Tag Archives: Hawaiians

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.

 

 

 

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.”

A Lack of Resolution

Over on Hawaii Reporter (which I swear doesn’t do anything to get all these mentions here except produce a broader and more fearless variety of opinions than the vast majority of other Hawaii news sources), Ken Conklin has an interesting take on the most recent effort of the Hawaii Legislature to rewrite history.  The article is worth reading in its entirety (not least of all for the impassioned discussion of the ultimate effect of these endless muddled legislative exercises in pandering), but here are the highlights:

House Concurrent Resolution 107 (HCR107) in the Hawaii legislature would establish “a joint legislative investigating committee to investigate the status of two executive agreements entered into in 1893 between United States President Grover Cleveland and Queen Liliuokalani of the Hawaiian Kingdom, called the Liliuokalani assignment and the agreement of restoration.”

The investigating committee would be empowered to “Issue subpoenas requiring the attendance and testimony of the witnesses and subpoenas duces tecum requiring the production of books, documents, records, papers, or other evidence in any matter pending before the joint investigating committee; … Administer oaths and affirmations to witnesses at hearings of the joint investigating committee; Report or certify instances of contempt as provided in section 21—14, Hawaii Revised Statutes …”

….

The purpose of such an investigation is not merely to do academic research on an obscure historical question from 118 years ago. The purposes are to claim that the U.S. had an obligation to restore Liliuokalani to the throne; and to claim that the obligation of the President of the United States continues to this day to restore the Kingdom of Hawaii to its former status as an independent nation.

Throughout my nineteen years in Hawaii I have seen the legislature repeatedly pass bills and resolutions encouraging some sort of race-based Hawaiian political entity, or sovereign independence. Year after year: Let’s pay for an election of delegates to a Native Hawaiian convention, and years of their travel expenses for meetings, so they can choose the tribal concept or write a constitution for an independent nation; let’s pass a resolution in 2002 asking the United Nations to investigate the legitimacy of Hawaii’s admission to statehood in 1959; let’s support the Akaka bill in Congress; let’s proclaim April 30 of every year a permanent holiday called “Hawaiian Restoration Day”; let’s create a state-recognized tribe with a state-only version of the Akaka bill; let’s transfer $200 Million in land or money to OHA; etc. etc. ad nauseum.

Why? All these legislative actions have accomplished is to stir up racial animosity, feelings of entitlement, etc. Hopes are raised for some people who want land and money from the rest of us, and then those hopes come crashing down. Over and over again. Remember the Aloha Airlines plane that had a huge hole ripped out of its side in mid-flight, due to metal fatigue caused by too many takeoffs and landings? That’s what resolutions like this are doing to all Hawaii’s people, and to ethnic Hawaiians in particular.

NB: Be sure to read the whole article to see the main points of Mr. Conklin’s testimony against the Resolution.

Fact Check on the Journal

The Wall Street Journal has a nice little feature piece about the effort to restore the furnishings in Iolani Palace.  As is so often the case with features, it’s heavy on the neat-o factor, and maybe not-so-rigorous on the historical fact checking.  As a general rule, I like the Journal.  And I like the whole historical restoration thing.  I once spent an entire Saturday glued to an Antiques Roadshow marathon.  So I get the whole Hawaiian-heirlooms-might-be-in-your-attic approach of the piece.  But I also can’t let them slide on historical revisionism, and unfortunately, there’s a bit of inaccuracy to the piece, primarily this paragraph:

But much of the 19th-century palace’s custom-made furniture, oil paintings and other treasures disappeared after January 1893, when a small band of businessmen overthrew the monarchy.

