All posts by Malia Blom

New Court Decisions in Native American Law

As we’ve mentioned here more times than I can count, it’s important that we stay apprised of developments and impact of Native American law, as the Akaka Bill seeks to bring those precedents to Hawaii.  With that said, here are some of the more significant decisions of late. (Note that two of the cases have to do with child custody and parental rights–further underlining the need for a full study of the possible impact of the Indian Child Welfare Act on post-Akaka Hawaii.)

Southern Ute Indian Tribe v. Sebelius

Court: U.S. 10th Circuit Court of Appeals

Docket: 09-2281

Opinion Date: September 19, 2011

Judge: Seymour

Areas of Law: Contracts, Government & Administrative Law, Native American Law

This was the second appeal in litigation arising from the Secretary of Health and Human Services’ (HHS) decision not to enter into a self-determination contract with the Southern Ute Indian Tribe (Tribe). In an initial order, the district court ruled that HHS’s decision was unlawful, granted summary judgment to the Tribe, and directed the parties to prepare a proposed order for injunctive relief. After the parties were unable to agree on the proposed order, the district court issued an interlocutory order in which it endorsed HHS’s approach to the contract’s start date and contract support costs. The Tribe appealed, and the Tenth Circuit dismissed the appeal for lack of jurisdiction. On remand, the district court issued a final order, directing the parties to enter a self-determination contract including HHS’s proposed language regarding the contract start date and contract support costs and denying the Tribe’s request for damages. Both parties appealed. Upon review, the Tenth Circuit affirmed the district court’s determination that HHS was required to contract with the Tribe and regarding the contract start date, but reversed the court’s decision regarding contract support costs.


Samish Indian Nation v. United States

Court: U.S. Federal Circuit Court of Appeals

Docket: 10-5067

Opinion Date: September 20, 2011

Judge: Gajarsa

Areas of Law: Government & Administrative Law, Native American Law

The Court of Federal Claims dismissed, for lack of jurisdiction, the most recent claims brought by the Samish Indian Nation in its continuing quest for federal recognition and benefits. The claims court reasoned that some of the allegations were not premised upon any statute that was money-mandating, and that allegations reliant on money-mandating statutes were limited by other statutes, so that they fell outside the scope of the Tucker Act (28 U.S.C. 1491(a)) and the Indian Tucker Act (28 U.S.C. 1505). The Federal Circuit affirmed with respect to some of the allegations because the Tribal Priority Allocation system (25 CFR 46.2) is not money-mandating. The court reversed dismissal of claims under the Revenue Sharing Act, reasoning that the court’s ability to provide a monetary remedy under that law is not limited by operation of the Anti-Deficiency Act, 31 U.S.C. 1341.

Yancey v. Thomas

Court: U.S. 10th Circuit Court of Appeals

Docket: 10-6239

Opinion Date: September 20, 2011

Judge: Hartz

Areas of Law: Constitutional Law, Family Law, Native American Law

Petitioner Christopher Yancey filed an action in district court contending that Oklahoma state-court rulings terminating his parental rights over his Indian child were invalid under the Indian Child Welfare Act (ICWA). The district court dismissed his action, determining that either federal abstention was mandated, or the action was barred by the Full Faith and Credit Clause of the United States Constitution. Tiffany Leatherman and Petitioner are the natural parents of Baby Boy L. Petitioner was a member of the Muscogee (Creek) Indian Nation of Oklahoma, but Leatherman was not a member of any Native American tribe. Petitioner and Leatherman were teenagers when the child was conceived, and they never married. Before the child was born, Leatherman decided to place him for adoption, and she located Timothy and Tammy Thomas who were interested in adopting him. In December 2002, Leatherman brought an action in Oklahoma state court to terminate Petitioner’s parental rights and to determine the child’s eligibility for adoption without Petitioner’s consent. Leatherman appeared in court, relinquished her parental rights, and consented to the adoption. Petitioner appeared in the proceedings and objected to the adoption. On May 18, 2010, the Oklahoma trial court entered an order terminating Petitioner’s parental rights. The court found that the ICWA had been complied with and that the Thomases had proved beyond a reasonable doubt that Petitioner’s custody of Baby Boy L. would likely result in serious emotional or physical damage to the child. There was no indication in the record that Petitioner appealed that order. On the day after the Oklahoma trial court entered its order, Petitioner filed this action against the Thomases. Upon review, the Tenth Circuit found that the district court did not err in dismissing Yancey’s federal-court action because it was barred by res judicata. Accordingly, the Court affirmed the district court’s decision terminating Appellant’s parental rights.

