Tag Archives: Native Hawaiians

Akaka Bill, OHA

Stacked Deck

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As I’ve mentioned before, there are Native Hawaiians who are opposed to the Akaka Bill.  This is not such an incredible notion.  After all, there’s no requirement that one must close one’s eyes to the problems in the Bill just because of one’s ethnic heritage.

And it is equally obvious that OHA supports the Akaka Bill.  Though the word “support” drastically understates their approach.  There are professional cheerleaders that would feel that OHA goes a bit overboard in its efforts to hype up the Bill.  It’s hard to say how much of their money and staff time they are currently devoting to lobbying for passage of the Akaka Bill, but it’s obviously a central priority.  And why wouldn’t it be?  There’s plenty of debate over the far-reaching impact of the Akaka Bill in Hawaii, but one thing that is certain is that OHA will benefit greatly.  Already entrenched as the elite governing “voice” of Native Hawaiians in Hawaii, OHA is situated to be hugely influential in implementing a new Native Hawaiian government.  Take that for what it is.  I’m not saying that OHA is anything less than perfectly aboveboard and transparent.  I’m just saying that they have a lot of money and a lot of political power and are lobbying to get more.

Of course, this has made some Native Hawaiians a bit uneasy.  So uneasy, in fact, that they filed suit against OHA, challenging its expenditures in support of the Akaka Bill.  Though it would seem reasonable that Native Hawaiians would like to see a little more balance in OHA’s political machinations (especially when using money from the Trust), it seems that the Average Kimo has very little say in how OHA can spend his money.  In Day v. Apoliona, the Courts interpreted the OHA mission in a way that gives the OHA Trustees enormous leeway in how they choose to fulfill OHA’s mission . . . up to and including the Akaka lobbying efforts.  It makes you wonder what wouldn’t be allowed as part of the OHA mission.  It seems like pretty much anything that uses the word “Hawaiian” is fair game.  What’s worse is that this closes another avenue for Native Hawaiians to question OHA’s expenditures and priorities.  So much for accountability.  Perhaps it’s time that Native Hawaiians start asking some hard questions about who they trust to administer their Trust.

Economy, OHA

Writ or Wrong

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So, what ever happened to the much-ballyhooed OHA petition to force money out of the Hawaii legislature?  I remember when they filed it with the Hawaii Supreme Court.  How could I forget?  I got two separate press releases, a print newsletter article, an e-newsletter brief, and multiple links to the story as picked up (and especially endorsed) by other media outlets.  No one would let me forget it.  As I recall, the spin went something like this: the Hawaii legislature was resistant to approving the payout plan for a $200 million settlement between OHA and the Lingle Administration related to ceded land revenues, so OHA petitioned the Hawaii Supreme Court to force the legislature to pass a law regarding this pay-out  In the OHA version of the story, the reason for the Legislature’s foot-dragging is unexplained, though one is free to conclude that the Legislature is just full of culturally-insensitive money-grubbing politicians.  (Not that this is necessarily totally inaccurate, but fairness compels me to point out that our current economic and budget woes make this a bad time for the legislature to try to carve out another $200 million for OHA.)

Anyway, it turns out that the State Supreme Court has ruled on OHA’s petition for a Writ of Mandamus, though in order to learn what happened, I had to read a small column in the lower right corner of page 7 of OHA’s monthly newspaper.  No email blasts for this one, I guess.  As you may have surmised, the OHA petition was denied based on (in the article’s somewhat mendacious words) the court’s, “understanding of the technical requirements for a mandamus action.”  Allow me to translate this into plain language: The court said no, based on the fact that the OHA petition was a bit of public grandstanding with no legal merit.

As I said in my earlier entry on this issue, to me, the big problem is not whether the state owes OHA the money or how they should pay.  I just continue to be amazed at the insensitivity of the powers-that-be at OHA.  After such a difficult economic year, these kinds of stunts don’t do much to bolster the agency’s image.  And trying to obscure the evidence of their miscalculation doesn’t help much either.

Gaming, Guest Commentary

Guest Series on Tribal Gaming (Part 7)

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Today, we have the final installment of Jim Marino’s series on Indian casino gaming in California (originally published in the Santa Ynez Valley Journal).  If you’ve been following the series, you’ve seen Marino build a case for the inherent problems of tribal gaming–from its end-run around initial state opposition to the damage it can cause a community or local economy.  But perhaps you thought that the federal government would catch any truly serious abuses of the system–especially considering the power of the BIA to regulate tribal gaming in the US.  Not so fast.  As Marino lays out below, the federal government is often unwilling or unable to regulate Indian gaming–a point to ponder for anyone who puts their trust in the compromises and limits outlined by the Akaka Bill when it comes to regulation of a new Native Hawaiian government.

WHY NO FEDERAL OR STATE AGENCY ENFORCES
LAWS OR RULES WHEN IT COMES TO INDIAN CASINOS
Santa Ynez Valley Journal
By Jim Marino, Guest Columnist
May 27, 2010

(Part 7)

This is the concluding article in a series of articles on Indian gambling casinos in California. In recognition of the ten-year anniversary of the legalization of some of the Indian gambling in California, I thought it was an opportune time to talk about its origins, the failures and inadequacy of Congress in enacting the Indian Gaming and Regulatory Act in 1988, and the political process and corruption involved in the negotiation and execution of the 59 original compacts, negotiated in California by now deposed governor Gray Davis who received massive contributions for his 1998 election from the illegal Indian casinos operating here before March 2000.

Once Indian gambling was introduced into California I went on to discuss the impacts on communities where they are located and some of the irony of tiny recognized “tribes” of one or two people, or perhaps a handful of members, often tracing only fractional descent [if any] to a real California Native Indian Band and claiming they were sovereign governments because they have been “recognized” by bureaucrats in the Bureau of Indian Affairs. These tiny “sovereign governments” pay no taxes and provide no services or infrastructure to their “tribe”. Rather they depend on the public services and infrastructure paid for by non-Indian taxpayers and the federal government for their welfare.

I discussed how these claims of “sovereignty” were not only used to evade paying the taxes needed to fund local public services and infrastructure, but also used to evade all the many laws enacted for the protection of the public, customers in Indian casinos and businesses, their workers and the environment and quality of life in the host communities.

I discussed the false economy of Indian gambling casinos that promise “jobs” and claim to be a destination “resort” bringing in tourist dollars when, in actuality these are unprotected, transient and generally low paying “jobs” that are created. This job creation is far-outweighed by the fact that the many gamblers losing money at an Indian casino, come from nearby communities where they are not spending those discretionary dollars in non-Indian businesses. These nearby non-Indian businesses often cannot compete with an Indian casino or business that pays no taxes, operates above the laws and which cannot be sued by customers, workers (or anyone else) for their misdeeds because of an outdated court-created legal doctrine giving Indian tribes, their casinos, businesses, agents and employees complete immunity from lawsuit no matter how outrageous their actions or conduct may be.

