Big Bad Surprises in the New Akaka Bill

By Kenneth R. Conklin, Ph.D.

• Tribal casinos in Hawaii even if the state legalizes only church bingo.

• Grabbing for federal, state, and even private lands in Hawaii.

• Akaka tribe casinos competing against genuine tribes on mainland.

• Grabbing federal handouts away from genuine tribes.

• Pig in a poke — recognizing a tribe before it’s created.

• Race the only requirement enforced for tribal membership.

• Balkanize America — any “indigenous” group can now be a tribe.

The present essay is a quote-free, citation-free version of a more detailed analysis with extensive documentation and internet links. Please see http://tinyurl.com/9yadojp

The new Akaka bill introduced on Sept. 13, 2012 is a monster. It’s only 14 pages long, but it’s all the previous versions on steroids.

Until now the bill prohibited the Akaka tribe from engaging in any form of gambling in Hawaii or anywhere else. The new version authorizes full-blown tribal casinos in Hawaii if the state ever legalizes any form of gambling including church bingo.

This new bill allows the Akaka tribe, by far the largest tribe in America, to bully the genuine but much smaller mainland tribes by competing against them in two ways which previous versions of the bill prohibited. (a) The Akaka tribe can put casinos in 48 other states (excluding Utah) even if the State of Hawaii does not allow gambling in Hawaii. (b) Language in the bill also says the Akaka tribe can immediately receive benefits automatically from existing programs routinely available to all the federally recognized tribes, plus any new programs. In view of America’s $16 Trillion national debt, the pot of money available for tribal benefits is likely to shrink. Now along comes the huge phony Akaka tribe, elbowing out the real tribes like King Kong in a room full of pigmies.

Here’s an issue applying in Hawaii and throughout the U.S. A Supreme Court ruling in 2009 (Carcieri v. Salazar) defined the word “now” as used in the Indian Reorganization Act of 1934 to mean 1934 and not the present time. As a result, any new tribe recognized after 1934 is prohibited from placing land into federal ownership, where it is held in trust for the tribe. Federal land is exempt from state and local taxes and regulations. So the older tribes can have casinos, liquor stores, gas stations, and tobacco shops regardless of local zoning or labor laws, and make huge tax-exempt profits. All the new tribes are clamoring for Congress to pass a “Carcieri fix” but the older tribes use their casino wealth to lobby against it. The Akaka bill contains a Carcieri fix exclusively for Senator Akaka’s own wannabe tribe — a lovely golden parachute for Hawaii’s smiling, gracious racist-in-chief and all 527,077 members of his blood brotherhood in Hawaii and everywhere else.

Someone should tell the mainland tribes the time has come for them to oppose the Akaka bill if they don’t want their turf to be invaded by Hawaiian casinos and have their government handouts reduced to accommodate a rapacious Akaka tribe.

But it’s not only the genuine Indian tribes or Hawaii opponents of legalized gambling who should be worried. The new Akaka bill threatens everyone in Hawaii and the rest of theUnited States, in many ways. Here are some of those threats.

Virtually all lands in Hawaii are at risk to be taken over by the Akaka tribe. That’s because the new bill removes language that previously prohibited the Akaka tribe from making use of the 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, required the approval of Congress before any land transactions with Indian tribes could 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 a century or two ago. Often those lands now have been fully developed, with entire towns on them, or farms and factories. Thousands of homeowners 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. Thus private lands are attacked along with federal, state and municipal lands.

In Hawaii there’s great controversy over the “ceded lands” and assertions by Hawaiian activists that all lands formerly owned by the government and/or the monarch of the Kingdom of Hawaii were improperly ceded to the U.S. at the time of annexation (1898) and continue to be improperly held by the federal and state governments today. The ceded lands include all Hawaii federal lands such as military bases and national parks; and about 95% of all the land and water owned by Hawaii state and county governments used for schools, airports, harbors, roads, parks, drinking and irrigation, etc. Under the new bill, armed with the Indian non-intercourse act, the Akaka tribe will be free to file lawsuits to take control of such lands or to receive massive compensation for them, similar to what has happened on the mainland even in long-established towns in Maine, New York, and many other places. Privately owned lands could be at risk if originally granted to Hawaiian natives in the Mahele of 1848 and then later sold to someone with no native blood.

A unanimous U.S. Supreme Court decision on March 31, 2009 ruled that the ceded lands are rightfully owned by the State of Hawaii in fee simple absolute, and the state does not need permission from Native Hawaiians to sell those lands. However, OHA and individual Native Hawaiian activists, armed by the Akaka bill with the Indian non-intercourse act, might now be able to re-open that whole can of worms.

