Tag Archives: Senate

Akaka Bill

Aloha to Senator Akaka

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Senator Akaka has announced that he will not be running for reelection at the end of his current term.  For his years of service to the Islands, we thank him and bid him a fond farewell.

However (and you knew this was coming, didn’t you?), the fact that Senator Akaka is a nice old guy who’s retiring doesn’t really change anything about the legislation that bears his name.  Senator Akaka’s retirement should have no bearing on the future of the Akaka Bill.  Since his announcement, it has not become a better idea, less divisive, or more constitutional.  It is still bad for Hawaii.  And yet, believe it or not, you will hear (and already have if you read the Maui News) the argument that we should push for passage of the Bill as a final salute/gesture of respect to the retiring Senator.  When you think about it, it’s hard to come up with a more absurd reason to support legislation.  One wonders if that argument could possibly change anyone’s mind.  (“Sure, I thought it was a flawed and bad law, but since he’s retiring, heck, let’s do him a solid and pass it anyway.”)

In fact, here at 4HawaiiansOnly, we’ll make the counter-argument.  Senator Akaka has provided many years of service to Hawaii, which we respect even if we didn’t agree with his political positions on some issues.  But let’s not sully his legacy with a knee-jerk passage of a law that will become a hornet’s nest of litigation, constitutionality questions, and economic and racial strife for Hawaiians.  He deserves better than that.

And on a slightly different note . . . am I the only one wondering what we’re going to call the Native Hawaiian Reorganization Act once Senator Akaka has retired?  (Because there’s way too much money and political power at stake for the bill to retire along with the Senator.)  Maybe we could have a naming contest for it.  I suggest either “The Slow Deterioration of Hawaii Act” or maybe just “Bob.”

Contracts, Economy, Hawaii

Hearing on Native Hawaiian Contracting Preferences

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If you’ve been following our notes on questionable contracting preferences for Native Hawaiian Organizations and Alaska Native Corporations, you’ll know that a few hardworking journalists have been raising questions about these practices, most notably in Hawaii Reporter and the Washington Post.  (Hawaii Reporter has found that Native Hawaiian organizations have been able to use this special status to gain $500 million in reduced-competition or no-bid contracts since 2005.)

Well, finally someone is responding to the questions being raised about the fairness and efficacy of this system.  Senator Inouye has called for hearings on the SBA contracting preference rules.

Oh no–not to pursue the issue about the propriety of the preferences.  Don’t make me laugh.  Senator Inouye would cut taxes or dance nude on Leno before doing that.  No, Senator Inouye is calling for these hearings in order to give supporters of the preferences (especially the organizations that benefit from them) the chance to publicly justify and defend them.  Ain’t democracy grand?

Akaka Bill, Hawaii Legislature

The State’s Akaka End Run

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For those who thought that the change in Congress meant a respite from the imminent threat of the Akaka Bill, think again.  In what might be something of a desperation move, the legislature has introduced a bill that purports to recognize a Native Hawaiian tribe through the state.  (Essentially, a state version of the Akaka Bill–you can read the full text here (House version) and here (Senate version).)

I can pick on all sorts of things in this–the historical revisionism, the doubtful claims, the questionable legislative findings–but we’ve been down this path many times before.  And you may be thinking that there’s little chance it would pass, or that it would likely fail a test of constitutionality.  But that’s not the point.  This is pure politics at work.  If the legislature can pass the bill, then it operates as a powerful argument in Washington that Hawaii is united behind the Bill–and frankly, the Inside-the-Beltway types tend not to pay much attention to what we are doing out here, so they would likely take that at face value.  (And OHA is going to be spending far more money telling them that’s the case than any opponents to Akaka would be able to raise.)  There is, however, a bright side.  If the state bill were to fail, that would make Congress less inclined to take up the Akaka Bill again.  So, if this is an issue you care about, this is a good time to contact your state legislator and share your views.

