by Andrew Walden
Proposed Interior Department rules creating a path to administratively turn Hawaiian Homelands into a fake Indian Tribe parallel a year-long Obama administration push to take the tribal recognition process in the other 49 states away from Congress.
The proposed Federal rule for Hawaiian Homelands 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...." Since "provisions of the HHCA," as interpreted by DoI, include, "political cultural and social reorganization", the Secretary would logically conclude that Congressional approval is not required to "politically reorganize" DHHL into a fake Indian Tribe.
Meanwhile, since May 23, 2014, the Bureau of Indian Affairs has been pursuing proposed rule #RIN 1076-AF18 "Federal Acknowledgment of American Indian Tribes" which "establishes the Assistant Secretary's final determination as final...." But this proposed rule carries standard language which illustrates why a separate rule would be necessary to create a fake Indian tribe in Hawaii: "This part applies only to entities that self-identify as Indian tribes, are located in the continental United States and believe they meet the criteria for Federal acknowledgement.... Continental United States means the contiguous 48 states and Alaska."
A bipartisan group of five Congressmen protested the DoI power grab in a March 26, 2015 letter to Interior Secretary Sally Jewel, writing: "the procedures are not based on standards or guidelines established by Congress, whose power to regulate Indian affairs under Article 1, Section 8 of the Constitution has been characterized by the Supreme Court as 'plenary' and 'exclusive'...."
An April 20, 2015 memo from House Subcommittee on Indian, Insular, and Alaska Native Affairs Subcommittee Chair Don Young warns, "The Department's proposed rule...relaxes the standards by which a petitioner may obtain recognition, leading to a concern the Department will create a tribe, not recognize an historic tribe." Young also points out: "...in the context of federal Indian policy, the terms 'acknowledgement' and 'recognition' are used interchangeably...."
The proposed rule provoked an angry exchange in the April 22, 2015 meeting of the House Committee on Natural Resources after Assistant Interior Secretary Kevin Washburn reiterated the Administration's intent is to recognize Indian tribes without Congressional approval. (See video below.)
Federal Register: RIN 1076-AF18
March 26, 2015: Letter to Jewell
April 20, 2015: Memo from Rep Don Young
Draft DoI Rules Create Path for Fake Indian Tribe to Take Over DHHL
Feds Grab for Rule-Making Authority over Hawaiian Homelands