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The Akaka Bill (what it is and why it is dangerous -- by Malia Hill, senior policy analyst for the Grassroot Institute of Hawaii, January and February, 2012)


** Malia Hill, senior policy analyst for the Grassroot Institute of Hawaii, published this essay in two parts on January 20 and February 24, 2012. The contents of the two parts are consolidated here by Ken Conklin, although some of the formatting looks different.

http://new.grassrootinstitute.org/wp-content/uploads/2012/01/InPursuit_3.pdf
In Pursuit, No. 3, January 20, 2012
Grassroot Institute of Hawaii

The Akaka Bill (Part 1)

By Malia Hill

Few issues have defined the last few decades in Hawaiian politics as completely as the Akaka Bill, or more formally, the Native Hawaiian Government Reorganization Act. At most a fringe issue only a few decades ago, it has now grown to cast a lasting shadow over the state’s social and political make-up, and will likely do so for decades to come.

The Grassroot Institute of Hawaii has long been a critic of the Akaka Bill in its various incarnations, not least because of the lack of consideration of the probable long-term results of its enactment. While none of us have a crystal ball that can reveal to us all of the consequences of any legislation, such a sweeping and transformative action as that envisioned by the Akaka Bill will undoubtedly leave a permanent mark on the state. In its capacity as a champion of small government and individual liberty, the Grassroot Institute has raised serious ques-tions about the wisdom of the many versions of Native Hawaiian Reorganization that have been proposed, and will continue to do so. However, it is incumbent upon us to lay out the basis of these objections and explain why we are so concerned about the Akaka Bill and its probable effect upon Hawaii, its people, and its economy.

What is the Akaka Bill?

The name “Akaka Bill” is something of a catch-all term for the various proposals for creation of a separate Native Hawaiian government, most generally along the lines of Native American tribal governments. Often known as the Native Hawaiian Government Reorganization Act (or similar), the many different versions of the Akaka Bill have var-ied in their particulars (most especially when proposed with compromises meant to address the various objections to the Bill), but generally include at least:

* The establishment of some form of sovereign government for the purpose of organizing/governing those defined as “Native Hawaiian.”

* Some attempt to address land transfer to a Native Hawaiian governing entity and the sub-sequent legal relationship between any Akaka-based government entity and the US government.

As can be expected with such a potentially complicated and sweeping item of legislation, many of the previous versions of the Akaka Bill addressed a number of related issues, from the question of whether a new Native Hawaiian government will be allowed to establish casinos to questions about immunity to local statutes.

What many people may not realize is that the creation of a Native Hawaiian government is not simply an “aid” program of sorts for Native Hawaiians. And, while they may have faint notions of the reservation system associated with Ameri-can Indian tribes, few have considered what the impact of a similar government in Hawaii might be.

There is, in addition to the federal legislative efefforts at creating a Native Hawaiian government, a Hawaii state version of the Akaka Bill, passed by the legislature and signed by Gov. Abercrombie in 2011. At the time of its passage, the measure met with little fanfare, as it lacked the ability to confer federal recognition on any Native Hawaiian government, but did authorize a state agency (the Office of Hawaiian Affairs) to begin the creation of a “roll” of Native Hawaiians that would presumably be needed at some point in order to create a defined tribal/government membership.

In general (and due, no doubt to the unique historical considerations present at the time that the Republic of Hawaii became a U.S. territory), most versions of the Akaka Bill have stopped short of fully embracing the Native American tribal model. However, it should be noted that a recent iteration of the Akaka Bill, proposed as an add-on to an appropriations measure in October 2011 by Senator Inouye, lacked any of the previous versions’ compromise measures and simply authorized the Secretary of the Interior to recognize Native Hawaiians as a federally-recognized Indian tribe, basing the tribe’s membership on the aforementioned state legislation. It is worth noting that this is the most radical of the recent Akaka proposals, as it contained no provisions for future Congressional or state action to limit or define the reach of the newly created Native Hawaiian tribe. (For a further discussion of the implications of federal tribal status, please see Part 2 of this In Pursuit series, to be published on February 17th, 2012.)

Why is the creation of a Native Hawaiian tribe more complicated than other indigenous American groups? In part the question touches on the unique history and culture of Hawaii.

