How to turn Hawaiian Homelands into a fake, federally recognized Indian Tribe, without a vote of Congress
by Andrew Walden
Its been nearly a year since thousands of native Hawaiians at dozens of public hearings angrily rejected what the Feds called "Procedures to Reestablish a Government-to-Government Relationship with the Native Hawaiian Community."
Now, a different set of rules proposed May 8, 2015 by the US Department of the Interior (DoI), at the urging of Robin Danner's Council for Native Hawaiian Advancement, would create a path to federal recognition in three steps:
1) The 1920 Hawaiian Homes Commission Act (HHCA) provides for "the rehabilitation of native Hawaiians." On page 2 of the proposed rules, the DoI informs readers that "The Department of the Interior interprets the term 'rehabilitation' to include political cultural and social reorganization that would facilitate the stated goals of rehabilitation.(1) By providing a clear process for the Department's review and approval of land exchanges and HHCA amendments, this regulation will further the goals of the HHCA, including rehabilitation." (emphasis added)
2) Page 25-26 of the proposed rules reads, "The Secretary will determine that Congressional approval is required if the proposed amendment ... Allows the use of proceeds and income from the Hawaiian home lands for purposes other than carrying out the provisions of the HHCA...."
3) The Hawaii State legislature then need only enact a bill amending the HHCA to authorize use of Department of Hawaiian Homelands (DHHL) funds for the "political reorganization" of native Hawaiians. Under the DoI interpretation outlined on page 2 the bill would be deemed to be in line with the intent of the HHCA. Based on this interpretation, the Secretary of Interior would determine that Congressional approval is unnecessary because the expenditure lies within the purposes of the HHCA. (The Legislature has at least twice approved bills including language authorizing the use of DHHL funds for "rehabilitation" through "political processes.")
The HHCA is written into the Hawaii Admission Act. The Admission Act of a State can only be amended by vote of both the state legislature and the US Congress. It is Congress which has consistently protected native Hawaiians from being turned into a fake Indian tribe by Hawaii's money grubbing politicians. The new DoI interpretation is an attempt to illegally sidestep Congress.
This explains why Robin Danner told the Star-Advertiser May 8, 2015: "We were high-fiving (upon learning the news.) It means the door is open and it can't be shut. This is just the beginning of what I anticipate will be five to six years of rule-making."
Based on their ability to comment on the contents of the proposed rules before they were released publicly, Danner and the Star-Advertiser apparently received an advance copy. In contrast, DHHL released a statement saying: "The Department of Hawaiian Home Lands has not had an opportunity to fully review the proposed rules and evaluate the potential impacts to the department and its beneficiaries." This one-sided preview shows the DoI process is already biased in favor of those who are pushing the fake Indian tribe.
What is the basis of the DoI's interpretation of the HHCA as including "political reorganization"?
A DoI footnote on page 3 refers to the original 1920 congressional debate leading to passage of the HHCA. There is no mention of "political" or of creating an Indian Tribe.* Instead the footnote provides a rationale for homesteading as a means to "take (native Hawaiians) back to the lands...."
Turn to the DoI's annotated version of the HHCA and search the word "political". The word pops up only four times, three of which are inconsequential. The ringer is found on page 34 which carries text similar to that included in the DoI's new "interpretation" of "rehabilitation." By following page 34 footnotes #234-237, the reader discovers the DoI is basing its interpretation on that of the Hawaii legislature, not the federal government. Specifically, Act 117 of 2002 and Act 187 of 2010, each of which contain the same solitary reference to "political":
...The department shall use (The Native Hawaiian Rehabilitation Fund) for the rehabilitation of native Hawaiians, native Hawaiian families, and Hawaiian homestead communities, which shall include the educational, economic, political, social, and cultural processes by which the general welfare and conditions of native Hawaiians are thereby improved and perpetuated...." (emphasis added)
This means the Hawaii Legislature has twice proposed to amend the HHCA to include "political processes" in the use of DHHL funds for "rehabilitation."
The Star-Advertiser's article announcing the proposed rules included tender morsels of disinformation which imply a federal trust responsibility for native Hawaiians such as:
"After nearly a century, the U.S. government for the first time is proposing administrative rules to clarify its oversight of the federally created land trust...."
For the federal government to take trust authority over native Hawaiians, ownership of all DHHL land would be transferred to the federal government.
The implication that Hawaiians have been waiting "nearly a century" for the DoI to show up and start making rules is blithering nonsense. To correct the Star-Advertiser we need only turn to page 4 of the proposed DoI rules for a less dishonest history of rulemaking and authority under HHCA--first in the hands of the Territorial government, then in the hands of the State government:
"During the territorial period of Hawai'i, the HHCA was included in the compilation of the Revised Laws of Hawai'i. Following Hawai'i's statehood, the HHCA was not repealed and remains in effect with elements of both Federal and State Jaw. The compilation of the HHCA was removed from the text of the United States Code and inserted into a note in the Code, recognizing the State's authority to amend provisions of the HHCA that do not alter the responsibilities of the United States or infringe upon its interests or the interests of the beneficiaries."
One might also look at the recitation of Federal Court precedents contained in a May, 1994 General Accounting Office report which explains:
"...a federal court’s views on a federal trust responsibility to native Hawaiians since Hawaii became a state were expressed in the Keaukaha-Panaewa Community Association v. Hawaiian Homes Commission case. In this case, the federal Court of Appeals for the Ninth Circuit held that the federal government currently has no trust responsibility for native Hawaiians, Instead, the court stated, the Hawaii Admission Act in 1959 vested primary responsibility for the management of native Hawaiian lands in the state, leaving only a 'tangential' role for the federal government. Subsequent court decisions have adhered to this reasoning. The Supreme Court of Hawaii has held that the federal government had a trust responsibility to native Hawaiians before Hawaii became a state and that the state assumed this responsibility with statehood...."
"Federal trust responsibility" is language used to justify federal recognition of Indian Tribes. But the HHCA is written into the Hawaii Admission Act and the Admission Act of a State can only be amended by vote of both the state legislature and the US Congress. The DoI proposed rules offer a path to deal with some long-standing problems related to the inherent difficulty of getting both the Legislature and Congress to act.
The "land exchange process" proposed in "Part 47" of the proposed DoI rules is intended to deal with DHHL lands, such as parts of Lualualei Naval Reservation and Hilo Airport, which, under the Territory, were "improperly transferred" to the use of the Federal Government.
The "Procedures to Amend the HHCA" contain the path to creation of a fake Indian Tribe (pg26) but would also clarify the process under which amendments to the HHCA such as changes to the inheritance rights of assignees which are now pending before Congress after being approved by the Hawaii State Legislature.
It is unfortunate that the solution to these problems has been tied to a trick to illegally force Hawaiians into becoming a fake Indian Tribe.
To slip the knot, the final rule would have to remove "political reorganization" from the DoI's interpretation of "rehabilitation" and replace it with:
"The federal government has no trust responsibility for native Hawaiians. Nothing in this rule shall be construed to provide for approval of the use of funds under the HHCA for political organization or reorganization of Native Hawaiians."
*On page 170 of the original debate on the HHCA, Rep Cassius Dowell of Iowa points out: "the Indian proposition is hardly a parallel with the question we have before us....because we have no government or tribe or organization to deal with here...."