Procedures for Reestablishing a Formal Government-to-Government Relationship With the Native Hawaiian Community, 59113-59132 [2015-24712]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of the Secretary

[Federal Register Volume 80, Number 190 (Thursday, October 1, 2015)]
[Proposed Rules]
[Pages 59113-59132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-24712]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 50

[Docket No. DOI-2015-0005]; [145D0102DM DS6CS00000 DLSN00000.000000 
DX.6CS25 241A0]
RIN 1090-AB05


Procedures for Reestablishing a Formal Government-to-Government 
Relationship With the Native Hawaiian Community

AGENCY: Office of the Secretary, Department of the Interior.

ACTION: Proposed rule.

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SUMMARY: The Secretary of the Interior (Secretary) is proposing an 
administrative rule to facilitate the reestablishment of a formal 
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. The proposed rule does not attempt to reorganize a 
Native Hawaiian government or draft its constitution, nor does it 
dictate the form or structure of that government. Rather, the proposed 
rule would establish an administrative procedure and criteria that the 
Secretary would use if the Native Hawaiian

[[Page 59114]]

community forms a unified government that then seeks a formal 
government-to-government relationship with the United States. 
Consistent with the Federal policy of indigenous self-determination and 
Native self-governance, the Native Hawaiian community itself would 
determine whether and how to reorganize its government.

DATES: Comments on this proposed rule must be received on or before 
December 30, 2015. Please see SUPPLEMENTARY INFORMATION for dates and 
locations of public meetings and tribal consultations.

ADDRESSES: You may submit comments by either of the methods listed 
below. Please use Regulation Identifier Number 1090-AB05 in your 
message.
    1. Federal eRulemaking portal: https://www.regulations.gov. Follow 
the instructions on the Web site for submitting and viewing comments. 
The rule has been assigned Docket ID DOI-2015-0005.
    2. Email: part50@doi.gov. Include the number 1090-AB05 in the 
subject line.
    3. U.S. mail, courier, or hand delivery: Office of the Secretary, 
Department of the Interior, Room 7228, 1849 C Street NW., Washington, 
DC 20240.
    We request that you send comments only by one of the methods 
described above. We will post all comments on https://www.regulations.gov. This generally means that we will post any 
personal information you provide us.

FOR FURTHER INFORMATION CONTACT: Antoinette Powell, telephone (202) 
208-5816 (not a toll-free number); part50@doi.gov.

SUPPLEMENTARY INFORMATION:

Public Comment

    The Secretary is proposing an administrative rule to provide a 
procedure and criteria for reestablishing a formal government-to-
government relationship between the United States and the Native 
Hawaiian community. The Department would like to hear from leaders and 
members of the Native Hawaiian community and of federally recognized 
tribes in the continental United States (i.e., the contiguous 48 States 
and Alaska). We also welcome comments and information from the State of 
Hawaii and its agencies, other government agencies, and members of the 
public. We encourage all persons interested in this Notice of Proposed 
Rulemaking to submit comments on the proposed rule.
    To be most useful, and most likely to inform decisions on the 
content of a final administrative rule, comments should:

--Be specific;
--Be substantive;
--Explain the reasoning behind the comments; and
--Address the proposed rule.

    Most laws and other sources cited in this proposal will be 
available on the Department of the Interior's Office of Native Hawaiian 
Relations (ONHR) Web site at https://www.doi.gov/ohr/.

I. Background

    Over many decades, Congress enacted more than 150 statutes 
recognizing and implementing a special political and trust relationship 
with the Native Hawaiian community. Among other things, these statutes 
create programs and services for members of the Native Hawaiian 
community that are in many respects analogous to, but separate from, 
the programs and services that Congress enacted for federally 
recognized tribes in the continental United States. But during this 
same period, the United States has not partnered with Native Hawaiians 
on a government-to-government basis, at least partly because there has 
been no formal, organized Native Hawaiian government since 1893, when a 
United States officer, acting without authorization of the U.S. 
government, conspired with residents of Hawaii to overthrow the Kingdom 
of Hawaii. Many Native Hawaiians contend that their community's 
opportunities to thrive would be significantly bolstered by 
reorganizing their sovereign Native Hawaiian government to engage the 
United States in a government-to-government relationship, exercise 
inherent sovereign powers of self-governance and self-determination on 
par with those exercised by tribes in the continental United States, 
and facilitate the implementation of programs and services that 
Congress created specifically to benefit the Native Hawaiian community.
    The United States has a unique political and trust relationship 
with federally recognized tribes across the country, as set forth in 
the United States Constitution, treaties, statutes, Executive Orders, 
administrative regulations, and judicial decisions. The Federal 
Government's relationship with these tribes is guided by a trust 
responsibility--a longstanding, paramount commitment to protect their 
unique rights and ensure their well-being, while respecting their 
inherent sovereignty. In recognition of that special commitment--and in 
fulfillment of the solemn obligations it entails--the United States, 
acting through the Department of the Interior (Department), developed 
processes to help tribes in the continental United States establish 
government-to-government relationships with the United States.
    Strong Native governments are critical to tribes' exercising their 
inherent sovereign powers, preserving their culture, and sustaining 
prosperous and resilient Native American communities. It is especially 
true that, in the current era of tribal self-determination, formal 
government-to-government relationships between tribes and the United 
States are enormously beneficial not only to Native Americans but to 
all Americans. Yet the benefits of a formal government-to-government 
relationship have long been denied to members of one of the Nation's 
largest indigenous communities: Native Hawaiians. This proposed rule 
provides a process to reestablish a formal government-to-government 
relationship with the Native Hawaiian community.

