For many years there have been bills in the Hawaii legislature to authorize gambling. There has been heavy lobbying and advertising by mainland companies.
The Hawaii Coalition Against Legalized Gambling has battled successfully against such legislation, with help from local churches and mainland anti-gambling groups. But if a Hawaiian tribe is created and gets official state or federal recognition, it will sponsor all forms of gambling including casinos.
The Hawaii Coalition Against Legalized Gambling has refused to oppose federal or state recognition of a Hawaiian tribe. HCALG wants to focus on the single issue of gambling and fears to offend some of its politically liberal allies who support recognition, especially the United Church of Christ, the Catholic Diocese of Honolulu, United Methodist Church, Quakers, Mormons, and Buddhist groups. HCALG's strategy of appeasement is shortsighted, because the one event most likely to bring gambling to Hawaii would be recognition of a Hawaiian tribe.
The Hawaii legislature might soon give formal recognition to a Hawaiian tribe now being created through the state-sponsored Kana'iolowalu racial registry, successor to the Kau Inoa registry. Although the Akaka bill seems dead in the current 113th Congress, powerful politicians are working behind the scenes to get federal recognition through administrative procedures in the Bureau of Indian Affairs or the Department of Interior, or through a Presidential Executive Order. As a Senator, Barack Obama spoke in favor of the Akaka bill; and repeated his support for it several times since then. The OHA newspaper has bragged that behind-the-scenes efforts are underway. The Honolulu Star-Advertiser has editorialized in favor of them.
The Indian Gaming Regulatory Act was passed by Congress in 1988. One consequence of IGRA is that if the State of Hawaii or any of its counties allows any form of legalized gambling -- even so minor as issuing a license for a church bingo game -- then a Hawaiian tribe would be entitled to a full-blown gambling casino.
When land is taken into trust for a tribe it becomes federal land. The supremacy clause of the Constitution makes state and local governments unable to tax or regulate federal lands. The result is that tribal businesses on tribal lands, including gambling casinos, liquor stores, gas stations, tobacco shops, etc., operate free from state or local taxes; free from zoning regulations, environmental laws, and labor laws; free from paying minimum wage or workers' compensation for injuries, etc. Tribes spend large amounts of casino profits to lobby legislatures to pass laws favorable to them. Tribal sovereignty puts them outside the reach of state campaign spending laws, so they spend megabucks to elect pro-gambling candidates.
Mainland tribes worried that a Hawaiian tribe would set up gambling casinos in their own states competing against them. That's why mainland Senators demanded stronger and stronger language in the Akaka bill as the years went by to prohibit the Hawaiian tribe from engaging in gambling.
But in September 2012, just weeks before retiring from the Senate, Dan Akaka suddenly pushed through the Indian Affairs committee, where he was chairman, a new version of the Akaka bill with zero prohibitions against gambling. It's just what he and Dan Inouye had always wanted. It grants the Hawaiian tribe the same rights as all other tribes, and specifically says the Hawaiian tribe will be governed by the Indian Gaming Regulatory Act. The bill actually gave the Hawaiian tribe special advantages for gambling by providing a "Carcieri fix" allowing it to put land into trust even though all other tribes recognized after 1934 are currently prohibited from doing so because of a 2009 Supreme Court decision.
Pushing a bill through Congress is not the way most tribes got recognized. The usual process is to submit an application to the Bureau of Indian Affairs and Department of Interior, accompanied by proof that the "tribe" satisfies all seven mandatory criteria under 25 CFR 83.7.
Ethnic Hawaiians fail at least three of the seven requirements. They have not been identified as an Indian entity on a continuous basis since 1900; the predominant portion of ethnic Hawaiians do not comprise a distinct community that has existed as a separate, identifiable community from the time of European contact until the present; and ethnic Hawaiians have not maintained a political entity that has exercised significant influence or authority over its members as an autonomous entity from European contact until the present.
The Department of Interior has been conducting a review of 25 CFR 83.7 and gathering public comments with a view toward easing the requirements and simplifying the process. Undoubtedly there are OHA lobbyists burrowing into the bureaucracy in hopes of revising the criteria and process to make it easier for themselves to get recognition.