In re Adoption of G.D.J.


Court: Oklahoma Supreme Court


Docket: 108889

Opinion Date: September 20, 2011


Judge: Combs


Areas of Law: Family Law, Native American Law


Petitioners-Appellees, Teryl Pearson and Robert Pearson (Pearsons) petitioned to adopt Teryl Pearson’s (Pearson) grandson, G.D.J. The natural mother, Respondent-Appellant Tessia Bre Stubbs (Stubbs) contested the adoption. The trial court entered two orders on August 11, 2010, in favor of the Pearsons on their Application to Adjudicate Minor Eligible for Adoption Without Consent of the Natural Mother and in its Order Adjudicating Minor Eligible for Adoption Without Consent of the Natural Mother. Stubbs raised multiple issues in her attempt to block the adoption. Among them, she argued that the trial court erred in finding that she failed to contribute to the support of G.D.J., and failed to maintain a meaningful relationship with G.D.J. Upon careful consideration of the trial court record, the Supreme Court found the evidence presented was sufficient to support the trial court’s decision to allow the adoption to proceed.




Polling for Preference

A new Zogby poll on contracting preferences finds that when it comes to awarding government contracts, the majority favors the (rather common sense) approach of awarding contracts to the lowest qualified bidder.  Of course, those who have experience with the thorny thicket of government contracting rules know that this is far from the norm.  We’ve written in this space about the prevalence of preferences for minority businesses (specifically Native Hawaiian and Native Alaskan) and that’s just the beginning.

However, the poll found that overall, only 34% favored preferences for women or minority-owned businesses (though unsurprisingly, that number shifted according to certain demographic factors), and there was a decided bias for awarding state contracts to businesses within that state or federal contracts to businesses within the country.  On the whole, women were more likely to favor preferences than men and older respondents were more likely to support preferences in general.

In the latest Grassroot Institute newsletter, we had our own poll question on preferences–namely whether you think that the government grants listed on this site should continue.  If you haven’t had the chance to vote yet, be sure to visit the poll and do so–we’ll keep you updated on the results.

Grassroot Institute Releases Annual Report

I confess to a great dependence on Annual Reports.  When you’re seeking information on grants and granting agencies, sometimes few things can tell you as much about an organization as what they choose to tell you–which is why I am such an avid reader of OHA’s reports.  Well, what’s good for the goose and such.  Much as OHA looks with satisfaction at its own projects, so do we at Grassroot.  And our aims aren’t as different as you might think.  We both want to improve Hawaii and the situation of all Hawaiians.  It’s just how we interpret that and carry it out that makes all the difference.  And also budget.  I’m willing to bet that OHA spends more on office supplies than we do on . . . well, pretty much anything.  But I digress.  The point today is to let you know about our newly-released Annual Report.

Consider it the curse of being active–by the time you finish describing all the accomplishments and activities of your previous year, you’re already well into a busy and productive new year.  And yet, it would be a shame not to draw attention to the recently published Grassroot Institute of Hawaii Annual Report for 2010.  We’re proud of what we’ve done to champion liberty and accountability in Hawaii over 2010, and we’re continuing that work now (and with your help and support) into the future.

From the Pork Report to our transparency efforts to our investigation into Special Funds, Grassroot Hawaii is doing work that no one else in the Islands has.  Please, check out our Annual Report and considerbecoming a member of the Grassroot Institute today! Joining is as little as $25-$50 and marks you as one of the few and proud defenders of liberty in Hawaii.  (Click here to go to our Join/Donation page.)