Historical Considerations and the Definition of “Native Hawaiian”

The history of Hawaii, from monarchy and republic to territory and statehood, has become infused with political bias and controversy -- a regrettable situation that has only intensified with the advance of the Akaka Bill. Because, while the Akaka Bill purports to create a Native Hawaiian Government in the mold of the American Indian tribes, one must acknowledge that there are significant historical differences between the two that undermine and confuse the rationale for Akaka’s passage and necessity.

The most important difference to note is the fact that the sovereign Hawaiian government that became part of the United States was not (even during the time of the Monarchy) composed exclusively of those of ethnic Hawaiian descent. Hawaii then, as now, was a multi-ethnic melting pot, with Chinese, Filipinos, Caucasians, and the like all able to claim that they were Hawaiians. Because much of the rationale for creating a Native Hawaiian Government revolves around the existence of a historical sovereign Hawaiian government, the fact that said government was not defined by bloodline or race is telling. It both undermines the claim that the Akaka Bill is anything other than a backdoor attempt at a racial entitlement program aimed at ethnic Native Hawaiians, and creates serious questions about attempts to define who should be eligible to participate in a new Native Hawaiian government.

Historical revisionists and Akaka die-hards might respond that the question is not so much the ethnic makeup of the citizenry of Hawaii at the time of annexation, but rather the manner of annexation and the fact that (prior to the overthrow of the monarchy), leadership of the Hawaiian government was firmly in the hands of Native Hawaiians. Yet this still ignores pertinent historical considerations. For one, annexation of Hawaii was not the simple “takeover” that many envision, but a carefully negotiated arrangement between the two governments that left Hawaii (and its citizens) with a series of rights and privileges that other territorial citizens might envy. The overthrow of the monarchy is another hotly debated issue (and for a full and fascinating account, I recommend Thurston Twigg-Smith’s Hawaiian Sovereignty: Do the Facts Matter?, but one fact that cannot be ignored is that Native Hawaiians served on both sides of the overthrow, as did Caucasians and other non-Hawaiians (many of whom held prominent posi-tions within the Kingdom of Hawaii). Thus, any attempts to justify the Akaka Bill based on history is fundamentally flawed.

Moreover, history further demonstrates a serious difficulty in defining who should qualify as a “Native Hawaiian” for the purpose of participating in a new Native Hawaiian government. Even if we were to ignore historical precedent and define it purely by quantum of Native Hawaiian blood (a process that comes with its own constitutionality issues, see below), there still remains the question of “how much is enough” and who determines it. In the end, most proposals depend upon the creation of a board or committee that would be the arbiter of who is qualified to participate, which raises its own issues of ethics and influence. For example, several Native Hawaiian groups, disappointed with the way that other exclusive groups have managed the lucrative Native Hawaiian trusts, oppose leaving such power to the same insiders.

Currently, the likelihood is that any Native Hawai-ian Government created through the federal government will turn to the state legislation passed in 2011 to determine qualification to participate. That legislation empowered the Office of Hawaiian Affairs to begin to compile a roll of eligible Native Hawaiians through the Native Hawaiian Roll Commission. The state legislation defines eligible Native Hawaiians as one who:

Is

* An individual who is a descendant of the aboriginal peoples who, prior to 1778, occupied and exercised sovereignty in the Hawaiian islands, the area that now con-stitutes the state of Hawaii; or

* An individual who is one of the indigenous native people of Hawaii and who was eligible in 1921 for the programs authorized by the Hawaiian Homes Commission Act, 1920, or a direct lineal descendent of that individual;

* Has maintained a significant cultural, social, or civic connection to the Native Hawaiian community and wishes to participate in the organization of the Native Hawaiian government entity; and

* Is eighteen years of age or older.

As you can see, an effort has been made, though vaguely, to create a loophole by which this is not merely a race-based program. Still, this same loophole may cause more problems than it solves. By making the qualifications primarily about race, the definition process undermines the historical considerations that are supposed to justify Akaka. But a more historically accurate definition of who constitutes a “Hawaiian” would surely lose the political capital and influence of the bill’s primary supporters and undermine the rationale for the Bill. Why is the issue of race so important? That is a question of civil rights, the U.S. Constitution, and the tangled history of the American Indian tribes in the U.S.