That in addition to siphoning millions of dollars in discretionary money from gamblers drawn to these casinos from nearby communities these patrons are gambling with money they often cannot afford to lose. That produces increases in crimes of theft, robbery and embezzlement, divorce and family neglect, financial problems, foreclosures and bankruptcies, gambling addictions, substance abuse, even increased suicides that are an inevitable result of the introduction of Indian casino gambling.

I quoted Warren Buffet who astutely pointed out a few years ago that there has always been gambling activities. The problem with Indian gambling casinos is that they have made gambling much more convenient so those losing vast amounts of money do not have to travel great distances to places like Las Vegas to do so.

Finally I discussed the inherent corruption and decay in the political and moral fiber that arises with Indian gambling casinos and which is virtually impossible to measure the negative impacts of that in dollars and cents and which is equally difficult to detect because addicts, corrupt politicians and drug and alcohol abusers rarely admit to such things like gambling away food and rent money or stealing money to gamble more. I knew a foreign car dealer in this area years ago (now deceased). A client and friend who had accumulated a comfortable retirement nest egg, only to lose it all at the Chumash casino. He was a proud man who never admitted to his gambling addiction. Within the past year alone several embezzlers have admitted to stealing thousands of dollars from local employers in this area to fuel their gambling habits at the Chumash casino. Even a reported armed robber arrested in Oxnard admitted to robbery in order to have money to gamble in Indian casinos including the Chumash casino.

In last week’s article I discussed the pervasive undue influence, insidious corruption and political pay-offs inherent with Indian gambling casinos and the avarice of Sacramento politicians ready and willing to accept those gambling dollars, much of which is paid quietly and secretly, funneled and laundered through Political Action Committees and political party channels. Some received in the form of perks, free concert and sports tickets, free chips, spa treatments and free rooms as set out in a recent Los Angeles Times story about the failure of 27 California legislators to report these Indian casino “gifts.”

Besides the failure to enact enough effective laws to control and regulate Indian gambling this concluding article discusses the failure of federal, state and local government to take any meaningful steps to curtail the improper and illegal activities occurring within casino tribes in the course of the daily operations. This is true even where there are enforceable laws, thereby rendering Indian casinos operations virtually lawless.

Here I will pick up where I left off last week. Section 2710(2)(B) of the Indian Gaming and Regulatory Act of 1988 spells out the only five categories where the net proceeds of Indian gambling casinos can be spent. They are:

(i) To fund tribal government operations or programs

(ii) To provide for the general welfare of the Indian tribe and its members

(iii) To promote tribal economic development

(iv) To donate to charitable organizations; or

(v) To help fund operation of local government agencies.

As I related in the last article, the Louisiana Coushetta and the Mississippi Choctaws gave now imprisoned lobbyist Jack Abramoff and his sidekick Michael Scanlon some $85 million dollars to “distribute” to various politicians in Washington D.C. to block the Alabama Coushetta and Texas Tigua tribes from opening a casino nearby that would have competed with their casinos. Besides participating in what amounts to these fairly obvious bribery attempts, where could any Indian tribe justify a scheme like that into any of the five exclusive statutory categories of 2710(2)(B) set out above? Nothing was done to the tribal officials, their lawyers and advisors for this scheme but Abramoff wound up in prison. The whole thing was spun as “overbilling” to the tribal governments by Abramoff and Scanlon. Ultimately the identity of the many recipients of this money was concealed and buried in a perfunctory “investigation” conducted by the Senate Indian Affairs Committee.

Three years ago Butch Crawford from Plymouth California and I met with the solicitors for the Bureau of Indian Affairs in their Washington offices. He presented the investigators with a copy of an application for more than $900,000 in grants monies for claimed improvements to be made to Indian fee lands in Amador County. Those lands were actually owned by a group of individual Miwok Indians from the same tribe but a different faction of the tribe. The application had been submitted by the newly elected tribal chairman who was at the time, the spokesperson for the other break away dissident group or faction of the same tribe. The original smaller faction consisting of these individuals and families actually owned the 40-acre parcel of land in fee divided amongst them individually. It was not reservation or trust lands it was privately owned. The $900,000 grant application was submitted by the larger dissident faction of the tribe. Those members owned no land at all, yet the application they submitted was for a grant for “physical improvements to tribal land.” At or about the same time this dissident faction, now constituting the majority of tribal members, was desirous of building a gambling casino. To facilitate that effort they made application to the B.I.A. to bring land near Plymouth Cal., [on which they held an option], into federal trust status to render it eligible for gambling operations. To fit into one of the exceptions allowing gambling on lands acquired by an Indian tribe after 1988 they asserted in that application that they were entitled to do so under the IGRA exception allowing for gambling on land acquired by a tribe after 1988, if they were a “landless” tribe. So for purposes of obtaining a large federal grant for “improvements” on non-existent tribal land, they succeeded in obtaining nearly a million dollars in federal grant money. At the same time and for purposes of trying to qualify to bring the Plymouth land into trust for a gambling casino they stated in their federal application they were landless! The investigative lawyers we spoke with at B.I.A. were not interested in how a group of Indians received a $900,000 grant for land improvements at the same time they applied to buy land and bring it into trust under a legal exception only available for tribes that had no land! The response of the B.I.A. investigative lawyers was that half their 60 or so investigators were still working on the Abramoff case and they didn’t have the manpower or time. This in the face of the fact the Abramoff case had already been concluded and nothing has happened in that case in the three years since that meeting.

In another more local instance, we had a meeting with an agent of the Federal Bureau of Investigation concerning the use of casino credit cards by Chumash government officials. Records indicated charges had been made, among other things, for a $10,000 “diamond ring, breast implants, a funeral,” luxury travel and other clearly inappropriate charges that were made, amounting to tens of thousands of dollars.

He informed us that unless it involved a theft of over $75,000 they would not even open a case file. I pointed out that if a robber went into a bank, pulled a gun and robbed the teller of $1,500 they would put 5 agents on the case and if it happened a few more times that same robber would make the 10 most wanted list. Nothing was ever done by the F.B.I. or anyone else about these improper credit card charges.

The current Chumash tribal chairman Vince Armenta went into the casino a few years ago and sat at a blackjack table with his son and some friends. He demanded chips from the dealer for he and his friends to play “on the house.” When the dealer offered only some one dollar and five dollar chips, he demanded “the greenies” [$25 chips], this was done despite the fact these actions would normally constitute a federal felony under Title 18 entitled “theft from an Indian tribe.” When angry tribal members reported this incident to the National Indian Gaming Commission (N.I.G.C.) investigator in Sacramento he said it was up to the tribal Gaming Committee to deal with it and basically shined the incident off. That tribal gaming committee was chaired at the time by the tribal Chairman’s brother, Raul Armenta and the committee later suspended the blackjack dealer for a week.

