Proposed rules announced Tuesday by the U.S. Department of the Interior emphasize that Native Hawaiians — not the federal government — would decide how to reorganize a Native Hawaiian government and determine any relationship it would have with the United States.
The proposal follows repeated failed attempts to pass the so-called Akaka Bill, which would have established a path to federal recognition for a Native Hawaiian government. While the news was widely embraced, some Native Hawaiians remained steadfast Tuesday in their opposition to federal government involvement in the process — interpreting the announcement as a disregard of the wishes of Native Hawaiians.
In outlining the formal Notice of Proposed Rulemaking, U.S. Secretary of the Interior Sally Jewell called Native Hawaiians “one of our nation’s largest indigenous communities,” who have long been denied a “government-to-government relationship.”
“It’s fantastic,” said Robin Danner, past president of the Council for Native Hawaiian Advancement, who was just elected chairwoman of the Sovereign Councils of the Hawaiian Homelands Assembly.
“It’s the news of a lifetime,” she said. “The federal government is recognizing that this is our kuleana for the Native Hawaiian people to decide, not the federal government, not the state government. There’s a doorway open to us if we want to have that relationship.” (“Kuleana” means “responsibility.”)
But Tuesday’s announcement by the Obama administration also angered many who testified last year during a series of island-by-island hearings on what relationship, if any, the federal government should have with a future Native Hawaiian government.
Hundreds of critics across the state not only rejected the question, but also objected to the hearings and the process — spurning federal involvement of any kind in re-establishing a Native Hawaiian government because of the illegal 1893 overthrow of the Hawaiian kingdom.
The hearings and subsequent proposed rules are “totally wrong,” said Dennis “Bumpy” Kanahele, CEO of the Aloha First organization, which advocates for Hawaiian sovereignty. He argued against a relationship with the U.S. government in last year’s hearings.
“I don’t agree with any involvement of any kind, whether it’s the federal government or the state of Hawaii,” Kanahele said. “I cannot believe we’re being totally ignored. I gotta believe the powers that be in the state are trying every effort to suppress the national sovereignty of the Hawaiian people.”
Hawaii’s congressional delegation, Gov. David Ige and the Office of Hawaiian Affairs unanimously hailed Tuesday’s announcement.
Ige said, “This issue has been discussed for many years, and I support President Obama and the Department of the Interior’s efforts to move it forward. I urge the public, particularly Native Hawaiians, to comment on this possible pathway for the United States and Native Hawaiians to establish a government-to-government relationship. The public comment period for the proposed rule is an invitation for the public to participate in the rule-making process.”
In making Tuesday’s announcement the Interior Department opened a 90-day comment period.
“The Native Hawaiian community’s ongoing work toward self-determination takes a significant step forward today, and I applaud the Obama administration for its commitment to this effort,” U.S. Sen. Mazie Hirono said.
“Native Hawaiians have the right to reorganize a government that they determine is best for them,” said U.S. Sen. Brian Schatz. “With today’s publication of proposed rules from the Department of the Interior, I urge Native Hawaiians and other interested individuals to stay engaged and to contribute their comments and concerns as the process moves forward.”
U.S. Rep. Tulsi Gabbard said: “These rules incorporate over 5,000 public comments submitted to the Department of Interior, and should they be adopted, the Native Hawaiian community will have the option to re-establish a unified government and self-determine their future relationship with the federal government.
“I encourage all interested parties to submit their comments to DOI during the 90-day public review period to ensure a collaborative final ruling.”
U.S. Rep. Mark Takai thanked the Interior Department and Obama administration “for strengthening the U.S. government’s relationship with the Native Hawaiian people. I have always supported Native Hawaiians and will continue to make sure the community’s consensus is implemented in Washington at the federal level so that they may have more ownership of their own destiny at home.”
But the Grassroot Institute of Hawaii, which opposes federal recognition and the Native Hawaiian constitutional convention, or aha, being planned for next year, questioned the Obama administration’s motives for the new proposed rules.
“This is yet another attempt by the Department of the Interior to do an end run around Congress by assuming powers it simply does not have,” Keli‘i Akina, president of the Grassroot Institute, said in a statement. “The Congress has clearly indicated that they — and not the DOI — have the power to recognize a Native Hawaiian government. On multiple occasions, they considered and decided not to pass the Akaka Bill, demonstrating that the constitutional concerns in the creation of a race-based government were real and unavoidable.”
Akina is one of the plaintiffs in a federal lawsuit seeking to stop this fall’s election of delegates to next year’s convention.
