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The Honolulu Advertiser
Posted on: Monday, April 4, 2005

Passage of Akaka bill would create havoc

By Thurston Twigg-Smith, Earl Arakaki, Sandra Puanani Burgess and H. William Burgess

The Native Hawaiian Government Reorganization Act, known as the Akaka bill, is expected to reach the Senate for a floor vote no later than Aug. 7. It could happen sooner, and by the end of this year the Akaka bill could be law.

By the end of this 109th Congress, in December 2006, a new government exclusively by, of and for Hawaiians could be carved out of the state of Hawai'i forever.

What will Hawai'i be like if the Akaka bill becomes law?

In our view, the state will be smaller. It will own probably 40 percent less land, and the territory and natural resources over which it has jurisdiction will be reduced. It will probably have about $1 billion less money, a smaller tax base, and its ability to earn money will be reduced. Its ability to provide health, law enforcement, homeland security, environmental and other services will be less effective and more expensive because of lack of access and jurisdiction over the sovereign territories of the new Hawaiian government.

It is reasonable to anticipate that the new Hawaiians-only government and its territory will have at least all of the sovereignty, jurisdiction, governing powers and authority of American Indian tribes and reservations.

Unlike typical contiguous Indian reservations, the "reservation" in Hawai'i likely will be a checkerboard of sovereign enclaves on all islands and in neighborhoods, urban and rural.Ê

While every Indian reservation does not employ all the options listed below, all of these powers are available to every reservation and all are actually in place in various reservations. Unless specifically excluded in the Akaka bill, which is not now the case, they could be imposed on us by the new Hawaiian government.ÊWriters of the legislation say "it would be inappropriate" to exclude any of the following:

• Tax-free, regulation-free tribal businesses will cripple local businesses.

• Citizens of the sovereign governing entity will use state and county infrastructure without paying their full share of state or local taxes or necessarily following present zoning ordinances.

• The new government can control traffic, entries and exits on streets and highways through its territory, charge tolls, install traffic cameras, halt or regulate the passage of cars, trucks, buses, bicycles and pedestrians, and air traffic, cell phone and other communications transmissions overhead, as it sees fit.

• The new tribe can control water quality, air quality, underground water, underground minerals, streams, rivers, beaches, submerged lands, electricity, telephone, water and gas lines and fiberoptic cables running through its territory.

• State and county governments will lack full civil and criminal process, law enforcement and homeland security jurisdiction on the sovereign territory and over "tribal" members.

• The "tribal" government will be immune from suits in state or federal courts for breach of contract or personal injuries or other misconduct.

• The new government will be able to make unlimited campaign contributions of untaxed dollars to "buy" political dominance.

• Conveyance of Kaho'olawe to the new sovereign entity would trigger claims for jurisdiction over the ocean within a 200-mile radius of Kaho'olawe.

• Although the bill says it does not authorize gambling, the bill does not prohibit it. Once the new sovereign government is formed, with tax-free money and unlimited campaign contributions, casinos surely will follow.

• Other unforeseen but drastic changes can be expected.

If you don't like this picture, speak up before it is too late. Let our leaders know you want Hawai'i to stay one state undivided, with equal opportunities and aloha for all.

Thurston Twigg-Smith, Earl Arakaki and Sandra Puanani Burgess are three of 14 plaintiffs in Arakaki v. Lingle, the suit now pending in the 9th Circuit, which seeks to dismantle the Office of Hawaiian Affairs and the Hawaiian Homes Commission Act; H. William Burgess is their attorney. They wrote this commentary for The Advertiser.