by Andrew Walden
Does the Obama administration believe it has the authority to create the Akaka Tribe without Congressional approval?
After a Summer marked by chatter from Sen. Brian Schatz and Rep Colleen Hanabusa about administrative recognition of a the Akaka Tribe, Interior Secretary Sally Jewell flew to Honolulu September 5, 2013 to tell the Council for Native Hawaiian Advancement that the Obama administration is exploring possible administrative options for pursuing federal recognition of Native Hawaiians. Sen. Mazie Hirono last August told reporters, President Obama is "very committed to Native Hawaiian recognition, and he said that he is going to be reviewing the legal basis in which executive action can be taken." And more recently, Trustees of the Office of Hawaiian Affairs have been spending a lot of time in Washington, DC.
Four members of the US Commission on Civil Rights September 16, 2013, warned the Obama Administration that creation of the Akaka Tribe by Executive Order may be unconstitutional, but the Interior Department has quietly launched “Procedures for Reorganizing the Native Hawaiian Community as an Indian Tribe” three times since 2012. According to the Executive Office of Information and Regulatory Affairs rule making was “First time published in the Unified Agenda” in 2012--then republished in Spring 2013, and in Fall, 2013.
Without any public announcement or notice in Hawaii—other than the heightened political noise--the Department of Interior thrice began a process to invent a fake Hawaiian Indian Tribe with announcements buried on the reginfo.gov website:
This rule would establish a process for identifying members of the Native Hawaiian community for the purpose of reorganizing that community as four political sub-divisions or bands, organizing the bands into a confederation, and then acknowledging a government-to-government relationship with that single confederation as a tribe. The Assistant Secretary for Policy, Management and Budget will be responsible for the Department's implementation of this rule, based upon the intentions of Congress, as evidenced in the Hawaiian Home Lands Recovery Act of 1995, and Public Law 108-199, 188 Stat. 445-46. Recognition of the reorganized Native Hawaiian political community as a tribe will not result in eligibility for funding and services from the Bureau of Indian Affairs.
UPDATE: How secretive has this process been? OHA Trustee Oswald Stender tells the May 25, 2014 Honolulu Star-Advertiser that he has been unaware of the DoI rulemaking process. Sen. Brian Schatz told the Star-Advertiser that publication of the proposed rule marks "the beginning of an important public dialogue." How can this mark "the beginning" if it has been going on since 2012? Did Schatz not know about previous DoI rulemaking efforts or is he covering up federal secrecy? After two years of secrecy, this story only became public with a May 23 news release from Grassroot Institute -- which did not mention that DoI efforts trace back to 2012.
Hawaiians have never been tribal. Hawaiian ethnicity originates with the foundation of the Hawaiian Kingdom, an internationally recognized national state, not a tribe, by King Kamehameha I. Even before Kamehameha, the commoners – maka’ainana -- of the Hawaiian Isles lived under a feudal—not tribal--system ruled by ali’i – a noble class with a separate bloodline. To form Hawaiians into a fake Indian tribe would be to overthrow the Hawaiian Kingdom again.
Now, after three failures against the weight of centuries, the Interior Department apparently wants to see if a change in language will do the trick. In a May 21, 2014 announcement, the Department drops “Indian Tribe” and now aims for “Procedures for Reestablishing a Government-to-Government Relationship With the Native Hawaiian Community.” The wording is similar and the announcement is marked “Previously published in the Unified Agenda”—showing it is just a continuation of the “Indian tribe” scheme:
The Secretary of the Interior is considering whether to propose an administrative rule that would facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community, to more effectively implement the special political and trust relationship that Congress has established between that community and the United States. The purpose of this advance notice of proposed rulemaking (ANPRM) is to solicit public comments on whether and how the Department of the Interior should facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community.
All four announcements cite the same legal authorities: PL 108-199, 188 Stat 445-46 and PL 104-42, 109 Stat 357. Notably, these same two laws are also cited by the Department of Interior Office of Native Hawaiian Relations:
The Office of Native Hawaiian Relations was authorized by Congress in Public Law 108-199 on January 23, 2004, and in Public Law 104-42 on November 2, 1995. The Office discharges the Secretary's responsibilities for matters related to Native Hawaiians and serves as a conduit for the Department’s field activities in Hawaii.
The Hawaiian Homes Commission Act is incorporated into the Hawaii Admission Act. In general a state’s Admission Act can only be amended with the agreement of both the US Congress and the state’s Legislature. In Hawaii v OHA, better known as the Ceded Lands Decision, Justice Samuel Alito, writing for the unanimous US Supreme Court, explains:
“We have emphasized that 'Congress cannot, after statehood, reserve or convey … lands that have already been bestowed on a State.'…('[T]he consequences of admission are instantaneous, and it ignores the uniquely sovereign character of that event…to suggest that subsequent events somehow can diminish what has already been bestowed').…"
Can “Obama act on sovereignty?” The US Constitution Article I, Section 8 enumerates that power among those granted to Congress, not the President:
“Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes.”
Tracing the Interior Department’s alleged legal authorities reveals a daisy chain of sneaky Dan Inouye language insertions -- but they still don’t add up to “Indian Tribe.”
