Can Akaka tribe be recognized by bureaucratic fiat?

BY KENNETH R. CONKLIN, PH.D. — A newly published report from the Office of Inspector General of the U.S. Department of Interior sheds light on an illegitimate bureaucratic procedure used in 2011 to recognize a California Indian tribe. That same sort of procedure is probably being considered to get federal recognition for “Native Hawaiians.”

The Akaka bill would grant federal recognition to “Native Hawaiians” as though they are an Indian tribe. The bill has had a chaotic history in Congress since July 20, 2000. In 13 years it has had numerous major revisions. Perhaps the height of the schizophrenia was in 2009 when three radically different versions of the bill were each introduced in both the House and Senate simultaneously as paired companions in February, March, and May. The Akaka bill, named for Hawaii’s U.S. Senator Daniel Akaka, passed the House in three different years, but died in the Senate. In August/September 2005 Hurricane Katrina blew it off the Senate calendar, and in June 2006 a two-day filibuster killed it.

During 2010, 2011, and 2012, U.S. Senator Daniel Inouye repeatedly tried to use a stealth procedure to get the job done. He inserted a sentence into appropriations bills for the Department of Interior that would have authorized DOI to simply add “Native Hawaiians” to the list of federally recognized tribes, thereby immediately granting the Akaka tribe all the same powers and exemptions from state and local law as genuine tribes such as Navajo, Cherokee, Apache, etc. On each occasion Inouye’s maneuver was discovered and his sentence was surgically removed from the appropriations bills.

Although Inouye died last year, and Akaka retired, the idea of implementing the Akaka bill by some sort of bureaucratic process, without approval from Congress, lives on.

During 2010-2013 there have been vague but persistent rumors that Hawaii Senators and Representatives are working with the Obama administration to create some sort of executive order or administrative decision to give federal recognition to the Akaka tribe, even in the absence of any action from Congress. Such a possibility seems quite plausible in view of President Obama’s repeated use of executive orders and administrative rule-making to usurp the powers of Congress.

Now consider what actually happened in the Department of Interior in 2011 regarding a California tribe, which could very well happen during the remaining years of the Obama administration regarding the Akaka tribe.

Suppose a group of Indians has been trying to get federal recognition as an Indian tribe, which would allow them to eventually get reservation lands where they could operate businesses (including gas stations, liquor stores, and gambling casinos) exempt from state and local taxation, zoning laws, labor laws, etc. Suppose a government official abuses his authority and gives that Indian group federal recognition arbitrarily and capriciously, without requiring the Indian group to go through the usual process for proving it meets the seven mandatory requirements to be federally recognized (see 25 C.F.R., Section 83.7). Who would have standing to complain? Could the newly proclaimed “tribe” be stripped of federal recognition? Could the “tribe” then be retroactively stripped of the special rights which recognized tribes enjoy, even after already implementing some of those rights during the time when it was illegitimately recognized?

That’s the scenario which seems to be unfolding regarding a California Indian group which was given federal recognition in December, 2011.

The Office of the Inspector General of the U.S. Department of the Interior has publicly released what it calls an “investigative report” severely criticizing Larry Echo Hawk, former Assistant Secretary for Indian Affairs, for improperly granting federal recognition to the “Tejon Indian Tribe.” (California). The original report was dated January 9, 2013. Some juicy details were apparently removed; as the report was rewritten and released for public consumption on April 30, 2013.

Here’s the official summary, as can be seen on the Department of Interior’s website at
https://www.doi.gov/oig/news/investigative-report-of-the-tejon-indian-tribe.cfm

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Dept. of Interior, Office of Inspector General

Investigative Report of the Tejon Indian Tribe, 04/30/2013

The Office of Inspector General investigated former Assistant Secretary-Indian Affairs (AS-IA) Larry Echo Hawk’s decision to “reaffirm” the Tejon Indian Tribe of California in December 2011 without going through the acknowledgment process set forth in 25 C.F.R., Part 83, “Procedures for Establishing That an American Indian Group Exists as an Indian Tribe.”

We found that the Tejon Tribe, along with several other American Indian groups, submitted petitions requesting reaffirmation by the AS-IA. These petitions were outside the Part 83 acknowledgment process, which is the official process for recognizing Indian groups as tribes and is administered by the AS-IA’s Office of Federal Acknowledgment (OFA). We could not find any discernible process Echo Hawk and his staff might have used to select the Tejon Tribe for recognition above the other groups.

We also found that Echo Hawk and his staff did not consult with OFA or with Bureau of Indian Affairs (BIA) leadership before deciding to reaffirm the Tejon Tribe. Because OFA was not consulted, other American Indian groups with historical, genealogical, and ancestral claims to the original Tejon Indians were left out of the process. In addition, not involving BIA leadership caused budgeting and operational difficulties for BIA, which in turn slowed down the process for providing Federal services to the Tejon Tribe. The AS-IA also denied subsequent requests by BIA for additional FY 2013 funding, which was needed to provide these services for the newly recognized Tribe.

Read the complete report here.
https://www.doi.gov/oig/reports/upload/Tejon_ROI_FINAL_PUBLIC.pdf

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Hawaii now has two Senators and two Representatives who are all very inexperienced in Congress and have very low seniority. It is now May of 2013, and the Akaka bill has not yet been introduced in the 113th Congress. In the past 13 years there has never been such a long delay. Either our delegation has no idea what to do, or else they are participating in a stealth maneuver involving bureaucrats in the Obama administration, probably similar to what was done by Larry Echo Hawk to give recognition arbitrarily and improperly to the Tejon Indian Tribe.

On January 6, 2013 newly sworn-in Rep Tulsi Gabbard wrote in the Honolulu Star-Advertiser “I would immediately work with the delegation to pass a bill or administrative regulation acknowledging this status, without the government building components that would be difficult to pass at this time.”

Toward the end of 2012 Senator Akaka, as chair of the Senate Indian Affairs Committee, held a hearing on the Bureau of Indian Affairs process for granting tribal recognition, perhaps in response to concerns over what Echo Hawk had done. On March 19, 2013 the House Subcommittee on Indian and Alaska Native Affairs held an oversight hearing on “Authorization, standards, and procedures for whether, how, and when Indian tribes should be newly recognized by the federal government: Perspective of the Department of the Interior.” The chair of that committee is Alaska Rep. Don Young, who has always favored the Akaka bill, and the ranking member is Hawaii Rep. Colleen Hanabusa. Testimony by the Office of Federal Recognition is available at
https://naturalresources.house.gov/calendar/eventsingle.aspx?EventID=323343

On April 24, 2013, Hawaii’s U.S. Senator Brian Schatz said on Hawaii News Now TV stations: “Support from Kevin Washburn, a top policy advisor in President Obama’s administration, is very encouraging. He has a keen understanding of federal Indian law and the history of this nation’s treatment of its indigenous people. His view that Native Hawaiians deserve to have the same government-to-government relationship as Native Alaskans and American Indians on the mainland is very welcomed and appreciated. I will continue to work with the Obama administration to find ways to pass the long awaited Akaka Bill and make equal treatment for Native Hawaiians a reality.”

Let’s hope the Inspector General’s report sets in motion a process leading to revocation of the Tejon Tribe’s recognition. And let’s hope this puts an end to efforts to create a phony Akaka tribe by bureaucratic fiat.

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