The Department of Interior (DOI) has published in the FEDERAL REGISTER an Advance Notice of Proposed Rulemaking (ANPRM) to solicit public comments on whether and how DOI should facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community. DOI has conducted a series of public meetings in Hawaii and will conduct a series of consultations with federally recognized tribes in the continental United States this July and August (dates and locations listed below). Comments on the ANPRM are due by August 19, 2014.
Background. DOI explains that while Congress has recognized a “special political and trust relationship” with the Native Hawaiian community over the years, evidenced by the enactment of over 150 statutes, many of which provide programs and services analogous to those provided to federally recognized Indian tribes, there has been no government-to-government relationship since 1893–the year the Kingdom of Hawaii was overthrown with significant assistance from “agents and citizens of the United States.” Referencing findings detailed in the joint resolution Congress enacted in 1993 to acknowledge the 100th anniversary of the overthrow of the Kingdom of Hawaii and to offer an apology to Native Hawaiians (PL 103-150, “the Apology Resolution”) DOI explains that prior to the overthrow of the Kingdom, the federal government had entered into treaties and conventions with the Hawaiian monarch in 1826, 1849, 1875, and 1887 and that at first European contact in 1778 “the Native Hawaiian people lived in a highly organized, self-sufficient, subsistent social system based on communal land tenure with a sophisticated language, culture, and religion.”
While in 1993 Congress was successful in enacting the Apology Resolution, congressional efforts since then to enact legislation to facilitate the reorganization of a Native Hawaiian governing entity with which the federal government could reestablish a government-to-government relationship have proven unsuccessful for a variety of political reasons. Many of these bills would have set forth some form of a process whereby: the Sectary of Interior would appoint a Commission for approving a Roll of “qualified Native Hawaiian constituents;” the Commission would create a framework for a Council to be elected from members of the Roll; and the elected Councilmembers would then draft the constitution or other governing documents which would then need to be ratified by members of the Roll. See our General Memoranda 09-059 of May 15, 2009; 10-031 of March 12, 2010; and 11-061 of May 20, 2011.
This notice seeks comments on whether DOI should propose an administrative rule which would facilitate the reestablishment of the government-to-government relationship between the federal government and 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.”
Reasoning. DOI states “In recent years, the Department has increasingly heard from Native Hawaiians who assert that their community’s opportunities to thrive would be significantly bolstered by reorganizing a sovereign Native Hawaiian government that could engage the United States in a government-to-government relationship, exercise inherent sovereign powers of self-governance and self-determination, and enhance the implementation of programs and services that Congress has created specifically to benefit the Native Hawaiian community.” These statements echo findings in the Departments of Interior and Justice’s joint report on the reconciliation process between the federal government and Native Hawaiians of October 23, 2000 titled: From Mauka to Makai: The River of Justice Must Flow Freely. The joint report recommends as its top priority that “the Native Hawaiian people should have self-determination over their own affairs within the framework of Federal law.”
Comments Sought. DOI seeks comments on five initial “threshold questions” regarding whether they should facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community and then, if the determination is that they should, how this should be done.
Regarding the “whether?” part of the question, DOI first explains what a proposed rule would not do. It would not: alter the fundamental nature of the political and trust relationship established by Congress between the United States and the Native Hawaiian community; authorize compensation for past wrongs; or have any direct impact on the status of the Hawaiian home lands. Further, a proposed rule would not determine: the contents of a reorganized Native Hawaiian government’s constitution or other governing document (if one were adopted); how that Native Hawaiian government might be structured; or what powers that Native Hawaiian government might exercise. Finally, the DOI makes clear that because “Congress has consistently enacted programs and services expressly and specifically for the Native Hawaiian community that are . . . separate from the programs and services that Congress has enacted for federally recognized tribes in the continental United States” that they do not anticipate that that the reestablishment of a government-to-government relationship with the Native Hawaiian community would “alter or affect the programs and services that the United States currently provides to federally recognized tribes in the continental United States.”
Regarding the “how?” part of the question, DOI seeks comments on two scenarios. Scenario 1: the Secretary of Interior would assist the Native Hawaiian community in reorganizing its government; or Scenario 2: the Secretary would 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.
Regarding the first proposed scenario DOI asks: What process should be established for drafting and ratifying a reorganized Native Hawaiian government’s constitution or governing document? DOI makes clear that they are not seeking comments on the membership or citizenship criteria that the Native Hawaiian community may adopt in its constitution or other governing documents, rather, they are seeking input on which individuals should be eligible to participate in the process of reorganization which would include the drafting and ratification of these governing documents.
Regarding the second proposed scenario DOI asks: What conditions should the Secretary establish as prerequisites to federal acknowledgment of a government-to-government relationship with the reorganized Native Hawaiian government?
Additional Questions. Expanding upon the five initial “threshold questions” described above DOI also seeks comments on the following topics:
• Criteria for Inclusion on the Roll of the Persons Eligible to Participate in the Reorganization
• The Process for Preparing a Roll of Persons Eligible to Participate in the Reorganization
• Drafting a Constitution for a Native Hawaiian Government
• Federal Acknowledgment of an Already Reorganized Native Hawaiian Government
Consultation. DOI will conduct a series of consultations with federally recognized tribes in the continental United States at the following dates and locations:
• July 29, 9 a.m.–noon Mystic Lake Casino, Prior Lake, MN
• July 30, 1 p.m.–4 p.m. Rushmore Civic Center, Rapid City, SD
• August 1, 9 a.m.–noon Tulalip Resort, Seattle, WA
• August 5, 9 a.m.–noon Talking Stick Resort, Scottsdale, AZ
• August 7, 9 a.m.–noon Mohegan Sun, Uncasville, CT
Next Steps. If DOI decides to issue a Notice of Proposed Rulemaking (NRPM), the NRPM will include a tribal summary impact statement that reflects comments received from tribal officials in response to the ANPRM. Publication of the NPRM will also open a second round of tribal consultation and another formal comment period before DOI would publish a final rule. DOI estimates that a final rule could be published as soon as 18-24 months after the publication of the ANPRM.
• The FEDERAL REGISTER notice is available here: http://www.gpo.gov/fdsys/pkg/FR-2014-06-20/pdf/2014-14430.pdf
• A Frequently Asked Questions document, compiled by the Department of Interior is available here: http://www.doi.gov/ohr/reorg/loader.cfm?csModule=security/getfile&pageid=537831
• The Departments of Interior and Justice’s joint report From Mauka to Makai: The River of Justice Must Flow Freely is available here: http://permanent.access.gpo.gov/websites/doigov/www.doi.gov/nativehawaiians/pdf/1023fin.pdf
Please let us know if we may provide additional information regarding the Department of Interior’s Advance Notice of Proposed Rulemaking or if we may be of assistance preparing comments.