Public Law 104-42 on November 2, 1995, the “Hawaiian Home Lands Recovery Act”, deals mostly with payment for post-statehood Federal use of Hawaii Department of Hawaiian Homelands properties. But Section 204 purports to give the US Secretary of the Interior a limited authority to interpret section 4 of the Hawaii Admission Act:
SEC. 204. PROCEDURE FOR APPROVAL OF AMENDMENTS TO HAWAIIAN HOMES COMMISSION ACT.
(a) NOTICE TO THE SECRETARY.—Not later than 120 days after a proposed amendment to the Hawaiian Homes Commission Act is approved in the manner provided in section 4 of the Hawaii State Admission Act, the Chairman shall submit to the Secretary—
(1) a copy of the proposed amendment;
(2) the nature of the change proposed to be made by the amendment; and
(3) an opinion regarding whether the proposed amendment requires the approval of Congress under section 4 of the Hawaii State Admission Act.
(b) DETERMINATION BY SECRETARY.—Not later than 60 days after receiving the materials required to be submitted by the Chairman pursuant to subsection (a), the Secretary shall determine whether the proposed amendment requires the approval of Congress under section 4 of the Hawaii State Admission Act, and shall notify the Chairman and Congress of the determination of the Secretary.
(c) CONGRESSIONAL APPROVAL REQUIRED.—If, pursuant to subsection (b), the Secretary determines that the proposed amendment requires the approval of Congress, the Secretary shall submit to the Committee on Energy and Natural Resources of the Senate and the Committee on Resources of the House of Representatives—
(1) a draft joint resolution approving the amendment;
(2) a description of the change made by the proposed amendment and an explanation of how the amendment advances the interests of the beneficiaries;
(3) a comparison of the existing law (as of the date of submission of the proposed amendment) that is the subject of the amendment with the proposed amendment;
(4) a recommendation concerning the advisability of approving the proposed amendment; and
(5) any documentation concerning the amendments received from the Chairman.
Section 4 of the Hawaii State Admission Act reads:
…the Hawaiian Homes Commission Act, 1920, as amended, shall be adopted as a provision of the Constitution of said State, as provided in section 7, subsection (b) of this Act, subject to amendment or repeal only with the consent of the United States, and in no other manner: Provided, That (1) sections 202, 213, 219, 220, 222, 224, and 225 and other provisions relating to administration, and paragraph (2) of section 204, sections 206 and 212, and other provisions relating to the powers and duties of officers other than those charged with the administration of said Act, may be amended in the constitution, or in the manner required for State legislation, but the Hawaiian home-loan fund, the Hawaiian home-operating fund, and the Hawaiian home-development fund shall not be reduced or impaired by any such amendment, whether made in the constitution or in the manner required for State legislation, and the encumbrances authorized to be placed on Hawaiian home lands by officers other than those charged with the administration of said Act, shall not be increased, except with the consent of the United States; (2) that any amendment to increase the benefits to lessees of Hawaiian home lands may be made in the constitution, or in the manner required for State legislation, but the qualifications of lessees shall not be changed except with the consent of the United States….
The Interior Department’s other alleged legal authority, Public Law 108–199, is also known as the “Consolidated Appropriations Act, 2004.” Dealing mostly with appropriations for ‘Rural Development’ pork projects—one of Inouye’s favorite playpens--the text suddenly veers in a new direction on page 445:
SEC. 148. UNITED STATES OFFICE FOR NATIVE HAWAIIAN RELATIONS.
(a) ESTABLISHMENT.—The sum of $100,000 is appropriated, to remain available until expended, for the establishment of the Office of Native Hawaiian Relations within the Office of the Secretary of the Interior.
(b) DUTIES.—The Office shall—
(1) effectuate and implement the special legal relationship between the Native Hawaiian people and the United States;
(2) continue the process of reconciliation with the Native Hawaiian people; and
(3) fully integrate the principle and practice of meaningful, regular, and appropriate consultation with the Native Hawaiian people by assuring timely notification of and prior consultation with the Native Hawaiian people before any Federal agency takes any actions that may have the potential to significantly affect Native Hawaiian resources, rights, or lands.
The “special legal relationship between native Hawaiian people and the United States” is codified in the Hawaii Admission Act which incorporates the Hawaiian Homes Commission Act, “as a compact with the United States” and provides for the use of public “ceded” lands for five purposes one of which is, “…the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended….”
There’s nothing in the Admission Act which creates “Procedures for Reorganizing the Native Hawaiian Community as an Indian Tribe” because Hawaiians are not and never have been tribal -- and in 1920 and 1959 everybody knew that.
There’s nothing in the “Hawaiian Home Lands Recovery Act” which gives away the US Congress’ power to recognize Indian Tribes, because even Congress is not that stupid.
The Akaka Tribe has nothing to do with justice for Hawaiians. It is and always has been a land grab by corrupt Hawaii political operatives. Their intent is to take land out from under Hawaii’s strict land-use controls, place it in federal trusteeship under tribal laws enforced by tribal courts, and make billions from unchecked development schemes far bolder than OHA’s temporarily failed Kakaako Makai gambit this session. If anybody doubts this, they need to read the final version of the Akaka Bill presented to Congress by Sen. Dan Akaka in 2012.