The new Akaka bill is a pig in a poke — it asks Congress to grant federal recognition to a tribe which has not yet been created. The bill’s accompanying news release on Senator Akaka’s official website has a headline calling this a “streamlined bill.” Indeed, it’s lean and mean. It’s streamlined in the way a sniper bullet to the heart could be called a streamlined version of a hand grenade or roadside bomb. “Streamlined” is a euphemism for concealed action lacking accountabiity or Congressional oversight. The tribe will be recognized immediately when the bill is passed — before its members have enrolled, before a tribal council has been elected, before a tribal constitution has been written and ratified, etc.

Part of what makes the bill streamlined is that it defers the process for creating the tribe to Hawaii Act 195 (2011) and to the Kana’iolowalu racial registry process set up by the Native Hawaiian Roll Commission under the auspices of Act 195. Thus Congress has washed its hands of oversight or responsibility for what happens. Of course we all trust commissioners John Waihee, Mahealani Kamauu Wendt and their ilk, don’t we?

An example of what can go wrong when a Congressional law defers to a state law for its implementation is this. Act 195 says that someone is qualified for membership in the Akaka tribe if he is 18 years of age, has Hawaiian native blood, and “Has maintained a significant cultural, social, or civic connection to the Native Hawaiian community.” That last requirement was adopted to ensure that the Akaka tribe will have the appearance of being a political entity and not merely a racial group. Racial groups don’t get federal recognition unless they’re organized under some sort of chiefly council or government which exercises significant authority over its members.

That third requirement began showing up in the Akaka bill a few years ago under advice from the U.S. Department of Justice. But it’s in Act 195 only as a pretext to give the appearance of being a political group. In reality the signup sheet for the Kana’iolowalu racial registry stringently enforces the age and racial requirements by demanding documented proof; but does not require any documentation regarding cultural or civic connection nor even the name of a single group to which the applicant allegedly belongs. Hawaiian groups like hula halaus and canoe clubs are open to people of all races. But members with Hawaiian blood are the only ones who can apply to join the Akaka tribe. This shows it’s all about race and not about “cultural, social or civic connection to the Native Hawaiian community.”

That brings us to the final but most important topic for this essay. What has made all versions of the Akaka bill frightening is the racial balkanization of Hawaii and America. The Akaka bill authorizes the people and lands of Hawaii to be divided along racial lines into different governments with different laws. We’re talking about 21% of Hawaii’s people, not just some small tribe in the boondocks of Wyoming. We’re talking about perhaps half the land of Hawaii’s main 8 islands plus the entirety of the 1200 mile long and 400 mile wide Papahanaumokuakea National Marine Sanctuary running all the way to Kure Atoll, with all its islands, rich fishing grounds, and seabeds waiting to be mined. We’re talking about neighbors across the street living under different civil and criminal laws, and a child-custody presumption automatically favoring an ethnic Hawaiian parent in a divorce.

The Akaka bill reaches throughout America. There are more than 237,107 Native Hawaiians living in states outside Hawaii, including 74,932 in California. Most importantly, the new Akaka bill encourages far-reaching racial balkanization by redefining the word “tribe” in the Constitution to mean “indigenous people.” So instead of about 560 tribes, there could be thousands of them as Congress seizes a power never envisioned in the Constitution, to single out any group of so-called indigenous people and create a government for them regardless whether they were ever previously organized like that. The largest, most politically active group which might try that is the “Nation of Aztlan” consisting of virtually all Mexican-Americans, because having at least one drop of Aztec or Mayan blood qualifies them as “indigenous.” The leaders of this movement demand the right to create a race-based government controlling all the lands in the U.S. that were formerly part of Mexico: California, Arizona, New Mexico, Texas, and portions of Nevada, Colorado, etc. The Akaka bill sets a precedent empowering such a scenario. That’s one reason “La Raza” favors the bill, along with advocates for a reconquista.

It’s time for Congress and the Hawaii Legislature to realize the tremendous damage being done by the Akaka bill, Act 195, etc. The damage is not only to property and government, but to the Aloha Spirit and to our very souls as we face a future of racial separatism and ethnic nationalism. Please stop this nonsense.

The situation with the Akaka bill is similar to the Honolulu rail project. Politicians colluding with wealthy, powerful institutions spewing massive propaganda initially persuade the public to go along with it. But as implementation gets closer to becoming reality, people see the bad consequences more clearly and rebel against it. How much money and social strife must be spent to get to that moment when we wake up and change course? What will be the costs to undo the damage already done? Stop it!

Ken Conklin, Ph.D., is a retired professor of philosophy, who has lived in Kane’ohe since 1992. His area of greatest expertise is the issue of Hawaiian sovereignty. Conklin’s book “Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State” is in the Hawaii Public Library, and also at http://tinyurl.com/2a9fqa
Views expressed in this column are intended to promote creative thought, educate, and, we hope, prompt comment. Accordingly, thoughts expressed do not necessarily reflect the official position of Grassroot Institute of Hawaii or the author.
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