On another occasion, the cardroom manager at the time, Tony Armenta, was instructing a gambler who had won over $10,000 dollars playing blackjack, how he could avoid the reporting requirements for any cash transaction over $10,000, required by the United States Banking Act. He informed him he could do so by splitting the winnings with his girlfriend, bringing them below the $10,000 threshold, the casino security officer, called to the cardroom at the time, informed Mr. Armenta that was illegal. When nothing was done that same officer, a former police sergeant, reported the incident to the I.R.S. The agent did nothing except inform the Chumash tribal government, who then disciplined the security officer for reporting this incident to the I.R.S.

Even now when drug trafficking at the Chumash casino is rampant, the County Sheriff is doing little about it, although federal law provides that local and state law enforcement authorities have jurisdiction over all crimes committed on Indian lands. It is the Sheriff’s duty to police all Indian lands, not the security guards employed by the tribe. A few years ago the N.I.G.C. had promulgated a set of rules called the Minimum Internal Control Standards [M.I.C.S.]. The Colorado River Indian tribes filed suit and challenged these rules on the grounds the I.G.R.A. gave no authority to the N.I.G.C. to police class III, full scale casino gambling. Their jurisdiction only extended to the licensing of class II Bingo halls. The 10th Circuit agreed and those M.I.C.S. were held unenforceable.

The only authority left to enforce any rules and regulations other than criminal laws, was through the tribal state compacts. In California this has proven to be a standing joke. Neither the Governor, the Attorney General, or the inept and ineffective State Gambling Control Commission [which at last report had only 3 investigators], has ever done anything. Nor have effective rules been adopted or any enforcement of the compacts been undertaken by any state or federal agency.

A few years ago I testified in front of that Gambling Control Commission at the request of Cheryl Schmit [Stand Up for California] concerning a number of illegal and questionable practices occurring at Indian casinos including the Chumash casino. During a recess the Commission chairman and legal counsel, Herb Boltz, approached me and asked that I document the incidents testified to and send it to him, which I did in a 12-page letter complete with several exhibits and attachments. I did that within a week of that hearing. I never heard another word, not even a thank you for the effort.

Not long ago the Chumash casino brought in a roulette wheel. This is a clear violation of state law because Art. 4 section 19 of the amended Constitution only authorizes slot machines and house-banked card games conducted by Indian tribes by compact and on Indian lands. Use of roulette wheels are also a violation of the compact. One local group took a picture of it and sent it with a letter demanding enforcement of the law to the Gambling Control Commission. After several unanswered letters the State Gambling Control Commission finally wrote a letter to the Chumash tribal government that December, telling them they would be down to inspect the casino in March and suggested they remove the illegal roulette wheel before then.

Several tribes, apparently aware no enforcement action would ever be taken by their friends in Sacramento, brought in craps tables. Craps games are also illegal for the same reasons as roulette. The offending tribes asserted, apparently to the satisfaction of state regulators, that it really wasn’t craps after all because instead of rolling dice on the craps table they had two stacks of six cards each numbered 1 through 6 and the player would turn over one card from each stack constituting the numbers “rolled.”

At a meeting two years ago with George Skibine in Washington D.C. [at the time he was head of Indian Gaming at the B.I.A.] he is now acting commissioner of the N.I.G.C. We discussed a number of issues concerning illegal activities occurring in Indian casinos including tribes operating gambling casinos on ineligible lands. In the course of the discussion he postulated the following incredible and illogical policy which probably best explains why the federal government is doing nothing about all of the illegal activities involved in Indian casino gambling.

Chairman Skibine said this: Our [meaning the N.I.G.C. and B.I.A. and Department of Interior] authority and jurisdiction over Indian gaming comes from the Indian Gaming and Regulatory Act. If any Indian tribe is operating a gaming facility that is not on eligible Indian lands or otherwise not complying with federal gaming laws then it is outside of the provisions of the I.G.R.A. which requires such gambling to be on eligible Indian land in order to be authorized and sanctioned by that Act.

Therefore it is beyond our authority and jurisdiction to do anything about it because if it is outside of the Act it is outside of our jurisdiction. If Indian gaming not being conducted on eligible “Indian Lands” pursuant to the I.G.R.A. then it is up to the State in which it is occurring to enforce State laws against illegal gambling, if that gambling activity is against that state’s laws. This “hot potato” game is thus played when the state claims that enforcement is the responsibility of these federal agencies. The federal government then says it is the responsibility of the state or, as in the Armenta blackjack case, claim that it is a matter for the tribal government to resolve.

Likewise local law enforcement often passes the buck to the state or federal government, who passes the buck back to the state or perhaps to the tribal government. So the answer to the original question, why no one is enforcing the laws that do apply and which are enforceable, it is because no one is willing to do so.

The reasons they are not willing to do so are complex but generally fall into a few recognizable categories. The first is that it is politically incorrect and unpopular to take any action against “Indians” even if they are not really Indians at all, because the public has been indoctrinated about historic injustices to “Indians” centuries ago. Politicians don’t want to evoke the “race card.” The second reason is political corruption plain and simple. The casino Indians are funneling hundreds of thousands of dollars into the pockets of politicians and the bureaucrats who are responsible to regulate and police these tribal casinos and businesses and they are routinely ignoring numerous violations. The third reason is that many of the federal laws are poorly written, lack adequate specific enforcement provisions and directions and the tribal-state compacts that are in place are also poorly written. Even where they contain enforceable provisions, they are never enforced, like the 59 Gray Davis compacts in California. The last reason is that many of the federal agencies that should be taking enforcement actions in these areas are dominated by Indians, or part Indians, even wannabe Indians, or those who are simply “enrolled” members of some tribe someplace, and they ignore the law, stonewall inquiries and investigations, and exercise biased interpretations of the laws and rules that they have been given wide discretion over by enabling statutes, thereby thwarting any effective enforcement. As I mentioned in a previous article, where one would expect the media to expose this scandalous scenario, they don’t and they have haven’t done so, because they are afraid of offending their biggest and most profitable advertisers, Indian gambling casinos.

This concludes the series on Indian gambling in California, meant to be educational, because the more people who know and understand what has happened and is still happening, the more likely people will call for positive changes and perhaps elect ethical and responsible representatives and not politicians or corrupt bureaucrats holding out their hand for casino cash and perks to get elected or re-elected or appointed to the offices that they are supposed to hold to protect and fairly and impartially serve the 38 million people of California.

Akaka Bill, Economy, Gaming

Guest Series on Tribal Gaming (Part 3)

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Today, we continue with the third part of our guest series on the development of Indian casino gaming in California, by Jim Marino.  (This series originally ran in the Santa Ynez Valley Journal.)

Sometimes it seems as though the issue of gaming is an unspoken controversy that advocates of the Akaka Bill are desperately trying to avoid.  As though the fact that it is not allowed under the current version of the bill is a sufficient guarantee forevermore.  But, as today’s installment demonstrates, a state can move from no casino gaming of any kind to a flood of Indian casinos in a surprisingly short time–and with little to no real input from the public.  Those who are concerned about Akaka being the path to Hawaiian casino culture would do well to take note of California’s experience. . .