Civil Rights and Tribal Questions

Would you be surprised to hear that the United States Commission on Civil Rights opposes the Akaka Bill? It’s true. A neutral, bipartisan organization charged with making recommendations on our nations’ civil rights issues considered the Akaka Bill and determined that it was discriminatorily race-based. In fact, in recommending against passage of the 2005 version of the Akaka Bill, the Commission characterized it as, “legislation that would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege.”

As mentioned above, attempts to define who qualifies as Native Hawaiians are at the root of the race problem and Akaka. So long as it is primarily race-based it will run afoul of the strict scrutiny applied to any race-based legislation. And attempts to put Native Hawaiians on par with American Indian tribes ignore not only the historical differences between the tribes and the sovereign Hawaiian government, but also skip over the question of whether tribal status is even desirable for Hawaii and Native Hawaiians. The body of law regarding the treatment of everything from child custody to economic rights differs greatly when tribal status is invoked and poses a large and unheralded social danger for the state of Hawaii. Then there is the question of casino gaming and its proceeds, which cannot be overlooked in the context of tribal government. (Those who thought that gaming would be specifically prohibited under the Akaka Bill should note that the most recent version of the Bill contains no such bar.) So great (and overlooked) is this issue, that we will continue discussion of it at greater length in Part 2 of this paper (to be published in January 2012). For now, suffice it to say that few have truly considered the questions of jurisdiction, immunity, and law that would arise in the case of a Native Hawaiian government, including the creators of the legislation itself.

Social and Cultural Considerations

For a number of reasons, from its size to its isolation to its ethnic makeup, Hawaii has its own unique culture. We see the external hints to it in every conversation about “ohana” and “aloha spirit”, but anyone who would deny that it is both real and valuable hasn’t been to Newark lately. Hawaii’s reputation as “paradise” is about more than just good weather and nice scenery. It’s a statement on the people, the welcoming and inclusive culture, and the “feel” of the Islands. Thus, it is ironic that the effort to create a political entity to preserve Native Hawaiian culture has done so much destroy it in a practical sense.

Because that is what Akaka does. It creates division in a community that has traditionally been defined by its unity, and emphasizes race in a place that was previously proud of its heterogeneity. It wasn’t long ago that one could happily tell a mainlander who asked about your home that you were “Hawaiian.” Now, there is an inherent need to qualify and define that term -- a quandary not felt by New Yorkers, another proud island group full of many races. Passage of the Native Hawaiian Government Reorganization Act will only exacerbate the problem. It will literally divide families. Add in concerns about different treatment under the law, economic issues, and other questions of race-based preference, and you have all the ingredients for an increasingly fractured and fractious society. There may be no surer route to destroying the character of the Islands than through passage of the Akaka Bill.

Economic Considerations

The funny thing about evaluating the economic impact of passage of the Akaka Bill is that so few attempts have been made to do so. Considering how much money is at stake -- not only through Native Hawaiian trusts and real property, but also in terms of how the inevitable changes will affect existing businesses -- it’s a startling oversight.

In 2009, in conjunction with the Beacon Hill Institute, the Grassroot Institute of Hawaii released a study of the economic impact of the Akaka Bill with a focus on the probable effect of the transfer of lands from the State of Hawaii to the Native Hawaiian Governing Entity (NHGE). The findings of the report were universally negative. This diversion of lands (and their associated lease payments and revenues) from the state to the NGHE was found to have the following effects:

* It would cause a transfer of lease payments currently made to the state by lessees operating or living on state lands ceded to NHGE. At the same time lessees operating or living on this land could expect to see a hefty rise in their lease payments.

* It would exempt Native Hawaiians living or shopping on land ceded to the new “tribal” government from paying state income and excise taxes.

* It would force the state government to replace the lost lease payments and tax revenues with higher income and excise taxes for all other Hawaiian taxpayers.

* It would bring about a significant reduction in the state economy and in the well-being of all Hawaiians, Native and non-Native alike, as measured by key economic indicators.

The authors of the study go on to explain that the state will naturally seek to replace this lost revenue through higher excise and income taxes, which would have a further negative impact on Hawaii’s economy. Further analysis found the following possible impacts of the land transfer implicit in Akaka’s passage: In our High Case scenario the state would lose 20,793 private-sector jobs, $417.2 million in investment and $1,461 in real per-capita disposable income annually. In the Medium land transfer scenario the state would experience a 3.08% loss in jobs (15,796), a 2.16% decrease in investment ($321.2 million) and a 3.20% decrease in disposable income per capita ($1,119). In the Low Case scenario, the state can expect to lose 9,838 private-sector jobs, $203.4 million in investment and $705 in real per-capita disposable income.