OHA Announces Another New Grants Program

We’ve been beating the drum on granting accountability with a fair (some might say nearly obsessive) degree of frequency.  As the main state grantor of Native Hawaiian programs, OHA naturally comes in for a large share of this criticism and analysis–and their reticence to share much about their evaluation process (not to mention the seemingly random nature of some of their grants) tends to exacerbate the problem.  Not that I’m letting them off the hook.  After all, when you stand in a position of trust as OHA does for Native Hawaiians, I think that you owe that group a great deal of accountability on how you choose to award your grants.

Still, in a sign that I’m going to optimistically label as “hopeful” (though in truth it will come down to actual results and actions, not intentions and PR), OHA has announced a new granting program called “Granting for Results” that will focus on OHA’s top goals and priorities, including improving education, lowering chronic disease rates, and raising earning power for Native Hawaiians.  I’m less enthused about some of the other stated goals and focuses, which include:

creating stable housing; valuing history; participating in cultural activities; improving lifestyle choices; understanding the need for a viable land base; protecting natural resources; and transferring assets to the new Native Hawaiian governing entity.

(Key to my concern–some of these are so vague as to be meaningless ways to advance clear politicized agendas, be they environmental or social engineering.  and “transferring assets to the new Native Hawaiian governing entity” should raise eyebrows among Native Hawaiians who are wondering where the Akaka Bill will leave them.  Whose assets?  How?  Where?  Under whose control? For what?  And let’s recall that there are some pretty considerable assets in play when it comes to Native Hawaiian trusts.)

The new grants (which offer up to $100,000 to the non-profit organizations that win the awards) are broken into the following four categories:

  • ‘Ahahui Grant – makes up to $10,000 available for community events that reflect any of OHA’s 10 strategic results and charge no admission to Native Hawaiians. It requires matching funds that amount to at least 10 percent of the event’s total cost. In addition, it makes between $10,002 and $25,000 available for community events that can secure matching funds that amount to at least 25 percent of their total cost to stage. Applications are accepted twice a year with deadlines of July 15, 2011 and Nov. 15, 2011.
  • Kauhale Grant – makes up to $25,000 available for community-based projects that directly impact any of OHA’s 10 strategic results. It requires matching funds that amount to at least 25 percent of the total cost of the project. Aug. 31, 2011 is the deadline to apply for this grant.
  • Kamoku Grant – makes up to $50,000 available for projects focused on increasing the family-income levels of Native Hawaiians. It requires matching funds that amount to at least 25 percent of the total cost of the project. Aug. 31, 2011 is the deadline to apply for this grant.
  • Kaiāulu Grant – makes between $25,001 and $100,000 available for community-based projects that directly impact any of OHA’s 10 strategic results. It also requires matching funds that amount to at least 50 percent of the total cost of the project. Aug. 31, 2011 is the deadline to apply for this grant.

Let’s hope that we’ll see more openness from OHA on how these grants achieve their goals (and how effective they are in doing so).


OHA on Kauai

OHA is holding meetings on the outer islands, part of which includes discussion of some of their ongoing grant projects.  For more, check out the OHA release/newsletter blurb below:

The Board of Trustees for the Office of Hawaiian Affairs traveled to Kaua‘i for the first in a series of five community meetings with Native Hawaiians on the Neighbor Islands.

The community meeting – hosted by Trustee Donald B. Cataluna – drew a crowd of nearly 40 people to the King Kaumuali‘i School cafeteria.

Community member Alroy Enos, who is President of Ka Hale Pono, expressed appreciation for the $10,000 grant OHA awarded his organization to fund the first-ever parade in Anahola to mark Prince Kühiö Day.

Liberta Hussey-Albao, a 42-year Kaua‘i resident who has taken up genealogy as a hobby, offered her gratitude for the Papakilo Database, which she praised for assisting her efforts to trace family roots since OHA unveiled it in April.