If a Hawaiian tribe gets recognition through administrative hocus-pocus or Executive Order, it would immediately have all the rights of federally recognized tribes with none of the restrictions on funding or gambling that were included in various versions of the Akaka bill. Of course a future Republican President could issue a new Executive Order rescinding recognition. But once a tribe has been created and has gathered power to itself for a few years, it would be very hard to dismantle.
Here's a scenario for Hawaiian recognition without any Akaka bill. The Hawaiian Homes Commission Act of 1920 established what might be regarded as a "reservation" with 203,500 acres of land and a "tribe" consisting of all people with at least 50% Hawaiian native blood. In the statehood act of 1959, Hawaii agreed to take over responsibility for the Homelands, subject to oversight by the federal government. In view of recent difficulties with local administration of the Department of Hawaiian Homelands, the federal government might assert its rights under HHCA to supervise the program. Perhaps the Obama administration might simply declare that DHHL is a federally recognized tribe. Such an Executive Order might even state that because the Hawaiian Homes Commission Act was signed into law in 1921, the Hawaiian tribe has been federally recognized since 1921 and therefore qualifies to have land taken into trust despite the Carcieri decision. Perhaps the Presidential order might extend to all ethnic Hawaiians with at least one drop of native blood whose names will have been certified by the Kana'iolowalu racial registry process. Once created the tribe could exercise its inherent powers of sovereignty to extend its membership to the much larger group of all 527,000 who checked the box for "Native Hawaiian" in Census 2010.
Obama seems eager to please the Indian tribes. President Bush had refused to sign the United Nations Declaration on the Rights of Indigenous Peoples because of concerns that it could undermine the sovereignty of the U.S. President Obama signed it. Obama also puts aside golfing to have an annual meeting in Washington with leaders of the federally recognized tribes to hear their concerns and reassure them of his support. Obama might listen to tribal leaders who oppose recognition for a Hawaiian tribe.
The genuine tribes have a lot to lose if a Hawaiian tribe gets federal recognition. The Hawaiian tribe would be the largest tribe in America, easily grabbing the lion's share of government handouts from a shrinking budget. The Hawaiian tribe would also be able to purchase land in other states, place it into federal trust, and have gambling casinos competing against the casinos many tribes rely upon as their primary source of income.
Census 2010 identified 527,077 people who checked the box for being "Native Hawaiian." 237,107 were residents of other states, including 74,932 in California (an increase of 25% above the number living there in 2000). The California branch of the Hawaiian tribe is flourishing, would be the largest tribe in California, capable of owning and managing one or more casinos.
From 2000 through 2012 the Indian tribes gave political support to the Akaka bill. Tex Hall, president of the National Congress of American Indians, testified alongside Haunani Apoliona, chair of the Office of Hawaiian Affairs, before the Senate Committee on Indian Affairs in Washington.
The two Hawaii Senators wielded enormous power over the mainland tribes as members and sometimes chairmen of the Indian Affairs committee -- the power to appropriate billions of dollars for Indian programs, to pass laws regulating how the tribes do business, to summon tribal chiefs to oversight hearings where their leadership, policies, and budgets could be challenged, etc. The mainland tribes feared the size and power of a proposed Hawaiian tribe; but they feared Inouye and Akaka more and therefore gave lip service to supporting the Hawaiian tribe. That support was always shaky, and might now be changing. There are many arguments against recognizing a Hawaiian tribe which do not in any way attack the legitimacy of the genuine mainland tribes -- because the history of the Kingdom of Hawaii and its inclusion of large numbers of non-natives as full partners with voting rights and leadership positions is unlike any mainland tribe.
Now that Inouye and Akaka are gone, we who oppose the creation of a Hawaiian tribe, and especially we who oppose gambling in Hawaii, should ask mainland tribal leaders for help in stopping federal recognition for a Hawaiian tribe. Since recognition activity is now taking place primarily behind the scenes, tribal leaders do not need to issue public statements -- they can speak quietly to government officials they routinely talk with in the Bureau of Indian Affairs and the Department of Interior. Let's encourage them to kill this egg before the rattlesnake hatches.
This has been a summary of a much more detailed essay, including footnotes, at
http://tinyurl.com/k3zyyy8