--Sarah Glassman, et. al. The Economic Impact of the Akaka Bill: Unintended Consequences for Hawaii. BHI Policy Study (January 2009). Available at
http://www.grassrootinstitute.org/system/attachments/14/BHI_Akaka_0109.pdf

As dire as those predictions seem, they are still limited to the more tangible and quantifiable consequences. They cannot take into account possible damage to Hawaii’s tourism industry due to the loss of the aforementioned “aloha spirit” or the negative press that might follow the social and cultural conflict that could result from the Akaka Bill. Nor can they predict how the loss of land and revenue will impact a state government facing a credit crisis from unfunded liabilities and large projects. More research is needed to give a full picture of the full economic impact of the Akaka Bill -- especially for those who may not have realized how deeply it can affect the wallet of your average citizen of Hawaii.

Conclusion

Unknown impact. That goes to the heart of the problem in discussion of the Akaka Bill in Hawaii. The generous impulse that leads many to believe that the Akaka Bill is little more than a special benefit to help out Native Hawaiians has been exploited by those who don’t want the public to look too deeply into the probable effects of a Native Hawaiian Government. This is, in fact, the most radical and transformative piece of legislation for the state of Hawaii since ... well ... statehood. It has the power to cause significant disruption to Hawaii’s economy and permanently change the cultural, social, and political make-up of the State. And, as we will see in Part Two, embracing the tribal model will pose additional legal and economic problems that could prove even more damaging and divisive.

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http://new.grassrootinstitute.org/wp-content/uploads/2012/02/InPursuit_4new.pdf
In Pursuit, No. 4, February 24, 2012
Grassroot Institute of Hawaii

The Akaka Bill (Part 2)

By Malia Hill

Introduction: Tribe vs. Race

Welcome to post-racial America. Unless you’re a professional comedian, you probably don’t notice much of a difference, except for the fact that it is now possible to begin sentences with, “If we can have a black president ...“ In other words, race remains a volatile issue, and one which most politicians would prefer not to deal with if at all possi-ble. Accusations of racism, no matter how unfair or ill-founded are often treated as the end of an argument, and certainly function as a de facto end to reasoned discussion.

Needless to say, this state of affairs has not done much to advance the way our culture deals with race. It may be said more accurately that, weary from the intricacies of a seemingly-unsolvable problem, Americans are attempting to take a “holiday” from racial issues. This does not mean, however, that racial issues are taking a holiday from America.

On the contrary, savvy activists know that there is no better strategic ground in American politics than in the thorny and tangled realm of racial issues, and will use that advantage to shut down argument and stifle dissent -- even when the issue is far from simple. And there are few better examples of this strategy in action than in the fight over the Akaka Bill. By slowly turning up racial rhetoric -- in fact by casting the “rightness” of support for Akaka in terms of race and (often dubious) historical claims that attempt to evoke the plight of American Indians -- Akaka’s supporters have attempted to shut down discussion of the probable impact of the legislation on the State of Hawaii, and indeed on Native Hawaiians in general. What no one has examined until now is whether this effort to sweep Native Hawaiians into the rubric of tribal governance is appropriate or even desirable.

As explained in Part 1 of this series, the Akaka Bill is a catch-all term for federal action (generally Con-gressional legislation) intended to create a sover-eign Native Hawaiian government, generally along the lines of American Indian tribal governance. As mentioned earlier, the details of the Bill (usually bearing the official title of the Native Hawaiian Government Reorganization Act) can vary, but usually address:

* The establishment of some form of sovereign government for the purpose of organizing/governing those defined as “Native Hawaiian.”

* Some attempt to address land transfer to a Native Hawaiian governing entity and the sub-sequent legal relationship between any Akaka-based government entity and the US government.

It should be noted that, faced with a lack of Congressional support for the Akaka Bill, supporters of a Native Hawaiian government, including the Office of Hawaiian Affairs and Senator Daniel Inouye (D-HI), have indicated their intent to proceed by non-legislative means, i.e. making the case that the Secretary of the Interior has the power to “recognize” Native Hawaiians as a tribe, thus adding it to the roll of federally recognized tribes (and therefore lobbying him to do so despite the fact that this is less a “recognition” of tribal status than a unilateral declaration of it).