Perhaps the most poignant moment came during a joint presentation by Rowena Contrades-Pangan and Anela Pä, the co-Directors of the Ho‘omana, which was created eight years ago with a $50,000 grant from OHA for such efforts as moving Native Hawaiians and others from welfare to work and providing inmates with a fighting chance when they get out of jail.

One of the program’s tough-to-employ clients fought back tears as she told the Trustees about recently completing a five-year prison sentence and receiving hope for her future from the program, which stepped in to provide her with job training and clothing at a time when family members and others gave up on her.

According to OHA Chairperson Colette Machado, Läna‘i will be the next stop for the Trustees, who will meet with Native Hawaiians on that island June 15-16 before heading to Moloka‘i in July, Maui in August, then the Big Island in September.

OHA Announces New Round of Grants

Have a program that will raise the well-being of the Native Hawaiian community?  The Office of Hawaiian Affairs is looking for you.  Non-profit granting trends being what they are, OHA has decided to create a new focus in their community granting program from a focus on addressing “individual needs” to programs that will, “lead to systematic change and maximize,” the impact on all Native Hawaiians.  A look through the 4Hawaiians Only wiki/database demonstrates that the community grants tend to be the broadest in interpretation of OHA goals, so it’s hard to say what difference this new focus will make.  I suppose we’ll have to see the results of the grant awards to evaluate the difference and what it could mean for Native Hawaiians.  I can say that the goal of fostering economic self-sufficiency is one that is consistently stressed in OHA publications, and interpreted rather broadly to support anything from community kitchens and farms to poi production.  The stress on education initiatives is also a constant, and can be seen in the many preschool and scholarship programs in the OHA fold.  What remains to be seen is whether the shift from individual help to systematic change affects the kinds of programs that have traditionally received these grants.  The grants can be up to 2 years and as much as $250,000 and are meant to focus on the following three “advocacy initiatives”:

  • Raising  family-income levels to help foster economic self sufficiency;
  • Meeting or exceeding educational achievement standards for  elementary, intermediate and high school students as well as increasing college graduation rates;
  • Reducing health risks by decreasing the obesity rate among Native Hawaiians.

(Those interested in learning more about the grant requirements, deadlines, etc. can  visit , call 594-1904 or email

Lobbying On The Taxpayer’s Dime

When you picture special interest groups and government lobbyists, you probably imagine corporate fat cats hiring sleazy lawyers to get them favors and interests from legislators.  (This also indicates that you’ve heard too many John Edwards speeches.)  Putting aside whether the unfairness of this image (unfairness to the business owners, that is–I wouldn’t dream of trying to defend the lawyers), it turns out that it doesn’t even correctly identify Hawaii’s biggest lobbying spenders.  Want to know who spent the most money trying to influence Congress so far this year?


Or more specifically, Hawaii’s taxpayers.  It turns out that in the first quarter of the year, government agencies in Hawaii spent more money lobbying in Washington, DC than private business did.  According to Hawaii Reporter, Hawaii state and local government spent about $185,000 on DC lobbying, compared to about $122,500 from Hawaii’s private businesses over the same period.  Unsurprisingly, the biggest state spenders were the Office of Hawaiian Affairs (which continues to push for the Akaka Bill) and InfraConsult, Inc. (which lobbies on behalf of Honolulu’s rapid transit project).

Yes, the state spends taxpayer dollars to lobby in Washington for more taxpayer dollars.  (And on behalf of issues that have significant public opposition back here in the Islands.)  And then they raise our taxes.  If that isn’t an argument for more fiscal accountability in our spendthrift government, I don’t know what is.

Victory for Akaka Bill at the State Level?

There is a tendency among state legislatures with short annual sessions, to pass a glut of questionable bills right before they adjourn for the year.  This is similar to the human instinct to try to camouflage embarrassing or problematic revelations by mixing them with many other questionable items in the hopes that they will somehow escape notice.   In other words, this is why, when people go the store to buy laxatives, they throw in a bottle of liquor and a box of hygiene products at the same time.  It doesn’t stand out so much that way.

