Thursday, July 18, 2019
Hawai'i Free Press

Current Articles | Archives

Monday, October 05, 2015
Memo Outlines Reasons The Akaka Tribe Might be Very Disappointed with Interior Department
By Andrew Walden @ 5:37 AM :: 3209 Views :: Akaka Bill, DHHL, OHA

From: Fisher, Nina  (Rep Mark Takai's Honolulu office manager, formerly Hanabusa office manager)

Date: Tue, Sep 29, 2015 at 10:05 AM

Subject: FW: Memo on DOI Proposed Rules Re: Native Hawaiian Governing Entity

Sent: Tuesday, September 29, 2015 3:35 PM

Subject: Memo on DOI Proposed Rules Re: Native Hawaiian Governing Entity

Below and attached you find a memorandum on the Department of Interior’s proposed rules on the Reestablishment of a government-to-government relationship with a Native Hawaiian governing entity. The memo discusses what the DOI is proposing in regards to a reestablishment; but it does not spell out DOI’s responses to submitted comments on the Advanced Rulemaking Notice, nor does it go into detail of the history of the U.S. relationship with the Native Hawaiian community. For more information on the comment responses and history, please refer to the Federal Register copy of the rule.

MEMORANDUM

DT:     9/29/2015

RE:     Summary of DOI Proposed Rule re: Native Hawaiian Governing Entity

PURPOSE OF MEMO:

To provide background on a proposed rule released by the Department of Interior (DOI) on September 29, 2015 that establishes an administrative procedure and criteria for the U.S. to reestablish a formal government-to-government relationship with a Native Hawaiian Governing Entity.

BACKGROUND:

On September 29, 2015, the DOI released a proposed rule that creates an administrative procedure and criteria that the Secretary of the Interior would apply if the Native Hawaiian community forms a unified government that then seeks a formal government-to-government relationship with the United States. Under the new proposal, the Native Hawaiian community – not the Federal government—would decide whether to reorganize a Native Hawaiian government, what form that government would take, and whether it would seek a government-to-government relationship.

The proposed rule accomplishes four key things. First, it lays out the legal arguments for Native Hawaiian (NH) community’s right to a government-to-government relationship under existing law. Second, it outlines requirements a NH entity must meet before applying for a government-to-government relationship with the U.S.  Third, it differentiates rights of a Native Hawaiian governing entity and its members from those of federal recognized tribes. Fourth, the proposed rule reiterates that the reestablishment of a government-to-government relationship will not affect existing federal and state laws and rights.

1. The Native Hawaiian community has existing rights to a Government-to-Government Relationship.

The proposed rule sets out the legal argument that Congress has already granted the Native Hawaiian community rights of a distinct indigenous people through numerous laws, policies, and treaties enacted before and after the overthrow of the Hawaiian monarchy. Because the acknowledgment of the Native Hawaiian people’s unique standing exists in law, the Administration has the power to establish an administrative procedure and criteria for reestablishing a government to government relationship. This proposed rule sets out a draft of administrative rules, and clarifies recognition of a NH governing entity will be different than normal proceedings for American Indian tribal recognition.

2. A Native Hawaiian Governing Entity must meet certain requirements to gain a Government-to-Government Relationship.

The proposed rule sets out certain requirements for a Native Hawaiian governing entity to meet before it may be eligible for a government-to-government relationship with the U.S.  These requirements include:

  • In regards to membership, the NH government must (a) include Hawaiian Homes Commission Act (HHCA)-eligible NHs, (b) exclude Non-NHs, and (c) establish membership as voluntary; and may include NHs who are not HHCA-eligible NHs, or some defined subset of that group that is not contrary to Federal law. This means that NHs with less than 50% NH ancestry, the current threshold for HHCA-eligibility, can be excluded from membership to the NH government.
  • In regards to members’ rights, a NH government must include and maintain the unique status and separate rights of HHCA-eligible Native Hawaiians.
  • A NH government must have a governing body that is elected periodically and have a separation of legislative and judiciary bodies.
  • DOI will only accept the results of a referendum affirming a NH government and governing document if (a) at least 50,000 NHs vote, of which at least 15,000 HHCA-eligible NHs vote, and (b) at least 30,000 NHs vote in favor of the governing entity, of which at least 9,000 HHCA-eligible NHs vote in favor. The main take-away from this requirement is that ratification of a referendum establishing a NH government and governing document must have separate vote tallies for HHCA-eligible NH voters and all other NH voters.
  • A governing document must also protect and preserve the liberties, rights, and privileges of all persons affected by the NH government’s exercise of government powers in accordance with the Indian Civil Rights Act.

3. A Native Hawaiian Governing Entity will not have same rights and benefits as federally recognized tribes, unless an Act of Congress expressly provides otherwise.

The proposed rule maintains the status quo of programs and benefits to NHs and Tribes. If a government-to-government relationship is established, NHs will not automatically gain access to rights and benefits currently afforded to only Indian tribes and their members. Native Hawaiians will only have rights to programs and benefits currently specified in the law as being for, or including NHs. Eligibility for federal Indian programs, services, and benefits may only be extended to NHs through an act of Congress.

4. In general, reestablishment of a government-to-government relationship will not affect existing federal and state laws and rights.