The difference between “tribe” and “race” may seem at times like hair-splitting, but it remains significant. In a case like that of Native Hawaiians, it is indeed key, as (in contrast to so existing American Indian tribes) we are already dealing with a distinction between the historical Hawaiian government and the qualifications for participating in a new Native Hawaiian Government.

In short, the independent Kingdom and Republic of Hawaii were demonstrably and unequivocally multi-ethnic in nature, while the current standards of qualification for participation in a Native Hawaiian Government (with the exception of one Constitutionally-problematic loophole) are based squarely on racial background. This is a large part of the reason why the U.S. Commission on Civil Rights opposes the Akaka Bill. (For more on this and other historical considerations, see Part 1 of this series.)

In the end, it comes down to the fact that, historically speaking, the Kingdom (and Republic) of Hawaii were no more a tribal entity than the Kingdom (or Republic) of France. (The similarities are greater than you might at first perceive -- both were sovereign monarchies, recognized as such by other sovereign nations, both experienced revolution and overthrow of the monarchy by those who perceived it as too autocratic, both have made a strong effort to preserve their language and unique elements of their culture, and both eat great food in a way looked askance upon by other, less-adventurous cultures.) Still, the shaky rationale for doing so has not stopped Akaka supporters for at-tempting to hammer the square peg of Native Hawai-ian sovereignty into the round hole of American Indian tribal governance. The question is not “Why would they do this?” The real question is “Is this a good idea?” What is it about the American Indian experience under the federal government that seems so desirable for Native Hawaiians?

Statistically worse

The statistics certainly provide no answer -- no good ones, at least. We are accustomed to Native Hawaiians occupying at-risk positions in most measures of health and economic well-being. The plight of the American Indian is no better and, in many cases, is much worse. The Centers for Disease Control and Prevention report that 15.6% of American Indian and Alaska Native are in “fair or poor health” (compared to 7.5% for Asian/Pacific Islanders), mortality rate is 427.4 per 100,000 population (versus 317.0 for Asian/Pacific Islanders), and infant mortality is at 9.22 per 1000 births (versus 4.78). The suicide rate among American Indians is significantly higher than among other ethnic groups, as are rates of associated mental health disorders (e.g. anxiety, substance abuse, and depression).

Economically speaking, the picture is still bleak -- despite the substantial impact of gaming as a form of revenue for many tribes. Poverty rates continue to be highest for American Indians (28% for those on reservations compared to 18% for Pacific Islanders), and median household income was $35,062 in 2010 (compared to $58,083 for Native Hawaiians/Pacific Islanders). And while Native Hawaiians certainly have a fair grievance in the way that government entities and private boards have administered their lands and trusts over the years, nothing can compare to the legacy of corruption and mismanagement at the Bureau of Indian Affairs. The trust fund scandal that has resulted in the case of Cobell v. Salazar (expected to end in a multi-billion dollar settlement in favor of the tribes) suggests that government mismanagement, delay, and sheer incompetence resulted in losses of tens of billions of dollars in Indian trust funds. Complications in how land is owned and passed down (today, some parcels of Indian trust land have 1,000 different owners) combined with the fact that cumbersome governmental restrictions on use of trust land make it extremely difficult for tribes to develop it for commercial or profitable use have exacerbated both the bureaucratic and economic problems on reservations. The simple principle that adding federal bureaucracy to a group’s economic welfare helps neither their economics nor their welfare is writ large in the American Indian experience and should stand as a warning to those pushing for Native Hawaiian tribal status.

The Looming Legal Crisis

Still, as worrisome as the economic trends may be for a Native Hawaiian tribe, nothing can prepare the state for the possible upheaval of the associated legal problems -- especially at that difficult nexus where the law meets family and cultural considerations.