Yes, I did just compare the Legislature to a man making an embarrassing pharmacy purchase.  And I’ll stand by that.  Because it works.  Think about it–what have you been hearing in the last few days about the Hawaii Legislature?  Lots of debate about various controversial tax and finance issues, some criticism over the failure to adequately deal with some pressing state issues, and a general clamor over the frantic last days.  It’s easy to lose track of individual items in that noisy mix.  Even when they’re as significant as the next step towards the creation of a Native Hawaiian government.

In case you missed it, the state House and Senate both approved the measure that would begin the creation of a roll of “qualified Native Hawaiians” interested in participating in the formation of a Native Hawaiian government.  This is (and has always been) a transparent effort to push for Congressional action on the Akaka Bill.  After all, if you can perpetuate the idea that the Bill has the full support of the State, which has already initiated the beginning steps towards tribal organization, then you’ve made the passage through Congress a little easier.  (In case you’re wondering, a five-person commission will have the responsibility of creating the roll of “qualified Native Hawaiians.”)

What is this truly the beginning of?  That’s a little harder to determine without the help of a crystal ball.  It’s interesting to note that despite all of the money that has been spent in trying to push for the Akaka Bill (in contrast to the woefully underfunded opposition), the majority of Hawaii’s citizens still harbor serious reservations about the Bill.  And one can’t help but wonder whether this newly created commission and the effort to produce a roll of “qualified Native Hawaiians” will not be the panacea that Akaka Bill supporters hope for.  It’s possible that the Native Hawaiian community might have serious questions about how one is determined to be “qualified” to participate.  It’s possible (probable even) that we’ll see a lawsuit or two about it.  And who knows how the process will affect the thinking of the rest of Hawaii’s citizens on the questions of reorganization itself?  The only thing that we can know for sure is that the push to pass the Akaka Bill will continue to gain steam, and those who hope for a public debate on the issue need to continue to remain active and involved.

The Myth of Government “Help”

It should be of interest to those affected by the Akaka Bill (in other words, pretty much everyone in Hawaii) to know that Native Hawaiians are not the only ones encountering controversy over the question of federal recognition of tribal status.  Columnist and investigative reporter John Stossel writes of the Lumbees of North Carolina, who (despite their lack of federal recognition as a tribe) have been doing very well:

Lumbees own their homes and succeed in business. They include real estate developer Jim Thomas, who used to own the Sacramento Kings, and Jack Lowery, who helped start the Cracker Barrel Restaurants. Lumbees started the first Indian-owned bank, which now has 12 branches.

The Lumbees’ wealth is not from casino money.

“We don’t have any casinos. We have 12 banks,” says Ben Chavis, another successful Lumbee businessman. He also points out that Robeson County looks different from most Indian reservations.

“There’s mansions. They look like English manors. I can take you to one neighborhood where my people are from and show you nicer homes than the whole Sioux reservation.”

In other words, the Lumbees are a living contradiction to the notion that federal recognition (and its accompanying financial “help”) are necessary to–or even capable of creating–the success of a Native American tribe.  It is an interesting lesson to those who see federal aid and recognition as the way to greater success for Native Hawaiians.  Especially when one considers the millions of dollars in federal grants that already go to help Native Hawaiians (and which you can view in our research wiki here) . . . not to mention the millions in federal contracting preferences that Native Hawaiian businesses enjoy.  In fact, as Stossel illustrates, the “help” of the federal government is a double-edged sword, that is as likely to eat away at tribal culture and foster dependency as anything else:

The government has made most Indian tribes wards of the state. Government manages their land, provides their health care, and pays for housing and child care. Twenty different departments and agencies have special “native American” programs. The result? Indians have the highest poverty rate, nearly 25 percent, and the lowest life expectancy of any group in America. Sixty-six percent are born to single mothers.

It goes without saying that Native Americans have endured injustice at the hands of the federal government, and that this very injustice is behind the demand for aid and recognition that have led to the current state of affairs.  A similar motivation lies behind many of the demands for Native Hawaiian recognition.  But this may also be a case of being careful about what you wish for.  As Stossel points out, there are many among the Lumbees who are opposed to federal money for the Lumbees, arguing that it will end the independence that has helped them prosper:

Tribal governments and the Bureau of Indian Affairs manage most Indian land. Indians compete to serve on tribal councils because they can give out the government’s money. Instead of seeking to become entrepreneurs, members of tribes aspire to become bureaucrats.

