Akaka Bill Through the Backdoor in Fall 2012?

BY KENNETH R. CONKLIN, PH.D. — What’s the prognosis for the Akaka bill during the remainder of President Obama’s first (and only?) term?

Following is a summary of a more detailed essay which includes numerous links documenting the main points. See
https://tinyurl.com/897vvud

Congress is approaching its annual 5-week August recess (returning September 10). With election distractions and little time left in the 112th Congress, the Akaka bill probably cannot come to the floor for an up-or-down vote.

But the bill is far from dead. It might get added as a rider in some other bill. It might be included in a bill or an executive order simultaneously granting federal recognition to a group of so-called tribes whose applications have been bogged down in the Bureau of Indian Affairs for many years. Confusion and haste at the end of the “taxmageddon” lame duck session could be used as camouflage to sneak the bill through, perhaps “by reference” as a single sentence deep inside the omnibus appropriations bill. Committee chairman Dan Inouye nearly succeeded with precisely that maneuver 12 years ago.

On July 12, 2012 the Senate Indian Affairs Committee (Dan Akaka, chairman; Dan Inouye, member) held a hearing on procedures for federal recognition. The hearing did not discuss the Akaka bill, but was well-orchestrated to lay the groundwork to pass it. The U.S. Code of Federal Regulations, at 25 CFR 83.7, lists seven mandatory criteria which a group of Indians must meet in order to get federal recognition that they are a tribe.

Senator Jim Webb (D-VA) testified that there are six tribes in Virginia who have been trying for many years to get federal recognition through the normal process in the Bureau of Indian Affairs but fail to satisfy some of the requirements. Webb wants Congress to pass a bill recognizing them. Spokesmen for other tribes gave similar testimony. The video of the July 12 committee hearing, along with the written testimony of all participants, is available.

Senators Webb and Akaka are both retiring in 2012, and would love to get their tribes recognized. A large group of Senators might vote with each other in a classic “logrolling” scheme to get all their tribes recognized. Webb and representatives of several tribes pointed out that the procedures for applying for federal recognition are hard to understand, require voluminous paperwork, are extremely slow and cumbersome, and lack transparency and accountability. Besides, those procedures allow non-Indians to interfere in the right to self-determination that supposedly should be for Indians alone to decide. The Senate was urged to amend the regulations (we can’t get recognized according to the rules, so let’s change the rules), and to override the regulations by having Congress pass specific bills to recognize particular tribes even though they do not satisfy the law (screw the rules and just give us what we want).

Efforts to get federal recognition for the Akaka tribe, the six Virginia tribes, and numerous other tribes are not limited to Congress. If the normal recognition process is too cumbersome and slow, and Congress has too much work and not enough time to pass a bill to recognize them, then why not use political influence to get the job done by following other pathways through the executive branch?

President Obama’s father from Kenya and mother from Kansas met at the University of Hawaii (in a Russian language course at the height of the Cold War!). Obama was born in Hawaii, spent his formative years in Hawaii, and vacations in Hawaii every Christmas. Hawaii Governor Neil Abercrombie, who was a Congressman for many years, pushed the Akaka bill to passage in the House three different years. A young, very radical Abercrombie was a personal friend of Obama and his mother and grandparents while Obama was growing up in the absence of his globetrotting playboy father. Obama has already stated publicly, on numerous occasions, that he favors federal recognition for ethnic Hawaiians.

No doubt President Obama can find some way to get some part of the executive bureaucracy to circumvent Congress, the Bureau of Indian Affairs, 25 CFR 83.7, and all other obstacles. Perhaps the way to do it is to simply add the Akaka tribe to the list of federally recognized tribes merely by publishing it in the Federal Register, following the same process whereby hundreds of other new laws are arbitrarily created every month by regulatory agencies.

Something like that is clearly underway behind the scenes. There have been repeated hints about it. For example, incoming OHA chair Collette Machado said in her “State of OHA” speech “OHA spent 10 years pursuing the passage of the Akaka bill and dealt with multiple obstacles along every step of that path. We will not give up. We are committed to gaining federal protection of Känaka ‘Öiwi rights. Within the last year, OHA has started to open up alternate legislative and executive routes in coordination with Sen. Daniel Akaka, Sen. Daniel Inouye and the Senate Committee on Indian Affairs. President Barack Obama is a strong partner in this effort. OHA will aggressively pursue these legislative and executive paths throughout the next year.”

