findings such as poverty, alcoholism, or child abuse. A native parent might reassert parental rights long after abandoning the child and signing away those rights, even though the child has been growing up knowing only its non-native adoptive parents. In recent years there have been efforts to implement similar race-based preferences for foster or adoptive parents, or child custody, regarding ethnic Hawaiian children. But if the Akaka tribe becomes federally recognized then 35 years of federal ICWA statute and case law would suddenly become applicable in Hawaii, because the Akaka bill is silent regarding ICWA.
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INDIAN REORGANIZATION ACT OF 1934: This law reversed the previous Dawes Act under which lands owned communally by tribes had been allocated to individual tribal members, with the idea that eventually individual Indians would become owners of their lands in the same way as non-Indians and there would be no more tribal reservations. The IRA began the modern period of Indian law in which tribes were allowed to once again own lands communally, with individual Indians having only leases which could only be sold to or inherited by other tribal members or revert to the tribe.
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PLACING TRIBAL LAND INTO FEDERAL TRUST: States, counties, and municipalities are not allowed to impose taxes or zoning restrictions on federal lands. The Indian Reorganization Act of 1934 allows federally recognized tribes to place land into federal ownership to be held in trust for the tribe, thus making those lands, and tribal businesses thereon, exempt from state or local taxation and regulation. Indian tribes throughout the mainland have taken advantage of IRA to open tribally-owned gas stations, tobacco shops, liquor stores, and other businesses which do not have to pay the very large taxes on the products they sell. State and local governments are thus deprived of huge amounts of tax revenue, and must either increase taxes on everyone else or reduce government services. The tribal businesses are also exempt from state and local laws regarding environmental protection, the rights of labor unions, minimum age, minimum wage, workman compensation for injury, requirements for liability insurance, etc. Such businesses can thus set a price far below the prices charged by non-Indian businesses selling the same products, but still high enough to make large profits. The result is that non-Indian businesses which are fully taxed and regulated are driven out of business and the state and local governments are further deprived of tax dollars. Perhaps the largest source of money for tribes comes from their gambling casinos which are untaxed and unregulated by states and municipalities. The tribes sometimes distribute casino income to their members; but might also use the income to purchase additional land and place it into federal trust. Tribes also use their money to lobby legislatures for special treatment, and to give campaign contributions to state and local politicians who then feel obligated to pass laws favorable to the tribes (such as using other people's tax dollars to build highways, water conduits, etc. directly to the tribal casino).
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CARCIERI VS. SALAZAR: In 2009 the U.S. Supreme Court ruled in Carcieri v. Salazar, 555 U.S. 379 that the term "now under Federal jurisdictiIon" in the 1934 Indian Reorganization Act referred only to tribes that were federally recognized in 1934 when the IRA became law. The Court ruled that "now" meant back in 1934, not the present moment (as the new tribes would like). Therefore, the Court ruled, the federal government cannot take land into trust for tribes that were recognized after 1934.
What does this have to do with casinos, tax-free booze and gasoline, etc.?When Congress passed legislation allowing tribes to operate casinos, and giving tribes priority in establishing casinos over non-Indian businesses, large numbers of Indian groups suddenly decided they wanted to become federally recognized tribes. Thus, numerous new tribes have been recognized since 1934. From 1935 to 2008 those new tribes were putting land into federal trust. But according to the Carcieri decision in 2009, tribes recognized after 1934 cannot have the federal government take land into trust for them.
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CARCIERI FIX: Tribes recognized after 1934 have been banging loudly on the doors of Congress demanding legislation to overrule the Supreme Court; i.e., legislation that would change the law so that new tribes can have land taken into trust. But old, established tribes don't want the competition from new tribes; and the old tribes, many with casinos raking in hundreds of millions of dollars, have high-paid lobbyists opposing any Carcieri fix. So far, they have been successful in blocking it.
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SPECIAL CARCIERI FIX FOR THE AKAKA TRIBE: The new version of the Akaka bill includes a special Carcieri fix exclusively for the Akaka tribe. This would allow the new federally recognized Akaka tribe to put land into trust both in Hawaii and in other states, opening tax-exempt businesses and casinos even though other tribes recognized as long as 80 years ago are no longer allowed to do so. The end of Section 6 of the new Akaka bill has the following strange sentence which is the Akaka tribe's Carcieri fix: "RATIFICATION AND CONFIRMATION OF ACTIONS. -- Any action taken by the Secretary pursuant to the Act of June 18, 1934 (commonly known as the "Indian Reorganization Act") (25 U.S.C. 461 et. seq.) for the Native Hawaiian governing entity is ratified and confirmed to the extent that the action is challenged based on the question of whether the Native Hawaiian governing entity was federally recognized or under Federal jurisdiction on June 18, 1934."