RESULTS OF I.G.R.A AND THE PASSAGE OF PROPOSITION 1A AND THE FLOOD OF INDIAN GAMBLING CASINOS IN CALIFORNIA
Santa Ynez Valley Journal
By Jim Marino, Guest Columnist
April 29, 2010

(Part 3)

The first week I discussed what led up to the enactment of the IGRA. Last week I wrote about all of the antiquated, ambiguous and contradictory aspects of federal Indian law and policy in existence, when the ill-advised Indian Gaming and Regulatory Act [IGRA] was enacted by Congress, in a feeble attempt to provide an economy for Indian tribes.

As you may recall from last week, the controversial Indian gambling law was enacted by Congress without even considering the impact the existing body of federal Indian law and policy would have. This resulted in the authorization of tax free, lawless and unregulated casino gambling by Indian tribes and related businesses in which patrons, workers and the nearby communities are, in effect, deprived of all their legal and Constitutional rights and cannot sue for injuries or damages occurring in those casinos and businesses. I also wrote of how that Act has also enabled these tiny often questionable tribes to make hundreds of millions in profits, while still collecting federal welfare and grant monies that are monies needed by real Indians still living on remote reservations and living in conditions of abject poverty.

This week’s article deals with how Indian gambling was legalized in California and some of the impacts of the IGRA and the Indian casinos it spawned in California, has had on nearby non-Indian communities.

To give Congress the benefit of the doubt, Congress created the only method that States had available to them in order to control and regulate Indian casino gambling under the IGRA. That mechanism was the requirement that prior to engaging in Class III gambling casinos the tribe and state government would have to enter into a compact (or contract). They did this by including section 2710 d.(3) in Title 25. Under that provision, Indian tribes seeking to engage in class III casino gambling were required to negotiate and have the affected state approve, a compact. If the state lawfully approved a compact, then it was lawfully in effect according to State law.

Following the enactment of the IGRA in 1988 many bands of Indians in California, some with only one or two members, began operating class II Bingo games with unlimited money pay-offs. The Santa Ynez Chumash built a cinderblock building as a “Bingo casino” funded at least in part by the Las Vegas singer Wayne Newton and other Las Vegas gambling investors and apparently did so under questionable circumstances. It soon closed down amongst rumors and controversy, but with a view toward reopening in the future.

Class II “Bingo” gaming under the IGRA does not require a tribal-state compact, only a license from the National Indian Gaming Commission [NIGC] and is in effect unsupervised gaming beyond licensing and annual audits. Before the Supreme Court struck down the provision in the IGRA, giving the tribes the right to sue the state when they claimed the State was not negotiating in good faith, California tribes threatened the State with several suits if the State did not negotiate compacts for full-scale Class III casino gambling. The California Constitution Art. 4, Section 19, prohibited full-scale casino gambling including slot machines, blackjack, craps, roulette and so forth.

Because slot machines generally make up 85 percent of the revenue any casino brings in, the tribes were threatening lawsuit if the State would not negotiate for slot machines and banked card games like blackjack. (Remember the Cabazon case discussion earlier. The State had the absolute right to refuse to allow all forms of gambling by any Indian tribe, as long as those types of games were also prohibited for everyone else in the state to operate.) Slot machines had been illegal in California for years and use, possession or transport was a violation of the California Penal Code.

One lawsuit brought by Indian tribes in the 1990s claimed the lotto terminals the State had licensed to bars and cocktail lounges all over the state were, in effect, state run “slot machines.” Therefore, the tribes claimed they had a right to install slot machines in their casinos. The court denied that assertion but was highly critical of the definition of “slot machines” set out in the California Penal Code. As a result, the state pulled all these machines from bars all over the state and stored them in a warehouse, where I believe they still sit today.

Many tribes like the Santa Ynez Chumash simply ignored the law prohibiting slot machines and the requirement of a tribal-state compact in 25 USC 2710 d (3) requiring such a compact before Class III gambling could be allowed. Then one night in 1995, the Chumash moved more than 600 slot machines into the cinderblock former Bingo casino and began illegally offering slot machines to the public and position player backed blackjack games. The installation of these slot machines also constituted a violation of the Johnson Act, a federal law prohibiting the unlawful transportation, use, procurement and possession of slot machines. After all, the delaying litigation was exhausted in 1997. The State Attorney General and federal authorities including the F.B.I. informed the illegal casino tribes like the Santa Ynez Chumash that they intended to raid them, seize the slot machines, all monies and other illegal fruits of the illegal gambling operations and even arrest the operators. The tribes then launched a public initiative-drive entitled Proposition 5 in 1998.

Proposition 5 was an initiative to amend the California Government Code to allow Indian tribes to operate slot machines on Indian lands in California. Besides sponsoring that initiative the tribes, many of whom were operating illegal casinos with slot machines at the time, like the Santa Ynez Chumash, pumped millions of dollars into an advertising campaign to depict pictures of poverty-stricken Indian tribes self-sufficient.

In addition to this advertising campaign, these casino Indians pumped millions into the campaign coffers of Grey Davis, a career politician who was running for Governor in 1998. In November 1998, Proposition 5 was approved by the voters and Grey Davis was elected Governor. Commencing in 1999, Gov. Davis began negotiating gambling compacts with California Indian tribes, all of which was done behind closed doors. None of the traditional power groups in California such as local governments, taxpayers groups, law enforcement organizations, environmental groups, trial lawyers, workers compensation and consumer lawyer groups, women’s rights groups, union and others were allowed the opportunity to participate in the discussions and influence the terms of these tribal-state class III gambling compacts.

As a result, the compacts Gov. Davis agreed to were weak, giveaway compacts with many provisions so poorly written that they were virtually unenforceable. These compacts provided no revenue at all to the state and made no provisions to mitigate the significant negative impacts the flood of Indian casinos that resulted would have, and subsequently did have, on local communities.

In the meantime, Proposition 5 was challenged in a lawsuit and in August 1999 the California Supreme Court ruled that Proposition 5 was unconstitutional because it only amended the Government Code not the State Constitution, which contained the prohibition on casino gambling like slot machines and house banked card games in Art. 4, sec. 19.

Undaunted by the Supreme Court’s striking down Proposition 5, Gov. Davis executed some 59 of these giveaway tribal state compacts and then had the State Legislature approve them in September and October 1998. He made no effort to determine if the tribes he was negotiating with, and granted gambling compacts to, were lawfully created Indian tribes or if the land on which their casinos or proposed casinos were to be sited were legally “Indian Lands” eligible class for III gambling under federal law. In fact, many of these questionable Indian tribes were on land or acquired land that was clearly not eligible to build and operate any class II or class III gambling casinos under the IGRA.