“The timing of this proposed rule is troubling, as it comes during a constitutional challenge to an already disputed election and can be seen as an attempt to lend legitimacy to that effort,” Akina said. “The DOI was told in no uncertain terms that a large number of Native Hawaiians did not want federal involvement in their affairs. This proposed rule only serves to further confuse and politicize the issue.”
But OHA CEO Kamana‘opono Crabbe said the Interior Department’s proposed rule represents “a momentous day for our Native Hawaiian community.”
“It is clear the Department of the Interior agrees it will be the Native Hawaiian community — and not the federal government — that would decide whether to organize a Native Hawaiian government, and whether that government would seek to pursue a relationship with the United States,” Crabbe said.
Native Hawaiian nation-building
Question: What is being proposed?
Answer: The U.S. Interior Department has proposed creating a procedure that would facilitate the re-establishment of a formal government-to-government relationship with a reorganized Native Hawaiian government without involving the federal government in the Native Hawaiian community’s nation-building process.
Q: What led to the proposal?
A: In June 2014 the Interior Department issued an Advance Notice of Proposed Rulemaking that resulted in 5,164 written comments from Native Hawaiian organizations, national organizations, Native Hawaiian and non-Native Hawaiian individuals, academics, student organizations, nongovernmental organizations, the Hawaiian Affairs Caucus of the state Legislature, legislators, Hawaiian civic clubs and their members, alii trusts, royal orders, religious orders, a federally recognized Indian tribe, intertribal organizations, Alaska Native Corps. and congressional members, including the Hawaii delegation and former U.S. Sen. Daniel Akaka. The department said that more than half of the written comments were identical postcards submitted in support of re-establishing a government-to-government relationship through federal rule-making.
Q: Would a re-established Native Hawaiian government allow gambling in Hawaii under the Indian Gaming Regulatory Act?
A: The Department of the Interior believes a new Native Hawaiian government would not meet the definition of an "Indian tribe" and thus would not be permitted to allow gambling in Hawaii.
Q: How would a new Native Hawaiian government be organized?
A: The proposed rule would authorize re-establishing a formal government-to-government relationship with a single representative sovereign Native Hawaiian government. But the Interior Department said that government could have a centralized structure or a decentralized structure with political subdivisions defined by island, geographic districts or historic circumstances, or organized in an otherwise "fair and reasonable manner."
Q: How would the proposal affect Hawaiian homesteaders, if at all?
A: The Hawaiian Homes Commission, Kapolei Community Development Corp.’s board of directors and several Native Hawaiian beneficiaries raised concerns that Hawaiian homelands would be "subsumed" by a Native Hawaiian government. The Interior Department said the proposed rule would not diminish any right, protection or benefit granted to Native Hawaiians by the Hawaiian Homes Commission Act. Further, the department said, a reorganized Native Hawaiian government must protect and preserve Native Hawaiians’ rights, protections and benefits under the Hawaiian Homes Commission Act and the Hawaiian Home Lands Recovery Act.
Q: Aren’t there concerns that re-establishing a Native Hawaiian government would be tantamount to creating a race-based government?
A: According to the Interior Department, four U.S. senators submitted comments generally opposing the rule-making on constitutional grounds and asserted that the executive authority used to federally acknowledge tribes on the mainland does not extend to Native Hawaiians. Another senator questioned the interior secretary’s constitutional authority to promulgate rules and argued that administrative action would be race-based and thus violate the Constitution’s guarantee of equal protection. But the Interior Department said that the U.S. Supreme Court has made it clear that legislation affecting Native Americans does not generally constitute race-based discrimination.
Q: Would the roll being used by the Native Hawaiian Roll Commission be used to determine who could vote for a new Native Hawaiian government?
A: The Interior Department permits use of the roll but does not require it. It believes that the roll may be one of several sources that could provide sufficient evidence that an individual descends from "Hawaii’s aboriginal people." Among other things, the Interior Department said a list of potential voters should exclude all non-U.S. citizens and those under the age of 18 — but must include all U.S. citizens who meet the provisions of Hawaii’s Department of Hawaiian Home Lands.
Submit a comment
The U.S. Department of the Interior’s Notice of Proposed Rulemaking can be found at doi.gov/ohr. The public has 90 days to comment by:
>> Sending an email to firstname.lastname@example.org. Include the number 1090-AB05 in the subject line.
>> Writing or hand-delivering comments to Office of the Secretary, Department of the Interior, Room 7228, 1849 C St. NW, Washington, DC 20240.
Comments will be posted at regulations.gov.
Dan Nakaso, Star-Advertiser