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INDIAN GAMING REGULATORY ACT: The Indian Gaming Regulatory Act (Pub.L. 100-497, 25 U.S.C. § 2701) was passed in 1988 to allow the Bureau of Indian Affairs to regulate gambling on tribal lands, and was later amended to give tribes special preferences over states in allocating casino licenses.
The Akaka bill formerly had a prohibition against utilizing the Indian Gaming Regulatory Act to establish casinos. Section 10(a) of the Akaka bill S.675 in place before September 13, 2012 (and all versions of the bill for many years) said "The Native Hawaiian governing entity and Native Hawaiians may not conduct gaming activities as a matter of claimed inherent authority or under the authority of any Federal law, including the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) or under any regulations thereunder promulgated by the Secretary or the National Indian Gaming Commission." That prohibition was put in the Akaka bill more than a decade ago. It has been maintained continuously until September 13, 2012, and sometimes strengthened so that mainland tribes fearing Hawaiian casinos in mainland states would not pressure their states' Senators to oppose the Akaka bill; and to allay the fears of Hawaii citizens in a state which has staunchly refused to allow any form of legalized gambling.
But the September 2012 legacy Akaka bill reverses that prohibition and now explicitly encourages gambling: "The Native Hawaiian governing entity is subject to the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) (including regulations promulgated pursuant to that Act by the Secretary or the National Indian Gaming Commission)." That sentence clearly anticipates that the Akaka tribe will have gambling casinos, and those casinos will be permitted and regulated the same way as casinos of all other tribes.
The new bill adds that the Native Hawaiian governing entity "may not conduct gaming activities (within the meaning of section 4 of that Act (25 U.S.C. 2703) unless the State of Hawaii permits such an activity for any purpose by an individual, organization, or entity."
That last sentence clearly means that if the State of Hawaii ever allows any form of legalized gambling, even as small as a permit for one church to have a Saturday night bingo game, then the Akaka tribe is allowed to have full-blown casinos in Hawaii.
There have been numerous efforts for many years in the state legislature to pass bills allowing gambling. Powerful mainland groups send lobbyists to the Hawaii legislature and to make appearances on TV and radio programs in hopes they will reap huge profits if gambling is ever allowed. A commonly used name for Las Vegas is "Hawaii's 9th Island" because so many Hawaii people go there so often to gamble (So why not keep the profits in Hawaii by letting them gamble here?). Even when the Akaka bill had the provision forbidding the tribe to sponsor gambling, there were bills in the legislature to allow casinos on the Hawaiian Homelands; and those bills were supported by OHA and DHHL who probably imagined that when the Akaka bill passed then the tribe would take over the homelands and thus acquire casinos built at the expense of state taxpayers.
Now let's consider that sentence again to see whether it applies to other states. The Native Hawaiian governing entity "may not conduct gaming activities (within the meaning of section 4 of that Act (25 U.S.C. 2703) unless the State of Hawaii permits such an activity for any purpose by an individual, organization, or entity."
Does that mean that the ability of the Akaka tribe to put casinos in other states depends on whether the State of Hawaii passes a law allowing gambling in Hawaii? Such an interpretation would be ridiculous. That sentence is sufficiently unclear that it will probably be construed to apply only to Hawaii. If another state or tribe cites that sentence to forbid the Akaka tribe from building a casino outside Hawaii because Hawaii itself does not allow gambling, then the Akaka tribe will probably file and win a lawsuit asserting that the clear intent of that language is to prohibit the Akaka tribe from sponsoring tribal gambling IN HAWAII until the State of Hawaii passes a law legalizing gambling in Hawaii. In such a lawsuit the Akaka tribe will assert that it is now a federally recognized Indian tribe with all the same rights as any other tribe under the Indian Gaming Regulatory Act, including the right to have gambling casinos in any state where any form of gambling is legally permitted, regardless whether gambling is legal in Hawaii. Federally recognized tribes are not confined to individual states, either for membership or for tribal casinos.