It is significant that in creating a Native Hawaiian tribe, not only would the federal government be breaking precedent in terms of the wholesale creation of a previously non-existent tribal entity, but that they would also be creating these divisions in the midst of a fully-formed, culturally-distinct, racially-mixed geographic area. In other words, the creation of an Akaka tribe creates arbitrary political barriers among a people in an established and intertwined culture. Suddenly, a group of neighbors -- even family members (given the extensive and mixed nature of families in Hawaii) -- can have significantly different rights and privileges within the same state. This was, in fact, a sticking point in the famed “Lingle compromise” version of the Akaka Bill, as the question of Hawaii State jurisdiction over Native Hawaiians for criminal offenses was something that many wanted spelled out in any Native Hawaiian Reorganization. Indeed, the question of jurisdiction in both criminal and civil law remains an article of contention between states and tribes across the country as some push for greater tribal sovereignty while states make the claim that certain offenses must remain under their purview.

The sad truth is that even the most cursory search can find dozens of examples of conflicts arising from the complicated intersection between local and tribal law. Such as:

* Whether tribal sovereignty would allow a Native Hawaiian tribe to hold itself exempt from honoring contracts or promises made;

* Whether the county will be able to collect property taxes or other taxes on tribal land;

* Whether a Native Hawaiian government could remove Native Hawaiian businesses from local taxation by placing the land on which they stand into a federal land trust;

* Whether a Native Hawaiian government would have the power to try (in tribal court) a non-Native Hawaiian spouse or friend who assaulted a member of the tribe on tribal land (bearing in mind that whether the same Constitutional protections exist under tribal law is also a matter of debate);

* Whether tribal lands (either from policy or neglect) can become a sanctuary for criminal activity that state or local government cannot stop;

* Whether a Native Hawaiian government would be able to enroll or disenroll members without appeal;

* Whether a Native Hawaiian government could use such disenrollment power to influence the outcome of tribal elections;

* Whether a Native Hawaiian government could constrain freedom of speech within its jurisdictional boundaries.

And then there is the elephant in the room -- casino gambling. While earlier versions of the Akaka Bill attempted to address this issue (and the widespread public feeling against casino gaming in Hawaii) by explicitly disallowing it, the more recent efforts (such as the “backdoor Akaka Bill” that merely seeks recognition by the Secretary of the Interior) do not address it at all. In either case, however, for those who are concerned that a Native Hawaiian tribe will lead to gaming in the Islands, there is no legislative safeguard against such an occurrence. Even if the Akaka Bill were passed by the Congress with the inclusion of an anti-gaming provision, the combination of the large amount of money at stake, the confusion of local law versus tribal sovereignty and jurisdiction, and the tangled nature of tribal law itself guarantee that there will be ample opportunities for a determined pro-gaming faction to legally challenge or lobby casino gaming into existence. While not all tribes that have entered the gaming business on the mainland have been successful, the suggestion that geography is one of the biggest factors in success (and the marked economic disparity between those with profitable gaming enterprises and those without) make the case that if a Native Hawaiian government did not pursue the introduction of casino gaming, it would be cultural considerations and not economic self-interest that would prevent such a step. Certainly, other groups seeking tribal recognition have done so with the unspoken goal of creating a casino, despite outward protestations to the contrary.

And yet, for all the chaos and division that these economic and jurisdictional problems could bring to Hawaii, nothing has more potential to tear Hawaiian families apart than the Indian Child Welfare Act (ICWA). Passed in 1978 with the intent to help preserve Indian culture by giving tribes a legal interest in the raising of children, the ICWA gives any federally-recognized tribe standing in child-custody cases involving Indian children. With Indian children being removed from families at a much greater rate (a situation damaging to both the families and the tribes), the ICWA was intended to protect the integrity of Indian families and the tribal interest in raising children. “Indian children” -- as far as the ICWA is concerned -- means an unmarried minor who is a member of the tribe or is eligible for membership and the biological child of a member of the tribe. The ICWA gives the tribe exclusive jurisdiction over the case when the child is a ward of the tribe or domiciled/residing on the reservation and concurrent (but presumptive) jurisdiction with the state on cases where the child is a non-resident of the reservation. The ICWA is meant to apply to foster care placement, termination of parental rights, and pre-adoptive and adoptive placements of children, and not to divorce cases or juvenile criminal proceedings. In addition, some courts have found an “Existing Indian Fami-ly” (EIF) exception where they interpret the ICWA to only apply to cases regarding the removal of Indian children from an Indian family unit and not to a child who had never been part of an Indian home or culture and probably never would be. However, a number of other courts (and legislatures) have explicitly rejected such an exception.