The people of Hawaii need to take a little more pride in and responsibility for the democratic revolt that led to the end of the monarchy.  Monarchies are lovely romantic things when you get the leisure of looking back on them, but most of us prefer the liberty and rights that flow from our representative democracy.  Anyway, thanks to Ken Conklin, whose addition to the comments section clears up this slight inaccuracy:

Contrary to the article’s description, the Hawaiian revolution of 1893 was not done merely by a group of American businessmen.  About 1500 men had met in the Armory a couple days earlier to rally for the revolution, and the largest contingent among them were Portuguese.  Half of the members of the Committee of Safety, who led the revolution, were native-born subjects of the Kingdom.

It is certainly true that there was vandalism at the Palace, which is typical of every revolution worldwide.  And later the revolutionary Provisional Government held an auction and sold off many of the treasures from the Palace — but the Palace and its contents were the property of the government both before and after the revolution, so the government had every right to sell them.  The ex-queen’s private home a couple blocks away was never vandalized, and none of her private property was stolen.

Aloha for All, 1840; No Segregation, No Discrimination

On Decemeber 22, 2010, Hawaii’s own Senator Akaka addressed the US Senate to proclaim his continuing support of the so-called Akaka bill which expired without action as the senate closed for the 2010 year.

With all respect to the senator, the Akaka bill should never again see the light of day.  Americans nationwide have objected to the efforts of Hawaii politicians to divide our nation on the basis of race, and it should never have been seriously considered, much less enacted into federal law as Akaka desires.  Our nation’s people should just remain joined and integrated under our governing documents in a society defined by friendship, fellowship, respect for each worthy individual, patriotism and common purpose.  Most particularly, none of the people of the United States or of any of the 50 states should ever live under law that segregates or  discriminates  based on bloodlines.

How terrible is the irony that Akaka supporters try to use racial preferences as the solution to the “wrong” they say was caused by racial discrimination.  Of course, this an unconscionable misrepresentation of history–and unworthy of Hawaii’s tradition as well.  The Kingdom of Hawaii was many things, for better or worse, but one thing it was definitely not was a state based on racial divisions and distinctions.  But those who stand to profit by sewing racial discord in the islands would like to rewrite history and create a culture of division to replace our spirit of Aloha.

That spirit is one recognized the world over as one uniquely Hawaiian:  “Aloha for All – – Hawaii’s gift to the world rooted in the first constitution of the kingdom of Hawaii in the year 1840.”  The preamble to that constitution starts with this sentence “God has made of one blood all races of people to dwell upon this earth in unity and blessedness.”  That is the translation used by the US Commission on Civil Rights (which also opposed the Akaka Bill as unconstitutional and antithetical to the mission of promoting civil rights).  If only we could turn away from the racial politics that have exploded around the Akaka Bill and better reflect the sentiment of that Preamble.

Weekend Updates

It has been a great couple of weeks for our friends at Hawaii Reporter, who even scored a Drudge mention and a Tonight Show one-liner out of their coverage of the Obama family vacation (see below).  So how about a quick round-up of things that cost us money?

John Carroll has an examination of the Jones Act and how it damages the Hawaii economy.  You know, the Jones Act debate isn’t exactly glamorous.  Most people can’t even get past the fact that it’s about maritime law before getting a tad sleepy.  But if you live in Hawaii, this is important.  Ever wondered why you practically need to a second mortgage in order to buy a box of cereal?  The Jones Act is the answer.  A small group of politicians and activists have been trying for a long time to get a Hawaii exemption to this federal law, and it’s time that their reforms got a fair hearing.

And then there’s the analysis of how the current Administration’s policies are going to mean higher gas prices.  Not good news for those in the Islands–where even when things aren’t bad, mainlanders blanch at our average per-gallon cost.  And no, the answer is not light rail.  Higher fuel prices trickle down, and it’s about more than just what you pay at the pump.  You pay those higher gas prices when you buy bus tickets, toilet paper, and just about anything else.

And finally, a lighter note.  Here’s the Tonight Show monologue with the mention of the Obama vacation cost.