A. The Relationship Between the United States and the Native Hawaiian 
Community

    Native Hawaiians are the aboriginal, indigenous people who settled 
the Hawaiian archipelago as early as 300 A.D., exercised sovereignty 
over their island archipelago and, over time, founded the Kingdom of 
Hawaii. See S. Rep. No. 111-162, at 2-3 (2010). During centuries of 
self-rule and at the time of Western contact in 1778, ``the Native 
Hawaiian people lived in a highly organized, self-sufficient 
subsistence social system based on a communal land tenure system with a 
sophisticated language, culture, and religion.'' 20 U.S.C. 7512(2); 
accord 42 U.S.C. 11701(4). Although the indigenous people shared a 
common language, ancestry, and religion, four independent chiefdoms 
governed the eight islands until 1810, when King Kamehameha I unified 
the islands under one Kingdom of Hawaii. See Rice v. Cayetano, 528 U.S. 
495, 500-01 (2000). See generally Davianna Pomaikai McGregor & Melody 
Kapilialoha MacKenzie, Moolelo Ea O Na Hawaii: History of Native 
Hawaiian Governance in Hawaii (2014), available at https://www.regulations.gov/#!documentDetail;D=DOI-2014-0002-0005 (comment 
number 2438) [hereinafter Moolelo Ea O Na Hawaii].
    Throughout the nineteenth century and until 1893, the United States 
``recognized the independence of the Hawaiian Nation,'' ``extended full 
and complete diplomatic recognition to the Hawaiian Government,'' and 
entered into several treaties with the Hawaiian monarch. 42 U.S.C. 
11701(6); accord 20 U.S.C. 7512(4); see Rice, 528 U.S. at 504 (citing 
treaties that the two countries signed in 1826, 1849, 1875, and 1887);

[[Page 59115]]