To remedy the fact that these compacts were executed and approved when there was no longer any legal authority to do so, the Legislature put a “Legislative initiative” on the ballot for March 2000 the following year at Gov. Davis’ behest, some 6 months after they were executed and approved. That initiative, called Proposition 1A, by its language proposed to amend the California State Constitution Art. 4, sec. 19, to authorize the Governor to negotiate future compacts with California Indian tribes. The voters were never informed that a vote in favor of Proposition 1A would, in effect, retroactively ratify the 59-weak giveaway, virtually unenforceable compacts that Gov. Davis has already signed without legal authority and which were approved at his instance by the State’s Legislature. It is not coincidence that so many State legislators also received hundreds of thousands of dollars in campaign contributions from these casino tribes, often funneled throu gh campaign committees and PAC’s with unassuming names. My favorite was the one calling itself “The California Native Peace Officers Association.” That PAC was funded by $5,000,000 million entirely from the Pechanga Indian Casino and the State Correctional Officers Union and was distributed to key politicians in Sacramento. The use of PACs is one of the ways politicians use to disguise receipt of gambling monies by disguising them through innocent-sounding groups. Once legalized in 2000 by Proposition 1A, the onslaught of Indian casinos in California began.

NEXT TIME: PART 4, THE EXPANSION OF “INDIAN CASINO GAMBLING IN CALIFORNIA AFTER PASSAGE OF PROPOSITION 1A AND THE NEGATIVE IMPACTS ON LOCAL GOVERNMENTS AND COMMUNITIES.”

Gaming, Guest Commentary

Guest Series on Tribal Gaming (Part 2)

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Today, we are continuing our guest series on the history of Indian gaming in California by Jim Marino.  Today’s excerpt (originally published in the Santa Ynez Valley Journal)  looks more specifically at how we arrived at the legal definition of “Indian”–at least as far as the federal government and Indian gaming regulation is concerned.  As accustomed as we generally are to the notion of an intrusive and exacting federal bureaucracy, it is shocking to learn exactly how loosely this term is interpreted.   Other items of note in today’s excerpt is the way that land is defined (or acquired) as “tribal land” for the purposes of casino construction and the liability loopholes that Indian casinos are able to operate under.

THE INDIAN GAMING AND REGULATORY
ACT OF 1988: A WELL INTENDED LAW GONE AWRY
Santa Ynez Valley Journal
By Jim Marino, Guest Columnist
April 22, 2010

(Part 2)

Last week I wrote about the history of Indian gambling and the 1987 landmark case of Cabazon Tribe v. California leading up to the hasty enactment of the IGRA.

The first mistake Congress made in trying to clarify for the states the impact of the Supreme Court in the Cabazon case was in the name of the Act itself. To me, games are checkers, chess, basketball, etc. The gambling industry came up with the name change, calling gambling games “Gaming.” They apparently hoped to shed the inherent stigma associated with gambling activities and transform gambling into what they classify as recreational entertainment.

If it were really a “game” then the visitors, who nearly always lose, would have the worst record of anyone competing in any “game” against the home team. Not only the fact that the odds of winning anything are so poor, it is hard to imagine that anyone could describe losing large amounts of money as “entertainment.” What Congress failed to realize, or perhaps intentionally ignored, was that when they enacted the IGRA, there was already in place a long and confusing set of laws, rules and case decisions loosely called “Indian Law.” Some of the obscure, often irrational and unintelligible provisions of this body of law would shock most reasonable people. The advent of Indian gambling, however, exposed this body of existing laws to widespread public scrutiny, particularly when the extent and application of these principals, are now being applied to the non-Indian public who frequent the expanding numbers of Indian casinos and other Indian businesses.

One would think the first simple question that Congress would have asked before enacting this controversial legislation is, “Who is an Indian?” More particularly before giving any Indian tribe the right to operate an essentially unregulated gambling casino, Congress would have also needed to understand “What is an Indian tribe?”

In the former case, an Indian is anyone who claims to be part Indian or who is a member of any self-styled “Indian tribe,” or in the eyes of the federal government, an Indian is whoever a recognized Indian tribe decides is an Indian. Once one of these often questionable tribes attains official acknowledgement status, the BIA never questions tribal government’s assertion or representations about who is a tribal member, who isn’t a member or who they decide to kick out as no longer members: a practice euphemistically described as “disenrollment.” Until relatively recently, there were not even any objective criteria to be applied by the BIA in making a determination to acknowledge or recognize who constitutes an “Indian tribe.” Ever since the adoption of at least some rules and objective criteria, as set out in 25 CFR part 83, those rules and criteria are, never the less, often ignored. So in a nutshell, an Indian tribe is whoever the federal government says is an Indian tribe.

That is why there are now more than 600 Indian tribes in this country, many with only a handful of members, some with only one or two and many with highly questionable, if any, fractional ancestry linking them to a real Indian. Since the advent of federal programs providing grant monies to “Indian tribes” and particularly since the advent of Indian gambling, there have been many more groups claiming to be Indians and seeking federal acknowledgment as a “tribe” or “band” of Indians.

In fact, Indian tribes like the so-called “Mashantucket Pequot Indians,” which started with “Skip” Hayward and a couple of relatives, parlayed a faux tribal recognition, into the billion-dollar-a-year “Foxwoods Casino” in Ledyard, Conn. They have set as an enrollment criteria, a 1/32nd Indian ancestry or blood quantum and it is no wonder that these tribal members literally came out of the woodwork and the tribal enrollment now exceeds 700. Having that minute a fraction of Indian ancestry, however, did not prevent them from owning and operating that billion-dollar-a-year gambling casino at Foxwoods, all done with the sanction of the Bureau of Indian Affairs and the National Indian Gaming Commission, just because there are and were no objective standards applied.

So there is no surprise that hundreds heretofore never heard of “Indians” and “Indian tribes,” are lining up for recognition and the right to own and operate lucrative gambling casinos, and hiring lobbyists and paying off politicians to grease the wheels of recognition in Washington.

Lobbyists like the now disgraced and imprisoned Jack Abramoff, whose assistance was instrumental in obtaining recent recognition for the Mashpee Wampanoag is now seeking to build a casino on or near Cape Cod, Mass. This is a recent federally recognized Indian tribe, which was determined by a federal judge to lack the very criteria for recognition needed, in a case decided during the 1970s, when the tribe tried to take over acres of land around Mashpee, Mass., including the massive multi-million dollar New Seabury country club and resort development.

Not only did Congress fail to clarify what constitutes an “Indian tribe” and who is an Indian when they enacted the IGRA, they also failed to clearly define what lands are the “Indian Lands” required by that Act, and which are the lands a tribe is required to have before they can build, own and operate any gambling casino.

This failure has opened the door to real Indian tribes as well as highly questionable tribes alike, to buy or acquire fee land usually, with money furnished by non-Indian gambling investors, and then claim it is eligible “Indian Lands” on which they can build and operate a gambling casino and can do so wherever they believe there is a lucrative non-Indian gambling market to be had in the area. This has fostered a practice now called “reservation shopping!”