More on Native Hawaiian Companies

For those who were intrigued by the Hawaii Reporter investigative work on the rise of Native Hawaiian Companies (and their somewhat incestuous relationship with government spending and granting), there’s more to be learned via the rise of Alaska Native Corporations.  A recent piece from the Alaska Dispatch sends about the success (and questions it raises) of the ANCs that gives a clue to where Hawaii may soon be headed:

In the face of explosive growth, and the huge financial successes and sometime extreme abuses that have occurred along the way, Alaska Native Corporations have come under heightened scrutiny, most notably by U.S. Senator Claire McCaskill (D-Mo.), who has pushed to end the contracting privileges of ANCs. It seems that for every success story about a company that’s used 8(a) contracting as a springboard to independence, there’s a concern raised somewhere about someone abusing the system. To combat the negative press and defend the privileges of indigenous people to fully engage their rights as uniquely situated business owners who are working for not just a handful of individuals but for entire communities, advocacy groups like Native 8(a) Works have also cropped up.

. . . .

This year news stories in Alaska and beyond have chronicled questionable contracts, high paid executives, and whether the money is making it back to the people Alaska Native Corporations are congressionally mandated to help — the impoverished people and communities of their region of origin. Most recently, articles by the Washington Post and ProPublica demonstrate how imperfect and thorny the intersection the of the U.S. government’s tribal obligations with politics, wealth and poverty, corporations and shareholders, taxes and accountability, can be.

Native Hawaiian organizations and their subsidiaries have only in the last several years begun to navigate the government contracting privileges that Alaska Native corporations have spent two decades learning to fully engage. If NHOs continue to follow the path cut by ANCs, they may well encounter great success. Should they find it, they can expect plenty of tough questions about what they’re doing, how they’re getting it done, who’s making money and who’s not, and whether taxpayers are getting a good value along the way.

A Little Sunshine

Government transparency is one of those things that everyone says they support, but not many people give much thought to.  But when you think about it, it’s pretty powerful stuff.  Without transparency, a necessary check on government is gone.  The media does its best, but with limited resources, a need to turn a profit, and other important demands on their time, they aren’t able to be a constant check on the tendency of government to conceal information from the public.

Yes, “conceal.”  Some people might find that melodramatic, but you’d be surprised to learn how often government agencies try to avoid even the simplest and most banal disclosures.  And when you think about it, there’s a certain logic to that.  The public tends to get a little touchy about how their tax dollars are spent, and that’s something that can be worrying to a certain kind of bureaucrat.  Rather than discuss why they felt the need to spend hundreds of dollars on catering, they’d rather people just didn’t know about it.

And that’s why it’s important that we support efforts like Grassroot Institute’s newest transparency project: Hawaii Sunshine.  The newly launched website highlights all state expenditures and state salaries–it’s a treasure trove of information for any Hawaii citizen who is looking to really learn about where our tax dollars go.  Even better, the site encourages people to participate in the fight for greater government transparency by giving people the ability to submit “Pork Alerts” with comments and information on specific expenditures on the site.  And a forum lets visitors continue the discussion amongst themselves.

In truth, the Hawaii Sunshine site is a great toy.  I just spent 20 minutes searching for different kinds of vendors and seeing how much money was being spent on restaurant meals, dry cleaners, taxi rides, and so on.  So check it out, and (if you’re like me) try your best not to shout “I want my money back!” at your computer screen.

What Are the ‘Returned Lands’ of Hawaii?

By Jere Krischel

In an article titled “What are the ‘Ceded Lands’ of Hawaii?” written for Honolulu Civil Beat on 11/08/2010, Professor Van Dyke makes some critical errors in his assessment of both the history and the law.  While acknowledging the Supreme Court’s rejection of the “Apology Resolution,” he still relies on it for his “legal” justification.  While quoting from the Admissions Act of 1959, he omits a key clause that differentiates between “should” and “can.”  But most problematically, Van Dyke intimates that “Native Hawaiians” were somehow legally separate during the Kingdom period in Hawaii, and that the public lands that were returned to the State of Hawaii have some sort of racial lien on them.