Moolelo Ea O Na Hawaii 169-71, 195-200. But during that same period, 
Westerners became ``increasing[ly] involve[d] . . . in the economic and 
political affairs of the Kingdom,'' leading to the overthrow of the 
Kingdom in 1893 by a small group of non-Hawaiians, aided by the United 
States Minister to Hawaii and the Armed Forces of the United States. 
Rice, 528 U.S. at 501, 504-05. See generally Moolelo Ea O Na Hawaii 
313-25; S. Rep. No. 111-162, at 3-6 (2010); Cohen's Handbook of Federal 
Indian Law sec. 4.07[4][b], at 360-61 (2012 ed.).
    Following the overthrow of Hawaii's monarchy, Queen Liliuokalani, 
while yielding her authority under protest to the United States, called 
for reinstatement of Native Hawaiian governance. Joint Resolution of 
November 23, 1993, 107 Stat. 1511. The Native Hawaiian community 
answered, alerting existing Native Hawaiian political organizations and 
groups from throughout the islands to reinstate the Queen and resist 
the newly formed Provisional Government and any attempt at annexation. 
See Moolelo Ea O Na Hawaii at 36-39. In 1895, Hawaiian nationalists 
loyal to Queen Liliuokalani attempted to regain control of the Hawaiian 
government. Id. at 39-40. These attempts resulted in hundreds of 
arrests and convictions, including the arrest of the Queen herself, who 
was tried and found guilty of misprision or concealment of treason. The 
Queen was subsequently forced to abdicate. Id. These events, however, 
did little to suppress Native Hawaiian opposition to annexation. During 
this period, civic organizations convened a series of large public 
meetings of Native Hawaiians opposing annexation by the United States 
and led a petition drive that gathered 21,000 signatures, mostly from 
Native Hawaiians, opposing annexation (the ``Kue Petitions''). See 
Moolelo Ea O Na Hawaii 342-45.
    The United States nevertheless annexed Hawaii ``without the consent 
of or compensation to the indigenous people of Hawaii or their 
sovereign government who were thereby denied the mechanism for 
expression of their inherent sovereignty through self-government and 
self-determination.'' 42 U.S.C. 11701(11). The Republic of Hawaii ceded 
its land to the United States, and Congress passed a joint resolution 
annexing the islands in 1898. See Rice, 528 U.S. at 505. The Hawaiian 
Organic Act, enacted in 1900, established the Territory of Hawaii, 
placed ceded lands under United States control, and directed the use of 
proceeds from those lands to benefit the inhabitants of Hawaii. Act of 
Apr. 30, 1900, 31 Stat. 141.
    Hawaii was a U.S. territory for six decades prior to 1959, and 
during much of this period, educated Native Hawaiians, and a government 
led by them, were perceived as threats to the incipient territorial 
government. Consequently, the use of the Hawaiian language in education 
in public schools was declared unlawful. 20 U.S.C. 7512(19). But 
various entities connected to the Kingdom of Hawaii adopted other 
methods of continuing their government and education. Specifically, the 
Royal Societies, the Bishop Estate (now Kamehameha Schools), the Alii 
trusts, and civic clubs are examples of Native Hawaiians' continuing 
efforts to keep their culture, language, and community alive. See 
Moolelo Ea O Na Hawaii 456-58. Indeed, post annexation, Native 
Hawaiians maintained their separate identity as a single distinct 
political community through a wide range of cultural, social, and 
political institutions, as well as through efforts to develop programs 
to provide governmental services to Native Hawaiians. For example, 
Ahahui Puuhonua O Na Hawaii (Hawaiian Protective Association) was a 
political organization formed in 1914 under the leadership of Prince 
Jonah Kuhio Kalanianaole (Prince Kuhio) alongside other Native Hawaiian 
political leaders. Its principal purposes were to maintain unity among 
Native Hawaiians, protect Native Hawaiian interests (including by 
lobbying the territorial legislature), and promote the education, 
health, and economic development of Native Hawaiians. It was organized 
``for the sole purpose of protecting the Hawaiian people and of 
conserving and promoting the best things of their tradition.'' Hawaiian 
Homes Commission Act, 1920: Hearing on H.R. 13500 Before the S. Comm. 
on Territories, 66th Cong., 3d Sess. 44 (1920) (statement of Rev. 
Akaiko Akana). See generally Moolelo Ea O Na Hawaii 405-10. The 
Association established 12 standing committees, published a newspaper, 
undertook dispute resolution, promoted the education and the social 
welfare of the Native Hawaiian community, and developed the framework 
that eventually became the Hawaiian Homes Commission Act (HHCA). In 
1918, Prince Kuhio, who served as the Territory of Hawaii's Delegate to 
Congress, and other prominent Hawaiians founded the Hawaiian Civic 
Clubs, whose goal was ``to perpetuate the language, history, 
traditions, music, dances and other cultural traditions of Hawaii.'' 
McGregor, Aina Hoopulapula: Hawaiian Homesteading, 24 Hawaiian J. of 
Hist. 1, 5 (1990). The clubs' first project was to secure enactment of 
the HHCA in 1921 to set aside and protect Hawaiian home lands.

B. Congress's Recognition of Native Hawaiians as a Political Community

    By 1919, the decline in the Native Hawaiian population--by some 
estimates from several hundred thousand in 1778 to only 22,600--led 
Delegate Prince Kuhio Kalanianaole, Native Hawaiian politician and 
Hawaiian Civic Clubs co-founder John Wise, and U.S. Secretary of the 
Interior John Lane to recommend to Congress that land be set aside to 
help Native Hawaiians reestablish their traditional way of life. See 
H.R. Rep. No. 66-839, at 4 (1920); 20 U.S.C. 7512(7). This 
recommendation resulted in enactment of the HHCA, which designated 
tracts totaling approximately 200,000 acres on the different islands 
for exclusive homesteading by eligible Native Hawaiians. Act of July 9, 
1921, 42 Stat. 108; see also Rice, 528 U.S. at 507 (HHCA's stated 
purpose was ``to rehabilitate the native Hawaiian population'') (citing 
H.R. Rep. No. 66-839, at 1-2 (1920)); Moolelo Ea O Na Hawaii 410-12, 
421-33. The HHCA limited benefits to Native Hawaiians with a high 
degree of Native Hawaiian ancestry, suggesting a Congressional 
understanding that Native Hawaiians frequently had two Native Hawaiian 
parents and many Native Hawaiian ancestors, which indicated that this 
group maintained a distinct political community. The HHCA's proponents 
repeatedly referred to Native Hawaiians as a ``people'' (at times, as a 
``dying people'' or a ``noble people''). See, e.g., H.R. Rep. No. 66-
839, at 2-4 (1920); see also 59 Cong. Rec. 7453 (1920) (statement of 
Delegate Prince Kuhio) (``[I]f conditions continue to exist as they do 
today . . ., my people . . . will pass from the face of the earth.'').
    In 1938, Congress again exercised its trust responsibility by 
granting Native Hawaiians exclusive fishing rights in the Hawaii 
National Park. Act of June 20, 1938, ch. 530, sec. 3(a), 52 Stat. 784.
    In 1959, as a condition of statehood, the Hawaii Admission Act 
required the State of Hawaii to manage and administer two public trusts 
for the indigenous Native Hawaiian people. Act of March 19, 1959, 73 
Stat. 4. First, the Federal Government required the State to adopt the 
HHCA as a provision of its constitution, which effectively ensured 
continuity of the Hawaiian home lands program. Id. sec. 4, 73 Stat. 5. 
Second, it required the State to manage a Congressionally mandated 
public land