. . . .

Because a government trust controls most Indian property, individuals rarely build nice homes or businesses. “No individual on the reservation owns the land. So they can’t develop it,” Chavis added. “Look at my tribe. We have title and deeds to our land. That’s the secret. I raise cattle. I can do what I want to because it’s my private property.”

Supporters of the Akaka Bill would be well-advised to consider all the ramifications of inviting the government bureaucrats to become administrators of the culture and future of Native Hawaiians.  After all, as Ronald Reagan once quipped, the scariest phrase in the English language is, “I’m from the government and I’m here to help.”

Redefining “Support”

There are plenty of reasons to feel vaguely annoyed and Senator Inouye’s recent interview in Honolulu Civil Beat.  I, for one, particularly loathed the implication that people in the middle class are a tad selfish for feeling that they pay enough in taxes.  But for sheer muddling of a situation, it’s hard to beat his responses to the questions about the level of support for the Akaka Bill.  Here’s what Inouye has to say:

Mentioning Sen. Akaka calls to mind the issue of the Akaka Bill really not proceeding. What do you tell the people of Hawaii? This is an underlying issue that has to be addressed for the people of this state in some shape or form.

The vast majority of those who are well-aware, or have some understanding of the measure, are supportive. But this bill has been delayed and frustrated by the very ones who support it… (One person) would tell me, ‘you’re not doing enough’ and (another) will say, ‘I think you went too far.’

This time, there’s a difference. Akaka, OHA, the administration, they’re all singing one tune. It’s a big difference. The last time, OHA and Akaka didn’t see eye-to-eye on everything. The governor’s office … was not always for it. So under those circumstances, those in the Congress can say, ‘Well, your governor is opposed to it. So why should I be for it?’ Then somebody might come up and say, ‘Well that Hawaiian group is against it. They must know something that I don’t. I’ll follow them.’

This time, as of this moment, we’re in the same choir.

Is it possible to get the votes in the House to pass something like this?

With work, it can be done. Unless you start off with the assumption that ‘they’re a bunch of bums, they’re racist, and they’re no good, so therefore, why do anything?’

They’re good Americans. You just have to describe and tell them why.

Will Lingle’s Support be important? The current bill is not one she had agreed to.

But it is a reflection of some of the concerns she’s voiced, and I think she’s supportive. The general concept, she’s for it. And Im not suggesting that the bill that passed the Senate is necessarily the one that has to become law.

Is there a role the president can play in making this happen?

There’s a major role. He can say, on a personal basis, ‘I was born in Hawaii. Among my many friends are Native Hawaiians. I know something about their background and history.’ The presidential word carries weight.

And this is why it’s important to remind people that the battle over the Akaka Bill isn’t over . . . and won’t be for some time to come, regardless of how the public feels about it.  Polls consistently show that this is a controversial and divisive issue in Hawaii, and (if anything) that when fully informed of all the issues involved, the majority of Hawaiian citizens oppose the Akaka Bill.  But that’s not the picture being painted here.  Senator Inouye (along with the entire pro-Akaka Bill industry) continues to propagate the idea that we’re all on the same page out here.  Notice that he even obfuscates Gov. Lingle’s position.  It’s true that her administration supported a version of the Akaka Bill last year (much to our disappointment), but the version currently in the Senate–the one that Inouye is speaking of–is not the same.  In fact, it contains many of the problems that had led the Lingle Administration to raise questions about and oppose the bill in that form.  And while it’s true enough that President Obama has indicated support for the Bill, it’s probably worth noting that the President hasn’t deemed it worth expending any of his political capital on, regardless of how warmly he may feel about Native Hawaiians.

Obviously, Senator Inouye is parroting the pro-Akaka talking points on support for the Bill, but we need to remind Washington that they’re not getting the whole story.