The first red flag we should recognize in Van Dyke’s writing is the use of quotes around the term “illegal.”  In order for something to be illegal, we must have several things – a concrete body of law which was violated, a judiciary to arbitrate the dispute, and finally, a finding after a trial presenting both sides of the issue.  Without these necessary requirements, we are substituting personal opinion for legal fact.  Although PL103-150 (aka “The Apology Resolution”) uses the term “illegal” several times in describing the Hawaiian Revolution, it does not identify any specific law which was violated, any judiciary with jurisdiction over the Hawaiian Revolution of 1893, nor any trial which was conducted to determine guilt or innocence.

So can the “Apology Resolution” unilaterally declare the Hawaiian Revolution of 1893 illegal?  Absolutely not.  Ex post facto laws are explicitly forbidden by the U.S. Constitution –  one cannot simply pass a law which declares someone’s prior actions illegal.  Neither does the legislature have the authority to declare someone guilty as a matter of legal fact.  In recognition of this and the basic principles of statutory construction, the Supreme Court on March 31, 2009 firmly established that the “Apology Resolution” had no legally binding effect, stating that the “‘whereas’ clauses cannot bear the weight that the lower court placed on them.”

The second major mistake Van Dyke makes is a subtle, but important distinction between something that is necessary, and something that is allowable.  Van Dyke states that the 1959 Admissions Act demanded that “revenues from these lands should be used” for native Hawaiians.  This is a misread of the Admissions Act, which provided limits on what the revenues could be used for, not mandates.  The specific text of the Admissions Act reads, “such lands, proceeds, and income shall be managed and disposed of for one or more of the foregoing purposes…their use for any other object shall constitute a breach of trust…”

This means that the State of Hawaii could spend every penny on public education, and not a dime on the development of farm and home ownership.  Or, it could decide to spend everything on public improvements and provisions for public use of the lands, while not funding anything else.  Any combination of “one or more” would be legal according to the Admissions Act.  The only two things that would be a breach of trust would be to spend none of the revenue at all, or spend any of the revenue on a non-permissible use, such as supporting private schools, or the development of automobile ownership.

With his words Van Dyke echoes a misinterpretation of the Admissions Act that OHA has been intentionally cultivating for many years, using it to justify a 20% share of revenue from the public lands of the State of Hawaii to native Hawaiians (although OHA specifically ignores the blood quantum definition used in the Admissions Act).  By their rationale, exactly 20% should be allocated to farm and home ownership, exactly 20% should be allocated to public schools, exactly 20% should be allocated for public improvements, and the last 20% should be allocated to make public lands available for public use.  But the Admissions Act, as plainly read, has no such mandate whatsoever.

The most insidious misrepresentation Van Dyke makes, however, is regarding the citizenry of the Kingdom of Hawaii, and the chain of ownership of the ‘ceded’ lands.

From its inception, the Kingdom of Hawaii was a multi-racial nation.  High Chief Olohana, otherwise known as John Young, fought beside Kamehameha the Great to establish the unified Kingdom, and was the grandfather of Queen Emma herself.  The first constitution of the Kingdom of Hawaii in 1840 stated boldly that all people were “of one blood,” and established equality between all races over 100 years before the modern civil rights movement in the United States.  Characterizing the Crown Lands or Government Lands of the Kingdom of Hawaii as being dedicated to only one race is a desecration of both the spirit and the laws of the Kingdom from which they came.

