New version of Akaka bill introduced March 25, 2009 -- multiple layers of deception


SUMMARY (letter to editor submitted to several Hawaii newspapers on March 27, 2009):

The Akaka bill never authorized gambling. But everyone knew tribes can get casinos; so Akaka decided to soothe worries by inserting protections against gambling. In previous years the Civil Rights Commission, Department of Justice, and House Judiciary Committee were worried about more important "normal" consequences of tribal recognition including: takeovers of government and private lands; jurisdiction over criminal and civil law for both members and non-members; zoning; taxation; labor rights; need for time limit for final settlement of historical grievances; etc. The original Akaka bill never mentioned those things, and neither does the latest version. But experts warned about terrible consequences, forcing Akaka to put protections into the bill. All protections have now been stripped out because Akaka hopes a sympathetic President and larger Democrat Congressional majority will help enact this dangerous bill without those protections. Apparently Governor Lingle's only worry is gambling. So Akaka restores the gambling protection to distract us from the more dangerous issues. Shibai! In any case the basic concept of racial separatism in the Akaka bill is so unconstitutional and morally repugnant that no amount of "protections" on various topics can make it acceptable.

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On March 25, 2009 our Hawaii Congressional delegation introduced a new version of the Akaka bill, barely seven weeks after introducing the previous version, and before any committee hearings were held.

What the heck happened?

The short answer is that the Hawaii delegation hopes to make it seem like they have compromised by prohibiting the Akaka tribe from gambling; but in reality they are using gambling as a distraction to divert our attention from the large number of far more important protections they have stripped out of last year's Akaka bill. And they have not actually prohibited gambling. Also, by introducing the new version with new bill numbers instead of following the usual procedure of amending the old bill numbers, they have avoided a dangerous (for them) referral to the House Judiciary Committee where the bill's unconstitutionality would be explored.

The version introduced on February 4 had bill numbers S.381 and H.R.862. The content was the same as the bill nearly enacted into law in 2000.

From 2001 to 2008 the Hawaii delegation had felt forced to make amendments because of strong objections from the U.S. Department of Justice, the U.S. Commission on Civil Rights, U.S. House Judiciary Committee's Subcommittee on the Constitution, numerous U.S. Senators, and dozens of commentators in the national media.

But in February 2009 all the accumulated protections added to the bill were thrown into the trash. An explanation of many of those protections and why they were important is at
http://tinyurl.com/d2k82v

The Hawaii delegation decided that President Obama's support for the bill, plus larger Democrat majorities in both houses of Congress, would ensure passage of the most powerful possible version of the Akaka bill without any of the restrictions previously inserted.

The new version introduced on March 25 has new bill numbers S.708 and H.R.1711. The only change is a new section which allegedly prohibits the Akaka tribe from having gambling casinos. Full text of the bill is at
http://tinyurl.com/csavja

Hawaii's people need to understand that the restriction on gambling has nothing to do with protecting Hawaii -- its purpose is to overcome the objections of Senators from other states, and Indian tribes, who fear that the Akaka tribe could open competing casinos in those states.

A short look at the history of the gambling issue in the Akaka bill will make clear the deception that's happening with regard to the more important issues. The underlying question on all topics is whether the Akaka tribe will be able to use obscure federal laws (unknown to most people and even most lawyers) to do things even in the face of strong objections from government officials in Hawaii and other states. A related question, not explored here, is whether the Akaka tribe will be able to use political power and money to pressure or bribe state government officials to do things which the people don't like, as has happened often on the mainland (sovereignty allows tribes to spend millions on lobbying and contributions without regard to campaign spending laws). Whatever the bill does not explicitly prohibit is likely to actually happen, either by the tribe forcing it upon the states through obscure federal laws or else by pressure and bribery of government officials who refuse to put the issues on the ballot for a vote of the people.

