New Native American Tribal Regulations Implicate Hawaiian Sovereignty
by James Ching, Law.com, July 15, 2014
In two seemingly unconnected actions, the Interior Department in April and May of this year announced two regulatory initiatives with widespread impact on Native Hawaiians and Native Americans.
On May 27, 2014, the Interior Department issued an advance notice of proposed rulemaking stating that it “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.” (http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201404&RIN=1090-AB05 )
The Interior Secretary, in explicating her action as to the notice, opined: “Through this step, the Department is responding to requests from not only the Native Hawaiian community but also state and local leaders and interested parties who recognize that we need to begin a conversation of diverse voices to help determine the best path forward for honoring the trust relationship that Congress has created specifically to benefit Native Hawaiians.” (http://www.doi.gov/news/pressreleases/interior-considers-procedures-to-reestablish-a-government-to-government-relationship-with-the-native-hawaiian-community.cfm )
Laymen may be excused for not immediately understanding the true meaning of this opaque language. While obviously enigmatic, what did the Department hope to say, if anything? It seems unlikely that the Department plans to revive the Hawaiian monarchy. (http://www.law.com/sites/jamesching/2014/05/30/hawaiian-soverignty-by-fiat-interior-department-considers-granting-quasi-nation-status-through-administrative-rule-despite-bay-mills-indian-community-supreme-court-decision-on-tribal-status/ )
A clue to the words lies in a curious fact. The proposal has, naturally enough, been vetted in Hawaii at 15 locations in June and July. However, it is also being formally discussed at five Native American venues across the continental United States in late July and August.
Somehow, then, the Native American communities are stakeholders in Hawaiian sovereignty. Yet, simultaneously, Native Americans are the subject of monumentally-important revised Interior Department regulations on tribal formation. This proposed Federal Acknowledgment Rule, a substantial revision of 25 CFR 83, was announced on April 14 and will be the gatekeeper of future admissions of new tribal organizations in the future. No public or tribal meetings on the proposed revised Rule have been scheduled outside the continental United States and the Rule is explicitly limited to continental Native Americans.
Key features of the proposed rule would promote transparency by updating the Part 83 criteria to include objective standards for establishing the existence of a tribe; promote efficiency by requiring a petitioner to show community and political influence/authority from 1934 to the present rather than from as early as 1789; and eliminate the need for a petitioner to demonstrate that third parties identified the petitioner as a tribe from 1900 to the present. (http://www.bia.gov/cs/groups/xopa/documents/text/idc1-026770.pdf )
When a Native American group is acknowledged as an Indian tribe, the United States accepts trusteeship of tribal lands and natural resources and tribal governments and members become eligible to receive federal health, education, housing and other program and technical assistance services. These benefits derive from the recognized tribes’ ”government-to-government relationship with the United States . . . “ (25 CFR section 83.2)
This last phrase relating to Native American tribal recognition is identical to the “government-to-government relationship” mentioned in the Hawaiian advance notice of proposed rulemaking issued at the same time by the same Department. It is the sole link in the Department’s communications between Native American affairs and Hawaiian sovereignty.
Native American tribes, over the course of the existence of the United States, have acquired a unique status under Federal law. (Cherokee Nation v. Georgia, 30 U.S. 1 (1831)) “Indian tribes are ‘domestic dependent nations’ that exercise ‘inherent sovereign authority.’” As dependents, the tribes are subject to plenary control by Congress. Yet they remain “separate sovereigns pre-existing the Constitution.” (Michigan v. Bay Mills Indian Community, ___US___, No. 12-515 (05/27/14))
This is not true of Hawaii. King Kamehameha I united the Hawaiian Islands in 1810 and established the Kingdom of Hawaii. In 1872, the Kamehameha line was succeeded by the Kalakaua family, whose last representative was Queen Liliuokalani. Under pressure from a group of American businessmen, she abdicated her throne on January 17, 1893.
A provisional republic was declared and the Republic of Hawaii was established on July 4, 1894. On July 7, 1898, the Territory of Hawaii was created, followed by the Hawaiian Organic Act on February 22, 1900, which established a governmental structure. On March 18, 1959, the Hawaii Admission Act was passed and Hawaii became a state.
Thus, Hawaii has a clear political lineage distinct from Native American tribes. Once a Kingdom, the former monarchy became incorporated within the United States in 1898. The seemingly unalterable assimilation has no parallel in the history of the Native American tribes. The latter have always been dealt with as nominal nations, whatever the power balance between the tribes and the United States.
Hawaii could not engage in “government-to-government” relations with the United States, least of all under the advance notice of proposed rulemaking, because it is not a functioning government as did the Native American tribes. Thus, the same Part 83 rules governing Native American tribal recognition could not easily cover the recognition of Native Hawaiians.
Hawaii, then, seems to present a difficult problem for the Interior Department simply based on Hawaiian political and social history. It is not clear that Native Hawaiians would meet the stringent objective Part 83 criteria, among which are mandatory criteria relating to dealings with others as a unified political group while maintaining a large degree of cultural and social unity. (25 CFR section 83.7)
Such rigorous cultural and social criteria define the cohesion for a Native government and its political identity throughout Part 38. Federal acceptance of a Native government is no longer a matter of subjective testimony about individual identification.