Not only did Congress enact the IGRA without addressing these important issues and weaknesses in federal Indian policy, regarding who is an Indian, what constitutes an Indian tribe and what constitutes “Indian Lands” that are eligible for gambling casinos, Congress failed to address another important legal doctrine. A legal anomaly created by various federal court decisions giving Indian tribes, their officers, agents, casinos and other businesses, total immunity from lawsuit no matter how outrageous their conduct may be.

On top of that, with a few exceptions, Indian tribes and their businesses operate without complying with almost all state and local laws enacted for the protection of all customers, consumers, workers and the nearby communities based on the legal and political fiction they are somehow a sovereign political governmental entity. These numerous laws were enacted by virtually every state to protect workers and customers, the environment and quality of life for adjacent communities everywhere. However, they do not apply to Indian casinos and businesses. Finally, Indian tribes can evade all of the many state and local taxes, which are clearly needed to fund all the infrastructure and public services that these Indian tribes and their casinos and businesses uses regularly at the rest of the non-Indian taxpayer expense.

This common law [court-made] legal immunity doctrine barring injured and damaged persons from suing an Indian tribe, its casinos and business was described in 1998 U.S. Supreme Court case as having been created, “almost by accident” by the earlier Turner case decided in 1921 and was described by the Court as a legal anachronism in need of elimination. In that case, [Kiowa Tribe of Oklahoma versus Manufacturing Technologies, Inc.] after concluding this doctrine should be eliminated in this day and age where the Indian tribes own and operate lucrative gambling casinos, hotels, restaurants, amusement parks, marinas, shopping centers and other businesses – all open to the public and employing non-Indians – a majority of the court nevertheless concluded that it was up to Congress to fix legal anomaly created by a succession of cases decided by liberal federal judges in court decisions decided over the past 70 years.

Even though that Kiowa case was decided 12 years ago in 1998, and despite the fact the court informed Congress could simply amend the Foreign Sovereign Immunity Act, which federal law provides that any foreign country or business operating in the United States must obey all the same laws, pay all the same taxes and can be sued just like everyone else can be for their misconduct.

Because Congress has not acted, then to this day, customers who patronize any Indian casino or business, or anyone who works in an Indian casino and business, have no legal or Constitutional rights. In other words, they patronize these casinos and businesses at their own risk. As one Florida judge said, while reluctantly dismissing a woman’s valid lawsuit for injuries caused by an Indian tribe in their casino, “The law should require a large sign at the entrance to all Indian casinos and businesses warning people that are entering at their own risk.” When one thinks of the hundreds of state and local laws defining and regulating many things necessary for the public welfare and safety, one has to wonder what Congress was thinking, or perhaps not thinking, by passing a federal law allowing Indian tribes to own and operate gambling casinos and a wide variety of businesses that are not subject to state and local laws, are not taxable for all public services and infrastructure they use regularly and are immune from lawsuits by anyone who has been damaged or injured by misconduct of the tribe, its agents and employees or businesses.

Lastly when Congress enacted the IGRA, allowing some tiny federally acknowledged “Indian tribes” to make tens of millions in profits from gambling losses, they did nothing to amend the many existing laws that provide millions of dollars in tax monies via grants and welfare funds set aside for Indians in general. Consequently, these fractional “Indian” descendants and often questionable “tribes” making hundreds of millions of dollars in casino profits, still get millions in federal grant monies and welfare aid while thousands of real Native American Indians still live on remote reservations in conditions of abject poverty and get nothing more that the pittance they live on.

Clearly enacted by Congress with good intentions, but it is a law done badly awry.

NEXT TIME: “THE RESULTS OF THE I.G.R.A. THE PASSAGE OF PROPOSTITION 1A AND THE FLOOD OF INDIAN GAMBLING IN CALIFORNIA.”


Akaka Bill, Gaming, Guest Commentary

Guest Series on Tribal Gaming (Part 1)

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A big part of the debate over the Akaka Bill has revolved around exactly what rights and privileges will belong to the new Native Hawaiian “tribe” following reorganization, and with the issue of casino gaming and gambling long holding a contentious place in Hawaiian politics, it was inevitable that the proposed bill would have to address the issue .  Some believe that the prohibition on gaming in the Akaka Bill is sufficient to put the matter to rest, while others (including this blog) have pointed out that the language of the bill may not be the final word on the matter–especially with so much money at stake.

Under the circumstances, I thought it would be interesting to look at the history of the development of Indian gaming in another context (namely, California), and am therefore happy to introduce the first part in a series of guest columns by Jim Marino, an attorney from Santa Barbara who is an expert on the issue.  These columns were originally published earlier this year  in the Santa Ynez Valley Journal, and manage the rare feat of being both interesting and educational.  Enjoy:

HISTORY AND IMPACTS OF INDIAN GAMING IN CALIFORNIA
Santa Ynez Valley Journal
By Jim Marino, Guest Columnist
April 15, 2010

(Part 1)

It has been almost 10 years exactly since Indian casino gambling was legalized in California. Very few people know the history of Indian gambling casinos in California so this is a good time to review that history. I will do this is a five-part series covering the origin of Indian gambling in California up to the present time.

As public attitudes loosened toward gambling in general, many states began to expand legalized gambling. Betting on horse racing at race tracks had long been permitted. The only limitation was the use “bookies” or other off-track intermediaries to place bets, collect and pay off bets made on horses. Many cities also had a thriving underground “lottery” system usually called the “numbers rackets.”

People picked numbers and made a bet, the numbers were then selected often by using the winning numbers of horses running in certain races at a particular race track. Similarly, though probably illegal, Saturday night “penny ante” poker games were commonplace everywhere, and in some communities people engaged in shooting “craps” – a form of gambling using dice. Although many of these gambling activities were illegal, law enforcement placed very low priority on raiding illegal off-track bookie operations, or the “poor man’s lottery,” the numbers rackets, or Saturday evening poker games played for money usually occurring between friends and for relatively small amounts of money.

Then there were the full-on legal casino gambling venues which were limited to Nevada, Atlantic City, New Jersey and cruise lines and riverboats, where the full range of gambling games were allowed. These included slot machines, roulette, craps, blackjack and other house-banked card games pitting the gamblers playing those games against the house and not each other.

As attitudes toward gambling changed and more and more people saw these many forms of gambling as harmless, state and local governments took a second look at their laws strictly prohibiting most gambling games. Soon many states had state-run lotteries and allowed poker rooms or card clubs and even legalized off-track betting on horse races. Taking it a step further, many states allowed charitable groups to hold Bingo games for money, but licensed them and limited the amounts of money one could play and win and the hours and conditions of operation.

Meanwhile, the federal government had been trying for decades to find a way for the real historic Indian tribes to become self-sufficient and sustainable and doing so without eliminating the Indian tribal reservation system, which for decades had blocked the integration of Indians into mainstream America, particularly the mainstream of American economy.