Akaka Bill

Omnibus Luau

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I don’t know why we should be surprised that Senator Inouye is so accomplished at adding pork to the federal budget.  After all, if there’s one thing we love out here, it’s a luau.  But even the most liberal spender might blanch at the provision that Inouye just attempted to slip into the notorious Omnibus Spending Bill:

NATIVE HAWAIIAN RECOGNITION STUDY AUTHORIZATION
SEC. 125. The Secretary of the Interior shall, with funds appropriated for fiscal year 2011, and in coordination with the State of Hawaii and those offices designated under the Hawaii State Constitution as representative of the Native Hawaiian community, including the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands, and the Attorney General of the United States, examine and make recommendations to Congress no later than September 30, 2011, on developing a mechanism for the reorganization of a Native Hawaiian governing entity and recognition by the United States of the Native Hawaiian governing entity as an Indian tribe within the meaning of Articles I and II of the Constitution.

Allow me to cut through the legislation-ese:  This provision grants an unspecified amount of money for a study (made in cooperation with OHA and the Department of Hawaiian Home Lands) on implementing the Akaka Bill constitutionally.  If it weren’t for the fact that it’s a blatant pork project, one would be tempted to say something like, “Hey, since you’ve been pushing for this for years, don’t you think it would have been good to address this earlier?”  However, given the nature of politics and the truer meaning of this project, perhaps the best response would be, “Hey, you sure have a lot of nerve funneling money to the two biggest supporters of this legislation to produce a ‘study’ that will support it.”

Akaka Bill

Akaka’s Civil Rights Problem

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So much of the argument for the Akaka Bill is couched in Civil Rights terms–we are given to understand that to oppose it is to somehow oppose the rights and privileges of Native Hawaiians.  In fact, one of the most pernicious historical fallacies surrounding the former Kingdom of Hawaii as it relates to the argument for the Akaka Bill ca be found in the way that Akaka supporters blithely ignore the multi-ethnic make-up of the Hawaiian government at the same time as they push for the wholesale creation of a race-based “reorganization.”  In light of this sensitive question, it might be interesting to examine where some of the nation’s experts on matters of civil rights stand on the Bill.

Would you be surprised to hear that they oppose it?  It’s true.  On Dec. 7, 2010, the United States Commission on Civil Rights delivered a letter to key Congressional leaders reiterating their opposition to the Akaka Bill. If you’re interested, you can read the letter in full here.  (And the earlier, more detailed letter it references can be seen here.)  Without equivocation, the USCCR expresses its opposition that any attempt made to attach the Native Hawaiian Reorganization Act to a spending bill this session.  In addition, the letter states that the changes that have been made or proposed to the Act are insufficient to overcome the constitutional concerns that have been raised, and reiterates the Commission’s opposition to the Bill.

What is the source of the Commission’s opposition?   The reasons given should be familiar to most of those who have made a careful study of the legislation and its possible consequences: that Congress lacks that constitutional authority to thus “reorganize” ethnic groups into dependent sovereign nations without a strong history of self governance; that doing so will set a dangerous precedent; that it should not be used as an attempt to shore up race-based benefits threatened by recent court decisions; and that it is contradictory to the history of the Hawaiian government.

Above all, the opinion of the Commission makes it clear that the questions of race that surround the Akaka Bill are far more complex than Akaka’s supporters would like to admit.  It’s as though, in their efforts to help one ethnic group, the pro-Akaka lobby has deliberately ignored the fundamental principles of civil rights.

Akaka Bill

Transparency?— Not with the Akaka bill

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Yesterday there was much talk in Washington, DC that Senator Inouye was planning to attach the Akaka bill (presumably the latest version after major changes) to the Senate Omnibus Spending bill later in December. That would mean that would mean that it would pass without hearings or any other vetting. Indicating that the possibility was real, four seasoned U. S. Senators released statements deploring the idea. See press release here. At about the same time, Hawaii Reporter reported the story and quoted Peter Boylan, Senator Inouye’s spokesman, as saying Inouye was not planning such a move and reaffirming Inouye’s 2009 statement that attachment to an appropriations bill would be “nonsensical”. See text here.

Next was Robert Costa at NRO who reported Senator Inouye told NRO that he would like to bring the bill forward, but “it depends on if we can work out something with amendments”. He then quoted the Senator “We’ve been working on this for over a decade now….. No one can say we’ve been hiding this”. That remark prompted a response from Steven Duffield here.

If you are not confused, you should be. But here is the bottom line: there is no transparency here. GRIH stands for transparency in government. Hawaii’s people do not know anything substantive about this bill and people in government are keeping them in the dark.k

Before statehood in 1959, Hawaii had a Plebiscite. Approval was 94+%. Now a secret “nonsensical” attachment will skirt that? Walk your talk, Senator Inouye.