The original Akaka bill in 2000 said nothing about gambling. Senators Akaka and Inouye repeatedly said don't worry because Hawaii prohibits all forms of gambling anyway, so the Akaka tribe could not have a casino. But Senators from casino states knew better. They knew that federal Indian law would allow a federally recognized Akaka tribe to open casinos in their states EVEN THOUGH THE AKAKA BILL DID NOT SPECIFICALLY AUTHORIZE GAMBLING. So they demanded that Akaka/Inouye explicitly prohibit the Akaka tribe from gambling. As a result, by 2004 the bill (S.304) included a single sentence on gambling: "Nothing in this Act shall be construed to authorize the Native Hawaiian governing entity to conduct gaming activities under the authority of the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.)."

But of course IGRA is not the only way a tribe can get a casino. Akaka/Inouye knew that very well, because they had spend decades serving on the Indian Affairs Committee. They hoped other Senators with less expertise might not be aware that the prohibition on using IGRA would not block the Akaka tribe from having casinos. But some of those Senators weren't quite so dumb as Akaka/Inouye hoped, and demanded stronger language to block the Akaka tribe from having casinos. The result was that by 2008 the gambling language in the Akaka bill had grown much stronger, reflecting some of the other ways tribes can get casinos. This is the language from 2008 that has now been added to the March 25 version of the Akaka bill:

"The Native Hawaiian governing entity and Native Hawaiians may not conduct gaming activities as a matter of claimed inherent authority or under the authority of any Federal law, including the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) or under any regulations thereunder promulgated by the Secretary or the National Indian Gaming Commission. ... The foregoing prohibition ... on the use of Indian Gaming Regulatory Act and inherent authority to game apply regardless of whether gaming by Native Hawaiians or the Native Hawaiian governing entity would be located on land within the State of Hawaii or within any other State or Territory of the United States."

This very extensive language might still not be strong enough to prevent the Akaka tribe from getting a casino, either in Hawaii or on the mainland. Some Senators were apparently fooled by the one-sentence prohibition on IGRA in 2004, even though they sit on the Indian Affairs Committee and have lawyers specializing in Indian law advising them. Maybe everyone but Akaka/Inouye will be fooled by the stronger language now in the bill. But it's interesting that another provision of the 2008 bill remains missing from the March 25, 2009 bill:

"... Notwithstanding any other provision of law, including but not limited to part 151 of title 25, Code of Federal Regulations, the Secretary shall not take land into trust on behalf of individuals or groups claiming to be Native Hawaiian or on behalf of the native Hawaiian governing entity."

That sentence is very important for the gambling issue as well as many other issues, because taking land into trust is one of the ways a tribe gets to build a casino on it. The absence of that sentence in the latest version of the bill will allow the Akaka tribe to establish reservations, to have gasoline stations, liquor stores, tobacco shops, and department stores exempt from regulations, labor laws, zoning, income and excise taxes, etc. while competing against highly regulated and taxed businesses right across the street. And of course even if the Akaka tribe is prohibited from using federal Indian law to force a state government to allow certain things to happen, there is no language in the bill to prohibit the tribe from reaching an agreement with (bribed) government officials to do things without ever conducting a referendum to get approval from the voters.

Akaka/Inouye deceptively say the Akaka bill does not authorize any of those things. True. It's other federal laws that authorize those things as soon as the Akaka bill creates the Akaka tribe -- laws that very few people have ever heard of, including state Legislators, Governors, and Attorneys general; and even U.S. Senators.

So now consider the deceptiveness of what Senator Akaka said in the extended version of his press release of March 25 posted on his Senate website: "The bill does NOT allow Hawaii to secede from the United States. The bill does NOT allow private lands to be taken. The bill does NOT create a reservation in Hawaii."

Of course the bill itself does not empower Hawaii to secede from the United States. But it might very well allow that, and it certainly does encourage that. Consider the second half of Section 11 now put back into the Akaka bill after it had been removed eight years ago because it was such a red flag: "Nothing in this Act is intended to ... affect the rights of the Native Hawaiian people under international law." Hundreds of ethnic Hawaiians, including some very prominent attorneys and Ph.D.s and Princesses, have been loudly proclaiming for many years that the U.S. is belligerently occupying the still-living Kingdom of Hawaii, contrary to "international law."

Of course the bill itself does not directly authorize private lands to be taken, but neither does the bill prohibit that. Of course the bill does not directly create a reservation in Hawaii, but neither does the bill prohibit that; and the absence of the sentence prohibiting taking lands into trust would seem to encourage the creation of "Indian country" reservations.