Many tribes and particularly tribal governments resisted any change or attempts at assimilation, which they considered a threat to their tribe’s cultural preservation and a threat to the fiction that Indian tribes and their governments were “sovereign nations” notwithstanding the nearly total dependency of most tribes on the federal government.

Many of the 600 or so recognized tribes had only a handful of members and little land base. As Tim Giago, a noted Lakota Sioux writer, once wrote in an editorial, “Indians don’t need more welfare, they need a welfare to work program.”

Congress passed many laws in the struggle to improve a lot of reservation Indians and eliminate the massive bureaucracy that had been established, called the Bureau of Indian Affairs (B.I.A.), and its even bigger parent, the Department of Interior (D.O.I.).

Congress was loathe to eliminate the inherent separation and isolation created by the tribal reservation system. In most cases these federal laws and programs were ineffective. The real historic tribes of Indians often saw those assimilation efforts as an attempt to extinguish their respective cultures or impinge on what they considered to be a “sovereign status.”

Beginning during the late 1970s and early 1980s, Indian tribes in Florida and other states began offering Bingo for money as a tribal business and method of earning money.

Not long after those efforts began the tiny Cabazon Indian tribe located near Palm Springs asserted the right to offer Bingo games for money, and without any limitation on the amounts of money, conditions and hours of operation that applied to groups under California charitable Bingo laws. They also wanted to open a card club like those being operated under State and local licensing, but without the regulations imposed by the California Gambling Control Board and local jurisdictions. California refused to allow these Bingo games and card clubs, because the State feared it could not control such activities when it was occurring on Indian reservation lands.

A lawsuit entitled Cabazon Tribe v. California (Governor Wilson) was commenced and finally wound its way through the system and wound up before the United States Supreme Court in 1987. In that case, the U.S. Supreme Court divided California gambling games into two groups: Those games that were illegal and prohibited by everyone, everywhere in the state and those that were permitted like charitable Bingo, horse racing and card clubs. The court concluded that Indian tribes in California were entitled to operate Bingo, card games and other forms of gambling that were permitted to other non-Indians within the state.

They further concluded that because Indian tribes had historically been accorded a measure of self-government and control of their governmental affairs on their reservation lands, then when operating these permitted games they could regulate these games on their own – setting the rules and limits of play for themselves and need not follow California’s limitations.

On the other hand, the Court made it clear all gambling games that were prohibited to everyone within the State of California as a matter of strong public policy were likewise prohibited on any Indian reservations within the borders of California.

This was a fairly straightforward decision; however, it was poorly understood by many state and local governments all over the country, many of which thought this decision would open the floodgates of gambling in their respective states.

Consequently Congress moved quickly in what they thought would clarify the Cabazon case, and in October 1988 they enacted the Indian Gaming and Regulatory Act [the IGRA] 25 USC 2701 et.seq.

This Act divided Indian Gambling games into three groups: Class I was any traditional Indian games played amongst tribal members. Class II was Bingo or similar traditional games played on a card by marking a number of letters as they were randomly selected and called out or posted. These games were licensed and regulated by the National Indian Gaming Commission also created by the I.G.R.A. Class III gaming was the full-on casino style gambling like slot machines, “craps,” roulette, blackjack and other “house-banked” games where the players are playing against the house and not against each other. To be entitled to engage in Class III gambling games, the Indian tribe must have a tribal-state compact approved by the state and lawfully in effect under state law. As it later turned out, this federal law created more problems than it resolved.

Next time: The Indian Gaming and Regulatory Act, an example of a well-intended law gone awry.

Grants, OHA

That’s “Entertainment”?

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So, how often do you like to kick back and watch a little Pacific Network Internet television?  Yeah, me neither.

But would you make more of an effort if you knew that they were getting nearly a million dollars from OHA for the creation of a “Hawaiian-themed internet television station and web portal”?  It kinda makes you wonder what a cool million buys these days in the way of internet entertainment . . . aside from buckets of Farmville cash or enough “adult videos” to end up under permanent FBI surveillance, of course.

Curious as to what a Hawaiian internet TV station might look like, I checked out their website, and was confronted by . . . Puppies!  Adorable ones! In a shopping cart!  Also, canoeing wipe-outs and some footage of a party in Waikiki that didn’t seem interesting enough to click on.  In all honesty, it looked more like a creation of the Hawaii Tourism Authority than anything intended for Hawaii residents, much less Native Hawaiians.  And if this were a private enterprise, that would be no big deal.  I mean, I would question their business plan, but we live in a country where people are entitled to waste their own money in whatever way they wish.  And I would no more stop someone from starting a questionable business enterprise than from going to an Rob Schneider movie.  (Ok, that’s not entirely true.  I would probably at least try to urge them, out of basic human decency, to avoid the movie.)  But this is beside the point.  Because we’re not talking about private enterprise here.  We’re talking about money intended for the benefit of the Native Hawaiian people.  And we’re talking about a quasi-governmental agency that hopes to have a big hand in the proposed Native Hawaiian Reorganization proposed by the Akaka Bill.

The crazy thing is that we have seen plenty of media enterprises aimed at speaking primarily to one minority group succeed (BET and Telemundo come to mind, but there are others too).  But they succeed or fail in the marketplace by learning to speak to their audience and growing their audience in a profitable way.  Who is the Pacific Network speaking to?  The lack of advertising on the website suggests that profitability at this point is determined only by the success of their grant proposals.  If you were (or are) Native Hawaiian, would you consider this an effective way of reaching out or fostering the Native Hawaiian community?  Or is it just another OHA vanity grant that looks good on paper, but disappoints in reality?

Akaka Bill

Organizing Against Reorganization

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I am not a Native Hawaiian, nor do I play one on TV.  But, let’s say for the sake of argument that there was a proposal to create a new tribal government for us Hapa Filipinos.  There’s one or two of us in the islands, right?  And now, let’s say that there was a substantial trust and land value tied up in the issue.  (I know, I know.  This part may be hard to imagine, given that many of us have grandfathers who consider the family trust to exist in a coffee can in the sock drawer, but this is a hypothetical exercise.  I have a point, after all–I’m just kinda slow getting there.)  Anyway, being that I’ve never been in a room of more than two Filipino women who didn’t have an opinion on anything from the quality of the homily at church on Sunday to the proper way to make lumpia, I have trouble imagining that there wouldn’t be a strong push for public comment on the proposed Filipino reorganization.

So I find it hard to understand why we haven’t had opportunity for comment on the Akaka Bill yet.  This is the most transformative piece of legislation to hit Hawaii since we became a state.  (Heck, some people might say since the revolution.)  And yet, there’s no push for public hearings on it?  Well–let’s be fair here.  There certainly is a push for public hearings on the part of the public.  Strangely, the politicians involved seem to be more interested in keeping all the wheeling, dealing, and negotiations at a more exclusive level.  And if that’s not enough of an argument for hearings, I don’t know what is.