With his synopsis, Van Dyke perpetuates the fiction that the ‘Ceded Lands’ are still ‘ceded.’  But the truth is, they are now more properly called  the ‘Returned Lands.’  The Crown Lands and Government Lands of the Kingdom of Hawaii were consolidated into the Public Lands of the Republic of Hawaii in 1894.  These public lands (about 1.8 million acres) became the ‘Ceded Lands’ in 1898, when the Republic ceded them to the United States on the condition that the revenues and proceeds, except for the parts used for the civil, military or naval purposes of the U.S., “shall be used solely for the benefit of the inhabitants of the Hawaiian Islands.”  Van Dyke acknowledges that this created a “special trust”, but he carefully omits that the ‘Ceded Lands’ Trust was established for all the inhabitants of the Hawaiian Islands, not just for those of a specific ancestry.

When the Territory of Hawaii was established in 1900 by the Organic Act, it reiterated that the public lands were acquired by the United States in “absolute fee” under the Annexation Act, free from “all claim of any nature whatsoever.”  These ‘Ceded Lands’ finally became the ‘Returned Lands’, when the lands were returned to the public of the State of Hawaii as per the Admissions Act of 1959.  The circle was finally complete – what had originally been the public lands of all the people of the Kingdom of Hawaii, became the public lands of all the people of the State of Hawaii.

Placing exclusive racial claims upon the ‘Returned Lands’ is an abuse of the trust placed in the State of Hawaii, and a violation of our Constitutional guarantees of equal protection.  No matter how many times these false claims are repeated, and no matter how many myths are invented to justify such race-based distinctions, they will never become true, and will never be justified.  All of the inhabitants of Hawaii, regardless of ancestry, have a powerful claim to the ‘Returned Lands,’ as clearly demanded by the Organic Act and the legacy of the multi-racial Kingdom of Hawaii.

The Immunity Question

When Governor Lingle announced, with all due flourishing, her newly acquired support for the Akaka Bill, a big part of her new-found appreciation for divisive race-based legislation was in the compromise over criminal immunity that was theoretically being added to the bill.  (I say “theoretically” because–while that language was added to the House version of the Bill–there is no guarantee that it will survive to a final version.)  Lingle was understandably concerned that Native Hawaiians under a new tribal government might be immune from prosecution of criminal activity under state law.  Before anyone starts planning to discover a Native Hawaiian ancestor and set up a counterfeiting ring, I should point out that tribal governments can still prosecute such crimes (and are generally expected to do so).  In short, the question of immunity in a new Native Hawaiian government was a critical one.  So at least that has been addressed, right?

Not so fast.

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

On November 29, 2005, Robert Gutierrez, an employee of the Pueblo of Santa Clara in New Mexico, was driving a car owned by the Pueblo on Pueblo business.   That business took him outside of the tribal boundaries of the Pueblo, into a town in the state of New Mexico.  It was while he was off of tribal land (though still in a tribe-owned car on tribe-business) that Gutierrez made an improper turn into oncoming traffic and caused a car accident.  Peggy Reed and Timothy Reed, a husband and wife who were injured in the accident, sued Gutierrez and the Pueblo for damages arising from their injuries. The Pueblo and Gutierrez didn’t deny their part in the accident–they merely argued that the doctrine of tribal sovereign immunity protected them from the lawsuit.  And sadly for the Reeds, the court agreed, dismissing their lawsuit–a decision that was then upheld by the New Mexico Court of Appeals.  And all based on the concept of tribal sovereign immunity.

How does this relate to the Akaka Bill?  Well, if the bill is passed and Native Hawaiians are provided with the same tribal immunity, it brings an unfair and divisive element to our islands.  If you are crossing the street with your spouse/husband/grandmother, and you’re hit by a Love’s truck doing some deliveries, you can sue Love’s and the driver for your injuries.  That’s how you can recoup the cost of your medical bills, lost pay at work, chronic pain, and so on.  However, under the post-Akaka immunity scenario, if that truck is owned by the Native Hawaiian government and driven by one of their employees, you’re just out of luck.  Tribal sovereign immunity prevents you from being able to sue the Native Hawaiian government for your hospital bills, your Grandmother’s wheelchair, the 3 months of work you missed, or anything else.

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