For example, the following are indicative of “political influence or authority over its members as an autonomous entity from historical times until the present” for a Native American community:
“(i) More than 50 percent of the members reside in a geographical area exclusively or almost exclusively composed of members of the group, and the balance of the group maintains consistent interaction with some members of the community;
(ii) At least 50 percent of the marriages in the group are between members of the group;
(iii) At least 50 percent of the group members maintain distinct cultural patterns such as, but not limited to, language, kinship organization, or religious beliefs and practices;
(iv) There are distinct community social institutions encompassing most of the members, such as kinship organizations, formal or informal economic cooperation, or religious organizations . . . “ (25 CFR section 88.7(c)(1))
It is difficult to imagine that Native Hawaiians would qualify for recognition under these criteria given the degree of intermarriage, geographic dispersion, and speakers of the Hawaiian language. Similarly, it is unlikely that Native Americans, many of whom live on reservations which foster the closeness implicit in the criteria, would be happy about having the criteria lowered to match the Hawaiian situation.
Also relevant are the existence of “group leaders and/or other mechanisms that exist or existed which:
(i) Allocate group resources such as land, residence rights and the like on a consistent basis.
(ii) Settle disputes between members or subgroups by mediation or other means on a regular basis;
(iii) Exert strong influence on the behavior of individual members, such as the establishment or maintenance of norms and the enforcement of sanctions to direct or control behavior;
(iv) Organize or influence economic subsistence activities among the members, including shared or cooperative labor.” (25 CFR section 88.7(c)(2))
Here, the present situation of Native Hawaiians under exclusive state and municipal government jurisdictions may mitigate against qualification under these criteria. Once again, why would Native Americans consent to recognition of those who are socially scattered and manifestly are not under some form of tribal government?
As the ability of the United States to engage in treaties with groups like Native Hawaiians was eliminated in 1871 (25 USCA section 71), Part 83 regulation is now the only avenue for tribal recognition and this administrative regulation of tribal recognition, Part 83 or something like it, must apply in the future to recognition of Native Hawaiians. After all, any regulation designed for Native Hawaiians must resemble Part 38 simply because the United States could not allow tribal recognition standards to vary from one people to another.
Not being a tribe, Native Hawaiians have been ruled a race. The Office of Hawaiian Affairs was created by the Hawaii Constitutional Convention of 1978. OHA was created as a public trust, with a mandate to better the conditions of both Native Hawaiians and the Hawaiian community in general. OHA is funded with a pro rata share of revenues from state lands designated as ceded by the predecessor royal government to the state.
In 2000, OHA was the subject of Rice v. Cayetano, 528 US 495 (2000). The Supreme Court held that the ancestry classification, “Hawaiian,” as provided in Article XII of the Hawaiian State Constitution, is race-based. Therefore, limiting voter eligibility to elect OHA trustees to “Hawaiians” violated the Fifteenth Amendment.
Native Hawaiians were a race subject to constitutional discrimination laws and they would not be subject to these limitations if they were a tribe. The issue governing Hawaiian sovereignty is thorny because a tribe may maintain racial classifications for the distribution of state and Federal funds, grants, and trust benefits while racial preferences are forbidden under the Constitution. Only if Native Hawaiians positively achieve tribal sovereign status will these benefits be preserved.
Assuming that Part 83-like recognition is not available for Native Hawaiians and yet Native Hawaiians face the elimination of all earmarked benefits for them as a race because of constitutional considerations, the Department has several alternatives. First, and most obviously, the Secretary could “propose an administrative rule that would facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community.” (http://www.doi.gov/news/pressreleases/interior-considers-procedures-to-reestablish-a-government-to-government-relationship-with-the-native-hawaiian-community.cfm)
The Secretary’s proposal for a possible regulation begs the question of which criteria in such a regulation would maintain the rule of law as to tribal recognition and yet admit the Native Hawaiians. This approach creates a Hobson’s choice. Native Americans have an interest in maintaining a uniform gateway to tribal status and Native Hawaiians have possible difficulties under the Part 83 objective procedures in establishing tribal status. Indeed, the fact that Native Hawaiians have not been included in the proposed Part 83 is strong confirmation that those standards may prove too rigorous for Native Hawaiians.
Somewhat more problematically, the Secretary could assume there was a Native Hawaiian government in existence and “rely on the reorganization of a Native Hawaiian government through a process established by the Native Hawaiian community and facilitated by the State of Hawaii, to the extent such a process is consistent with Federal law.”
The second action proposed by the Secretary fails because of its circularity. If Hawaii were a government, it would be a government for the specific purpose of tribal recognition. Unfortunately, it is an extinguished government, and therefore, no government at all.
This logical weakness is illustrated in two ancillary goals under this alternative, reorganization of the Native Hawaiian community’s “government, with which the United States could reestablish a government-to-government relationship” and the “drafting and ratifying a reorganized Native Hawaiian government’s constitution or other governing document.” Implicit in these two aims is the suggestion that there is presently no functioning organization or governing document and therefore no government. This conclusion is reinforced by the fact that every governmental function in Hawaii is performed for all by the state and municipal administrations. There are no tribal Hawaiian courts, tribal reservation, or separate legal codes. (http://www.doi.gov/news/pressreleases/interior-considers-procedures-to-reestablish-a-government-to-government-relationship-with-the-native-hawaiian-community.cfm)
When this reorganized government will emerge for the purposes of tribal recognition is unknown and subject to the implementation of state and Federal legislation enabling the process. This is, to say the least, untested ground. Whereas, as noted above, prior to 1871 the United States simply de facto determined the existence of a Native government by creating a treaty with it, Part 83 now shows how modern recognition has to take place. Is any other mandate for Native Hawaiians possible?
Related: Hawaiian Sovereignty by Fiat? Feds 'advance notice' not a serious proposal