First, under current definitions in the Indian Gaming Regulatory Act, a NH governing entity could not qualify for the gaming rights set out by IGRA.  Second, the reestablishment of a government-to-government relationship will not affect title, jurisdiction, or status of Federal lands and property in Hawaii with exception of Kahoolawe, which will be transferred to a NH government as directed by law. Third, although the proposed rule does not explicitly discuss this, given the assumption that NH eligibility would only be for those benefits already set out in law, a NH government would not be eligible for trust or “reservation” lands. The proposed rule does not, however, discuss or allude to whether a NH governing entity has the right to sovereign immunity.

Comment Period

The DOI is allowing for public comments until 90 days after October 1st. DOI explicitly asked for comments on certain topics, namely:

  • NH governing entity’s eligibility under the Indian Gaming Regulatory Act;
  • How many affirmative votes are needed for a governing document, in order for the U.S. to recognize a NH governing entity;
  • Who is eligible for membership;
  • Whether a NH government would have to meet the same requirements of Indian tribes to be federally recognized (“Part 83”); and
  • Whether references to “tribes” and “Indians” would encompass the NH governing entity and its members.

Two teleconferences with the public will be held on October 26th and November 7th. The DOI will also talk with select groups and organizations via closed teleconferences on October 27th and November 4th.

There is no indication of when the Administration will finalize the rules.

---30---

Related: Meet the New Sovereign: Interior Department Controls Voting Process After 'Aha

Remember What They Wanted:  2011 Akaka Bill grants Tribal officials broad immunity from Hawaii Criminal and Civil Laws

Links

TEXT "follow HawaiiFreePress" to 40404

Register to Vote

2aHawaii

808 Silent Majority

808 State Update AM940

ABCDEFG Blog

ACA Signups Hawaii

ACCE

Affordable Hawaii Coalition

ALEC

Alliance Defending Freedom

Aloha Conservative Alliance

Aloha Life Advocates

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

American Mothers of Hawaii

AMVETS-Hawaii

AntiPlanner

Antonio Gramsci Reading List

A Place for Women in Waipio

Audit The Rail

Ballotpedia Hawaii

Better Hawaii 

Blaisdell Memorial Project

Broken Trust

CAFR Hawaii

Castaway Conservative

Children's Alliance Hawaii

Children's Rights Institute

Christian Homeschoolers of Hawaii

Citizens for Recall

Cliff Slater's Second Opinion

Coffee Break

Conservative Forum for Hawaii

CSIS Pacific Forum

DAR Hawaii

DeedySupport.com

DVids Hawaii

E Hana Kakou Kelii Akina

E Māua Ola i Moku o Keawe

Farmers For Choice Hawaii

FIRE

Fix Oahu!

Follow the Money Hawaii

Frank in Hawaii

Front Page Magazine

Frontline: The Fixers

Genetic Literacy Project

Get Off Your Butts!

God, Freedom, America

Grassroot Institute

Habele.org

Hawaii Aganst Assisted Suicide

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii ConCon Info

Hawaii Credit Union Watch

Hawaii Crime Victims' Rights

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defending Marriage

Hawaii Defense Foundation

Hawaii Families for Educational Choice

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii Firearm Community

Hawaii Fishermen's Alliance

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii March for Life

Hawaii Meth Project

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Right to Life -- Big Island

Hawaii Right to Life -- Oahu

Hawaii Shield Law Coalition

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

Heritage Foundation

HI Coalition Against Legalized Gambling

HIEC.Coop 

HiFiCo

Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Homeless Crisis

Honolulu Navy League

Honolulu Traffic

Horns of Jericho Blog

House Minority Blog

House Republican Caucus YouTube

HPACC

Hump Day Report

I Vote Hawaii

If Hawaii News

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

Iowa Meets Maui

Jackson v Abercrombie

Jihad Watch

Judgepedia Hawaii

July 4 in Hawaii

Kahle v New Hope

Kakaako Cares

Kau TEA Party

Kauai Co GOP

Keep Hawaii's Heroes

KeyWiki

Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group

MentalIllnessPolicy.org

Middle East Forum--The Legal Project

Mililani Conservatives for Change

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

Muslim Brotherhood in America

NAMI Hawaii

NARTH

Natatorium.org

National Christian Foundation Hawaii

National Parents Org Hawaii

National Wind Watch

New Zeal

NFIB Hawaii News

No GMO Means No Aloha

Northwest Economic Policy Seminar

Not Dead Yet, Hawaii

Now What I Really Think

NRA-ILA Hawaii

Oahu Alternative Transport

ObamaCare Abortion Hawaii

Obookiah

OHA Lies

Opt Out Today

OurFutureHawaii.com

Pacific Aviation Museum

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons 

Pro-GMO Hawaii

P.U.E.O.

RailRipoff.com

Rental by Owner Awareness Assn

Republican Party -- Hawaii State

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

Salvage The Rail

Save the Plastic Bag

School Choice in Hawaii

SenatorFong.com

SIFE Remington

SIFE W. Oahu 

Sink the Jones Act

Smart About Marijuana--Hawaii

St Marianne Cope

State Budget Solutions Hawaii

State Policy Network

Statehood for Guam

Tax Foundation of Hawaii

The Harriet Tubman Agenda

The Long War Journal

The Real Hanabusa

Time Out Honolulu

Truth About Trade & Technology - Hawaii

UCC Truths

Union Members Know Your Rights

US Tax Foundation Hawaii Info

Valor in the Pacific

VAREP Honolulu

Waagey.org

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii

Yes2TMT