Though this seems clear cut in theory, in practice, the history of the ICWA is littered with contrary rulings and heartbreaking stories. In fact, it is unclear whether even the original goal of lowering the number of Indian children removed from Indian homes (or placed out-side of the tribe) has been successful, given the variable factors of the best interests of the child and the interests of the tribe under the Act. In the meantime, the ICWA has been invoked to:

* Override the express wishes of the parents;

* Attempt to remove a child from the home in which he was raised to be placed on a reservation hundreds of miles away based upon the tribal identification of the mother who had long-since abandoned him;

* Remove a legally adopted child from the family that had nursed him back to health after he was born addicted to drugs in order to place him with another foster family;

* Remove a toddler girl (on New Years’ Eve, no less) from the adopted parents who raised her from birth in order to re-home her with the biological father she never met in a different state.

And the list of similar stories goes on and on. It is important to note a few things here -- especially as they might relate to similar situations under a Native Hawaiian government:

* The ICWA does not require that a child be exclusively or even primarily Indian in his or her ethnic origin.

* The ICWA can be (and has been) used to assert custody rights over a child who is at least half Hispanic (or another cultural background), being raised in a home reflecting that other culture.

* The ICWA can (and does) reach across state lines to act and relocate children.

This is not meant to be an indictment of the ICWA aims in general, but it should be recognized that even the Act’s defenders recognize the inherent problems in the Act. Opponents and proponents alike should be concerned about the irregularities and abuses in enforcement of the ICWA. Moreover, in a culture where inter-marriage, casual/informal adoption, and large, multi-racial extended families (which often share in raising children) is the norm, the application of the ICWA to Native Hawaiian families and children has the potential to seriously disrupt the lives of hundreds of children and families in Hawaii (and throughout the United States). Bear in mind that claiming an interest via the ICWA is separate from claiming tribal membership via the enrollment procedures, and that while only about 60,000 people who consider themselves Native Hawaiian claim at least half Hawaiian blood, more than 400,000 people nationwide claim some form of Native Hawaiian ancestry. It is fortunate that the ICWA is not permitted to intrude on custody cases related to divorce (though there is some anecdotal evidence to the contrary), but even applying the ICWA strictly will bring a new level of division to problems of family law and custody within the Islands.

Conclusion

It is interesting, given that the primary motivation for passing the Akaka Bill seems to be rooted in the desire to “help” Native Hawaiians that the mechanism settled upon to do so shows so little historical evidence that this is the best route for success. In fact, given that the experience of American Indian tribes under the Bureau of Indian Affairs has led to a worse state of affairs (according to most socio-economic indicators) than currently experienced by Native Hawaiians, one wonders whether anyone has given full consideration to the impact that tribal status could have on the wealth, land, trusts, and status of the Native Hawaiians. Moreover, given the nightmare of jurisdictional conflicts that will flow between tribal law and local law in the small confines of an island state containing a Native Hawaiian government, it can be certain that everything from criminal law to the tax code to family law will add to the divisive and destructive impact of the Akaka Bill. In light of these revelations, it would behoove those who are truly interested in improving the situation of Native Hawaiians to look past the pat solutions of political opportunists and consider how greater economic and individual freedom (as opposed to the constraints on both that would follow tribal governance) may be the best way forward.

Endnotes

** Comment by website editor Ken Conklin: Most of the references below were taken from an article published in Hawaii Reporter on December 30, 2011:
Bringing Mainland Tribal Troubles to Hawaii
by Kenneth R. Conklin
http://www.hawaiireporter.com/?p=43998
A greatly extended version of that essay, including full text of each published article, is at
http://www.angelfire.com/big09/BringingTribalTroubles.html
** End of comment

1 See “Suicide Among American Indians/Alaska Natives.” Suicide Prevention Resource Center, available at
http://www.sprc.org/library/ai.an.facts.pdf. (Last visited Feb. 14, 2012.)