Senator Akaka says that even though his bill did not authorize gambling, people were worried about gambling, so he put the language against gambling back into the bill. Well then, why not include language prohibiting secession? How about language prohibiting the Akaka tribe from using condemnation or assertion of aboriginal land title to confiscate private land? How about language prohibiting the Akaka tribe from creating "Indian country" reservations, or asserting criminal or civil jurisdiction over non-ethnic-Hawaiians or over ethnic Hawaiians who refuse to join the tribe? (for example, child custody cases in a divorce, breach of contract disputes between the tribe and outside businesses, etc.)

Before concluding this essay, it must be noted that the March 25 version of the bill was introduced in an unusual way, for the purpose of evading the scrutiny of a House subcommittee. Normally when a bill already has been submitted, even a major change in language is done by means of "an amendment in the nature of a substitution" which might partly or totally delete the old language and replace it with the new language. But in this case, the March 25 version was introduced as though starting from scratch, with the result that there are new bill numbers. The March 25 bill in the House, H.R.1711, was only "Referred to the House Committee on Natural Resources", whereas the February 4 version H.R.862 had been "Referred to the Committee on Natural Resources, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned."

At no time during the nine year history of the Akaka bill until February 4, 2009 was it ever turned over to the jurisdiction of the House Judiciary Committee in addition to the Natural Resources Committee (which handles all Indian legislation). The reason for that unprecedented assignment on February 4 was unclear. Perhaps it was done because on two previous occasions the Judiciary Committee had gone far out of its way to express opposition to the bill because of its unconstitutionality, even though the Judiciary Committee would not have had jurisdiction in the normal course of events.

James Sensenbrenner (R,WI), Chairman of the House Judiciary Committee, wrote a letter on July 19, 2001 to Speaker Hastert asking that the bill either be killed or else referred to his committee for hearings because of grave concerns that it is unconstitutional and because of the stealth maneuver that had been used to pass it on a voice vote with only a handful of Representatives present, the previous year. Perhaps because of that letter there was no further action on the Akaka bill during the 109th Congress. The letter effectively killed the bill. See Congressman Sensenbrenner's letter at
http://tinyurl.com/49p55

On July 19, 2005 a hearing was held before the House Judiciary Committee, Subcommittee on the Constitution, even though the bill was bottled up in the Natural Resources committee and would not otherwise have come before the Judiciary Committee. The hearing on July 19 was entitled: "Can Congress Create A Race-Based Government? -- The Constitutionality of H.R.309/S.147". For information about this hearing, including transcripts and audio tapes of testimony and findings, see
http://tinyurl.com/c3kg9

On March 25, 2009 Senator Akaka made a short speech while introducing the latest Akaka bill (Congressional Record, pp.S3797-S3798). He tried to fool his colleagues by saying: "This bill benefits from the input received during the nine congressional hearings, including six joint House Natural Resources Committee and Senate Indian Affairs Committee hearings, five of which were held in Hawaii. The bill introduced today provides a constitutionally sound foundation for us to build upon."

Hey, wait a minute!

This bill benefits from input during nine years? No it doesn't. It's the same bill that existed back in 2000, except for the gambling restriction. Nine years worth of important amendments providing protections for the people of America and Hawaii have been trashed.

There were five joint House/Senate committee hearings held in Hawaii? No, there was one hearing, held Monday through Friday August 28-September 1, 2000 (5 days) at the Blaisdell Pikake room, where the only committee members present were the bill's sponsors Inouye, Akaka, Abercrombie, and Mink, plus American Samoa Delegate Eni Faleomavaega. Furthermore, independent reporter Bob Rees (Honolulu Weekly), who attended all five days, wrote that sentiment was 9-to-1 against the bill but that the Hawaii delegation lied to their Washington colleagues that sentiment was overwhelmingly favorable.
http://tinyurl.com/d8nsco
and

http://tinyurl.com/dllfsz

"The bill introduced today provides a constitutionally sound foundation for us to build upon"? Not according to Judiciary Committee Chairman Sensenbrenner in July 2001, and not according to the testimony and conclusions of the Subcommittee on the Constitution in July 2005, cited above.


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