Therefore, even though I’m not the world’s biggest fan of online petitions (No, I am not going to stop watching TV today in order to send a message to Big Oil.  Burn Notice is on tonight, for goodness sakes!), I think that this one is a worthy one.  It’s a call to stop the Akaka Bill until the people of Hawaii (as well as Native Hawaiians in other parts of the country) get their opportunity to weigh in on the matter.  So click on this link and make your voice heard in the fight to  . . . um . . . make your voice heard.

Akaka Bill

Promises, (Com)promises

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It is, I confess, too easy to mock and criticize politicians.  Maybe it’s the endless weighing of polls and legacies and that finger held constantly to the wind.  Or maybe it’s the obfuscations, the justifications, and the ill-considered legislation.  But politicians do have to think about a lot of things that most of us never bother about.  I mean, do you have any idea how much time they spend fretting over what tie will make them look like a leader of people without conveying a privileged, upper-crust background?  It’s why they all go grey so quickly.

All of this to explain why Gov. Linda Lingle was in a pickle.  Supporting the Akaka Bill gets her grudging accolades from various normally critical groups and looks great on the ol’ legacy meter.  Opposing it . . . doesn’t really do much, politically speaking, except get her the temporary approval of those who secretly think that she’s an unreliable ally.

Oops.  Guess who was right?

As you may have heard, Lingle reversed her previous opposition to the Akaka Bill in a dramatic and widely-trumpted press release and letter to the Senate, explaining at length why she’s totally hunky-dory with the most radical piece of legislation ever to transform an entire state’s culture.  To be fair, I thought that Lingle’s reservations–primarily concerning whether members/leaders of the new Native Hawaiian government would be immune from certain Hawaiian laws–were valid.  And yes, it’s a good thing that they’ve been resolved.  Sort of.

But let’s not pretend that everything is better now.  Notably, one of Lingle’s reservations was not, “will this have enormous unforseen consequences for the economic and social health of my state.”  (See above rant about the concerns of politicians.)

Here’s the part that really gets me about the letter though–the hubris that seems to suggest that now that our illustrious Governor is on board, there’s nothing left to say on that matter.  Au contraire.  I have a lot to say.  Like, “It’s totally disingenuous of the Governor to say in her letter to the Senate that the Akaka Bill just brings Hawaii into line with the other US states that recognize Indian tribes.  This is a completely new and different situation–not the recognition of a tribe, but the creation of one out of a racially mixed former country.”  And, “Just saying that the Bill is constitutional doesn’t make it true.  There are a lot of people hoping to sue the U.S. if this is passed and use the unconstitutionality of Akaka to test other civil rights issues.”

Regardless of what Gov. Lingle’s press office claims, her approval hasn’t solved anything for those of us who truly understand the problems with Akaka.

Akaka Bill

Certified Hawaiian

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When you’re Hapa, you get used to people playing, “guess the ethnicity” with you.  Especially on the mainland.  (In Hawaii, the game is generally much shorter.  In part because one of your cousins will inevitably walk by and put an end to things.)  I actually don’t mind it though.  I’ve always liked the way that our racial/ethnic mix gives us a broad feeling of connection on the Islands.   Like we’re all in this together.  After all, even if you may not be Portuguese/Japanese/Filipino/Samoan/Hawaiian/Chinese/Haole/Etc., it’s a pretty fair guarantee that you’re at least related to someone who is.

And this leads us to one of the things that so puzzles me about how the Akaka Bill is supposed to work–namely, how do you even go about defining who counts as “Hawaiian Enough” to be part of a Native Hawaiian government.  After all, we’re talking about a culture that includes the concept of hanai adoption.  That’s about as far from a “one-drop rule” as it’s possible to get, culturally speaking.

But, of course, since we’re talking about laws and stuff here, there has to be a way to legally define who gets to play in a Akaka government.  But would you believe that, as the Bill currently lies, a significant number of those who would consider themselves Hawaiian wouldn’t count as such for the purposes of the Akaka Bill?  In fact, one analysis found that more than 73% of those who defined themselves as Hawaiian for the purposes of the census would now be counted as such for the purposes of the Akaka Bill.  Here’s why:

Under the conditions set forth in S1011, Section 3(12), for an Hawaiian to become a “Qualified Native Hawaiian Constituent” all five of the following conditions must be met:

  • (A) Must be direct lineal descendant of indigenous people living in Hawaii on or before January 1, 1893 or of a person eligible in 1921 for Hawaiian Homelands.
  • (B) Wishes to participate in the reorganization of the Native Hawaiian governing entity
  • (C) is 18 years of age or older;
  • (D) is a citizen of the United States; and
  • (E) maintains a significant cultural, social, or civic connection to the Native Hawaiian community, as evidenced by satisfying 2 or more of 10 criteria

Of the five, Parts (B) and (E) are the most likely to exclude Hawaiians from becoming “Qualified” to participate in the Tribe.  Part (B) most likely means excluding all persons who do not sign up for Kau Inoa.  The December, 2009 Kau Inoa Newsblog proudly announces: “Those who register in Kau Inoa will help shape the Hawaiian nation to come….We are happy to share that at the end of November 2009, 108,118 people were registered in the Kau Inoa Native Hawaiian Registry….”

The 2000 US Census counted over 401,000 Hawaiians in the US.  A 2004 estimate by the US Census Bureau counted 279,651 Hawaiians in Hawaii, down from 283,430 in 2000.  The out-migration of Hawaiians is a direct result of the lack of economic opportunity created by OHA-funded shake-down artists and their environmentalist allies.  The Kau Inoa number is less than 27% of all Native Hawaiians, but it gets worse.

Rule (E) excludes many of the roughly 122,000 Hawaiians living outside of Hawaii.  Exceptions are made for for college students, military personnel, federal employees (such as Congressional staffers) and their dependents,  Hawaiian Homelands beneficiaries, their children and grandchildren.

By making “Native Hawaiian Membership Organization” into the following two separate rules, an activist or other OHA operative who has been a member of two Native Hawaiian Membership Organizations thereby meets the “two of ten” qualification in Part (E):

  • (viii) Has been a member since September 30, 2009, of at least 1 Native Hawaiian Membership Organization.
  • (ix) Has been a member since September 30, 2009, of at least 2 Native Hawaiian Membership Organizations.

The bill does not contain a list of such organizations, leaving the door open to all sorts of games as some organizations are accepted and others are not.

I don’t know about you, but I find the notion of having to “prove” your Hawaiian-ness by virtue of what clubs or activities you belong to be . . . mind boggling.  Especially when you consider that the Akaka Bill includes a loophole for those who might not have Hawaiian blood, but are “regarded as Hawaiian” by the Native Hawaiian community (whatever that may mean).  By that logic, a haole with the right connections can be part of the Native Hawaiian government while a 100% local, ethnically Hawaiian guy who likes to keep to himself might not.  Seriously.  Only politicians and huge sums of money can combine to create something so ludicrous.  Don’t tell me that’s what most people are thinking of when they say that Native Hawaiians deserve some kind of recognition.