Would President Obama bend or break the laws regarding federal recognition in order to help his friends in Hawaii? Obama has repeatedly shown that he has little respect for his obligation to “take care that the laws be faithfully executed” (U.S. Constitution Article 2 Section 3). Here are some examples. Obama announced that he will support gay rights for federal workers and military personnel, by not allowing the Department of Justice to file legal briefs invoking the Defense of Marriage Act in federal court lawsuits. He announced he will unilaterally implement the “Dream Act” which Congress has rejected, by ordering the Department of Justice not to pursue deportation for illegal immigrants who have not broken laws other than those related to immigration. Obama has withdrawn federal cooperation with Arizona to identify illegal aliens, following a Supreme Court ruling adverse to the Obama administration that Arizona police are allowed to demand verification of legal status during traffic stops. Early in his administration, Obama’s Department of Justice dismissed civil rights charges against members of the New Black Panthers who had intimidated voters during the 2008 election — dismissing those charges even after career DOJ attorneys had been successful in prosecuting the Panthers.

The Association of Hawaiian Civic Clubs will hold its annual convention, in October 2012, in Washington D.C. (instead of Honolulu, or Las Vegas). OHA will spend $200,000 to help pay the expenses of “over 500 participants from the 60 Civic Clubs across the nation who will discuss the strategic direction for Native Hawaiians in 2013.” 500 Hawaiians can easily lobby all 100 Senators to pass the Akaka bill, and lobby administrators in the Departments of Interior and Justice to bend the rules.

The Civic Clubs announcement also mentions its wholly-owned subsidiary Hawai’i Maoli, a tax-exempt organization funded by OHA. Hawai’i Maoli has collected names, genealogies, and contact information of about 120,000 ethnic Hawaiians who have signed up for the Kau Inoa racial registry expected to become the base for the membership roll for an Akaka tribe.

Numerous versions of the Akaka bill have been under consideration in Congress since the Summer 2000. For the first few years the bill had little support but passed the House because it was managed through stealth procedures and escaped notice. It passed the House on a voice vote, under suspension of the rules, at dinner time, on the calendar of non-controversial bills, when only a handful of Representatives were present. It then passed the Senate temporarily when Senator Inouye added it as a unilateral earmark in the middle of the night just before Christmas, by putting its bill number in a single sentence deep inside a huge defense appropriations bill — until a Republican staffer caught it at the last moment. Republicans forced Inouye to remove the earmark because a longstanding Senate rule (which Inouye undoubtedly knew) prohibits policy legislation from being inserted as an earmark in an appropriations bill.

During the mid-2000s the Akaka bill became highly controversial as hundreds of commentators published strongly-worded articles opposing it in newspapers and magazines of national circulation, while Republican Senators placed holds preventing the bill from coming to the floor. In 2005 God intervened to stop the Akaka bill when Hurricane Katrina blew it off the Senate schedule. In 2006 a Republican filibuster blocked it when a cloture motion was debated for 6 hours on the Senate floor over a two day period, televised on C-SPAN, and lost. Full text of hundreds of articles opposing the bill, and of the Senate floor debate, are on several webpages.

On October 24, 2011 it was reported that Senator Inouye had inserted a single sentence in a committee draft of a large appropriations bill, to add the state-recognized Act 195 tribe to the list of federally recognized tribes. That stealth maneuver was defeated December 16 when House Republicans forced removal of Inouye’s sentence during final markup of an omnibus appropriations bill. Inouye and Akaka both vowed to continue efforts to get federal recognition of ethnic Hawaiians by any means necessary.

Even if Congressional and administrative pathways fail, and Obama loses the election, he could unilaterally proclaim an Executive Order recognizing the Akaka tribe anytime until he leaves office at noon on January 20. However, President Romney could undo that with his own Executive Order as soon as January 21. A similar sequence of Executive Order by outgoing President followed by counter-order by incoming President of the opposite party occurred in 1993 regarding the Sansonetti Opinion that there is no federal trust relationship with ethnic Hawaiians.

For the expanded essay and internet links, see
https://tinyurl.com/897vvud

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