Akaka Bill

The Immunity Question

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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.

Akaka Bill

Bar None

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The American Bar Association is currently lobbying in favor of the Akaka Bill, having sent a letter this week to every US Senator in favor of its passage.  This is much less impressive than it sounds.   Much like The Simpsons or David Lee Roth, the ABA is a shadow of its former self, living off the credibility of a name that too few have realized no longer carries any guarantee of quality or professionalism.

So when did the ABA jump the shark?  It’s hard to say . . . it’s really one of those incremental things.  Until one day you wake up and they’re applying purely political considerations to their evaluation of judicial nominees.  Among those people who follow such things, it’s common knowledge that the ABA no longer has any credibility as a neutral arbiter of constitutional interpretation or judicial ability.  Now, it functions more like a mouthpiece for the left wing of the Democratic party.  Take the aforementioned letter to the US Senate on the Akaka Bill.  One might imagine that the American Bar Association would present a neutral evaluation of the constitutionality and possible objections to the bill.  Don’t make me laugh.  In essence, it’s little more than a distillation of the same arguments presented by the pro-Akaka Lobby.  In fact, it bears such a similarity to an OHA column that one hopes the ABA didn’t spend too much money to produce such a propagandist rehash.

Of course, that’s how the game is played nowadays . . . bias disguised as neutral analysis is par for the course in modern politics.  It’s just a shame that such politics-as-usual methods are preventing a true debate on the merits of the bill and its possible impact on Hawaii.

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.”


Economy, Taxes

Account(in)ability

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Imagine for a moment that you had a few thousand dollars in loose change and bills behind the cushions of your couch, in your old jacket pockets, a spare wallet or two, and spread out through a few pairs of pants.  How big a jerk would you be in this situation if you then went to your best friend, told him you were totally broke, and asked to him to give you money to pay your rent?  If you answered, “No more a jerk than your average local politician,” you win.  Congratulations!  You truly understand the nature of Hawaii politics.

According to a recent report from the Grassroot Institute of Hawaii, the state has more that $1.4 billion in unspent excess funds sitting in “special funds” accounts–several of which have long been noted by the state auditor for repeal.  What is a “special fund”?  In short, it’s a little niche set-aside of state money for some specific purpose–say, public art education–funded through anything from state license fees to legislative appropriations.  You may recall that the 2009 Legislative Session included a finance bill that gave the Hawaii director finance authority to “raid” these special funds if necessary to pay government expenses.  This, not unnaturally, got some of us wondering exactly how much money there was available in these state special funds.  In light of the nearly relentless efforts to raise taxes and raid our wallets, the knowledge that there are untold millions of state dollars sitting around in untouched “special funds” is just a wee bit infuriating.

Thus, the Grassroot Institute launched its own investigation into the extent of Hawaii’s “special funds”.  You can read the full report here, but some highlights include:

  • In a review of 20 State Department reports, they found 186 accounts identified as special funds.
  • This accounts amounted to a combined excess balance of $1,412,357,203.
  • Divided equally among the population of Hawaii, these combined excess balances have a refund value of $1090.47.
  • The Hawaii Department of Transportation was the worst offender, with $582,449,161 reported as unspent, while the Hawaii Health Systems Corporation had the smallest excess at $34,837.

Really, how outrageous is the situation when the smallest, most responsible excess is still more money that many Hawaiians make in a year?  An economist once pointed out that there are four ways to spend money: 1. You can spend your own money on yourself, in which case you look for the best possible value in quality and price; 2. You spend other people’s money on yourself, in which case you look for the best quality and damn the price; or 3. You spend your money on other people, and look for the best value in terms of price and might compromise on value; and 4. You spend other people’s money on other people, and to heck with quality, value, price, or anything other than getting home from work a little earlier than usual.  Most government spending–especially as practiced in Hawaii–falls into Category 4.  We get nothing but sob stories from every possible state representative about lack of revenue.  We get tax increases and “Furlough Fridays” and guilt trips about the plight of government workers.  And all this time, they’ve been hoarding funds to the tune of $1.4 billion.  It boggles the mind.