Even if gambling is not allowed in Hawaii, the Akaka tribe will be allowed to have casinos in all other states (except Utah). Here's language in the new Akaka bill that says the Akaka tribe is to be treated the same as every other federally recognized tribe. The new S.675 says it creates "a single Native Hawaiian governing entity that exercises the inherent powers of self-government of a native government under existing law with the same privileges and immunities available to other federally recognized Indian tribes" and the Akaka tribe shall "be considered to be an Indian tribe for purposes of section 104 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a–1)" and "The Secretary may consider the Native Hawaiian governing entity to be an Indian tribe for purposes of carrying out any activity authorized under the Act of June 18, 1934 (commonly known as the ‘‘Indian Reorganization Act'') (25 U.S.C. 461 et seq.)."
In recent years some genuine Indian tribes have been purchasing land and building casinos many miles outside their reservations, even across state lines. Every state has Native Hawaiians; and many states have thousands of them. For example, in Census 2010 there were 74,932 Native Hawaiians living in California, which would make them the largest tribe in that state which already has many tribal casinos. In Census 2010 there were 237,107 Native Hawaiians living in states outside Hawaii. Surely the branches of the Akaka tribe in other states will want casinos; or the tribal headquarters in Honolulu might choose to put casinos there anyway.
Here's an example of how strenuously previous versions of the Akaka bill prohibited the Akaka tribe from gambling -- these prohibitions have now been removed from the bill. In the 111th Congress, the Akaka bill then-numbered S.708 and H.R.1711 was introduced on March 25, 2009 specifically for the purpose of adding very strong protections against gambling, because of renewed worries by the genuine tribes that the Akaka tribe might infringe on their turf. Note that part (b) of Section 10 explicitly prohibits the Akaka tribe from gambling "regardless of whether gaming by Native Hawaiians or the Native Hawaiian governing entity would be located on land within the State of Hawaii or within any other State or Territory of the United States." Here's the full text of Section 10 from the 2009 Akaka bill:
"SEC. 10. APPLICABILITY OF THE INDIAN GAMING REGULATORY ACT.
(a) Prohibition- The Native Hawaiian governing entity and Native Hawaiians may not conduct gaming activities as a matter of claimed inherent authority or under the authority of any Federal law, including the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) or under any regulations thereunder promulgated by the Secretary or the National Indian Gaming Commission.
(b) Applicability- The prohibition in subsection (a) related to the use of Indian Gaming Regulatory Act and inherent authority to game apply regardless of whether gaming by Native Hawaiians or the Native Hawaiian governing entity would be located on land within the State of Hawaii or within any other State or Territory of the United States."
Those protections in the 2009 Akaka bill explicitly anticipated that a federally recognized Akaka tribe could and would engage in gambling operations in other states, and prohibited that from happening Those protections are now totally absent from the most recent September 2012 legacy Akaka bill, and have been replaced by language anticipating and encouraging gambling operations.
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VIOLENCE AGAINST WOMEN ACT: It is controversial because for the first time it gives tribal courts jurisdiction over non-Indians on accusations of assault or rape committed on tribal lands.
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For further discussion of these topics see a webpage "Why the new Akaka bill is the worst one yet: bad for the people of Hawaii, bad for the genuine Indian tribes, bad for the entire U.S." [passed by U.S. Senate Indian Affairs Committee on September 13, 2012 12/17/2012. Placed on Senate Legislative Calendar on December 17, 2012 under General Orders, Calendar No. 568 with Senate Report 112-251]
https://www.angelfire.com/big09/Akaka091312Analysis.html
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Can Akaka tribe be recognized by bureaucratic fiat? Issues raised in report by the Inspector General of the U.S. Department of Interior regarding arbitrary and capricious granting of recognition to the "Tejon Indian Tribe" in 2011 by Larry Echo Hawk, who was then Assistant Secretary for Indian Affairs.
https://www.angelfire.com/big09/AkakaTejonEchoHawk.html
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Census 2010 Native Hawaiian data -- some political implications for the Akaka bill, Act 195 state recognized tribe, and the Hawaiian grievance industry racial victimhood allegations. Includes Census sources and data for number of ethnic Hawaiians nationwide and in Hawaii, number of "pure Hawaiians", median age of ethnic Hawaiians in Hawaii compared to median age of other ethnicities.
https://www.angelfire.com/big09/Census2010NativeHawaiian.html
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"The Akaka bill can be rejected for reasons that do not attack the legitimacy of the genuine Indian tribes." Webpage at
https://www.angelfire.com/big09a/AkakaVsTribes.html
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