2 "There can be no ‘agreement’ with the tribe." Santa Ynez Valley News, Thursday, October 13, 2011. Available at
http://syvnews.com/opinion/commentary/article_9db8e87e-f60a-11e0-9464-001cc4c03286.html

3 "Madison County, Oneida Indian Nation claim foreclosure case victory." Oneida Dispatch. October 21, 2011. Available at
http://oneidadispatch.com/articles/2011/10/21/news/doc4ea1ec755e6ff647122649.txt. See also "Seminoles Ask Supreme Court to Hear Gas Tax Dispute." WCTV2. October 22, 2011. Available at
http://www.wctv.tv/news/headlines/Seminoles_Ask_Supreme_Court_to_Hear_Gas-Tax_Dispute_132382098.html?ref=098.

4 “Tribe seeks to shelter land holdings -- If OK'd, Agua Caliente wouldn't have to pay tax on future businesses there." The Desert Sun. December 1, 2011. See also "Tribal annexation would take huge financial toll" Santa Ynez Valley News. December 8, 2011. Available at
http://syvnews.com/opinion/commentary/tribal-annexation-would-take-huge-financial-toll/article_9980f940-2094-11e1-9491-0019bb2963f4.html

5 "Tribal courts lack power over non-Indian abusers." The Rapid City Journal. November 11, 2011. Available at
http://rapidcityjournal.com/news/tribal-courts-lack-power-over-non-indian-abusers/article_d2f982ac-0bf7-11e1-9e4e-001cc4c002e0.html

6 "Deep divisions seen in Unkechaug tribe." News-day. December 11, 2011. Available at
http://www.newsday.com/long-island/deep-divisions-seen-in-unkechaug-tribe-1.3382917?print=true

7 Edward Sifuentes. "Ousted tribal members want Congress to help.” North County Times. Nov. 13, 2011. Available at
http://m.nctimes.com/mobile/article_d0e1f51a-7f82-51e9-89f8-b5d7d932f1a6.html

8 “Panel weighs sides in Little Shell Tribe leadership dispute.” Great Falls Tribune. December 11, 2011.

9 "Resigning from reservation job." The Bismarck Tribune. October 15, 2011. Available at
http://bismarcktribune.com/news/opinion/mailbag/resigning-from-reservation-job/article_18c005be-f6b2-11e0-88fe-001cc4c03286.html.

10 "Lumbees to choose new leader in Tuesday's tribal election." The Fayetteville Observer. Fayetteville, NC, Mon Nov 14, 2011. Available at
http://www.fayobserver.com/articles/2011/11/14/1136667

11 Mississippi Choctaw Indian Band v. Holyfield, 490 U.S. 30 (1989).

12 Thomas Sowell. “Routine Cruelty,” Oct. 30, 2001. Available at
http://townhall.com/columnists/thomassowell/2001/10/30/routine_cruelty

13 Kiran Khalid and Lee Ferran. “Federal Law Gives Tribe Ruling in Baby Talon's Fate.” ABC News. Dec. 16, 2008. Available at
http://abcnews.go.com/GMA/story?id=6470441&page=1#.TzwU2rH4CVM

14 Harriett McLeod. “Native American roots trump in adoption battle over toddler.” Reuters. Jan. 8, 2012. Available at
http://www.reuters.com/article/2012/01/08/us-adoption-cherokee-idUSTRE8070L720120108

About the Author
Malia Hill a senior policy analyst for the Grassroot Institute of Hawaii, specializing in issues related to transparency and funding.

Published by the Grassroot Institute of Hawaii
In Pursuit is a regular series evaluating government policies and offering proposals to reform. Nothing in this document should be construed as an attempt to aid or hinder the passage of any legislation before any legislative body.

If you have any comments or questions about this commentary, please contact us at:
Grassroot Institute of Hawaii
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About the Grassroot Institute of Hawaii
The mission of the Grassroot Institute of Hawaii is to promote individual liberty, the free market and limited accountable government. Through research papers, policy briefings, commentaries and conferences, the Institute seeks to educate and inform Hawaii’s policymakers, news media and the general public.
The purpose of the Grassroot Institute of Hawaii is to improve the relationship between the government and the people with the objective of improving the effectiveness of the government, the business climate and in some cases, tradition, to foster an atmosphere in Hawaii that results in maximum personal freedom for every individual. We recognize that personal freedom comes with the price of personal responsibility, accountability and respect for others. We believe each person must be free to succeed or fail in building wealth and in rela-tionships with others.

Founded in 2001 by Richard Rowland, Grassroot Institute is a 501(c)(3) non-profit and the only free market think tank in Hawaii.


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