[[Page 59116]]

trust for the benefit of the general public and Native Hawaiians. Id. 
sec. 5(f), 73 Stat. 6 (requiring that lands transferred to the State be 
held by the State ``as a public trust . . . for [among other purposes] 
the betterment of the conditions of native Hawaiians, as defined in the 
[HHCA], as amended''). In addition, the Federal Government maintained a 
continuing role in the management and disposition of the home lands. 
See Admission Act Sec.  4; Hawaiian Home Lands Recovery Act (HHLRA), 
Act of November 2, 1995, 109 Stat. 357.
    Since Hawaii's admission to the United States, Congress has enacted 
dozens of statutes on behalf of Native Hawaiians pursuant to the United 
States' recognized political relationship and trust responsibility. The 
Congress:
     Established special Native Hawaiian programs in the areas 
of health care, education, loans, and employment. See, e.g., Native 
Hawaiian Health Care Improvement Act, 42 U.S.C. 11701-11714; Native 
Hawaiian Education Act, 20 U.S.C. 7511-7517; Workforce Investment Act 
of 1998, 29 U.S.C. 2911; Native American Programs Act of 1974, 42 
U.S.C. 2991-2992.
     Enacted statutes to study and preserve Native Hawaiian 
culture, language, and historical sites. See, e.g., 16 U.S.C. 396d(a); 
Native American Languages Act, 25 U.S.C. 2901-2906; National Historic 
Preservation Act of 1966, 54 U.S.C. 302706.
     Extended to the Native Hawaiian people many of ``the same 
rights and privileges accorded to American Indian, Alaska Native, 
Eskimo, and Aleut communities'' by classifying Native Hawaiians as 
``Native Americans'' under numerous Federal statutes. 42 U.S.C. 
11701(19); accord 20 U.S.C. 7902(13); see, e.g., American Indian 
Religious Freedom Act, 42 U.S.C. 1996-1996a. See generally 20 U.S.C. 
7512(13) (noting that ``[t]he political relationship between the United 
States and the Native Hawaiian people has been recognized and 
reaffirmed by the United States, as evidenced by the inclusion of 
Native Hawaiians'' in many statutes); accord 114 Stat. 2874-75, 2968-69 
(2000).
    In a number of enactments, Congress expressly identified Native 
Hawaiians as ``a distinct and unique indigenous people with a 
historical continuity to the original inhabitants of the Hawaiian 
archipelago,'' 42 U.S.C. 11701(1); accord 20 U.S.C. 7512(1), with whom 
the United States has a ``special'' ``trust'' relationship, 42 U.S.C. 
11701(15), (16), (18), (20); 20 U.S.C. 7512(8), (10), (11), (12). And 
when enacting Native Hawaiian statutes, Congress expressly stated in 
accompanying legislative findings that it was exercising its plenary 
power over Native American affairs: ``The authority of the Congress 
under the United States Constitution to legislate in matters affecting 
the aboriginal or indigenous peoples of the United States includes the 
authority to legislate in matters affecting the native peoples of 
Alaska and Hawaii.'' 42 U.S.C. 11701(17); see H.R. Rep. No. 66-839, at 
11 (1920) (finding constitutional precedent for the HHCA ``in previous 
enactments granting Indians . . . special privileges in obtaining and 
using the public lands''); see also 20 U.S.C. 7512(12)(B).
    In 1993, Congress enacted a joint resolution to acknowledge the 
100th anniversary of the overthrow of the Kingdom of Hawaii and to 
offer an apology to Native Hawaiians. Joint Resolution of November 23, 
1993, 107 Stat. 1510. In that Joint Resolution, Congress acknowledged 
that the overthrow of the Kingdom of Hawaii thwarted Native Hawaiians' 
efforts to exercise their ``inherent sovereignty'' and ``right to self-
determination,'' and stated that ``the Native Hawaiian people are 
determined to preserve, develop, and transmit to future generations 
their ancestral territory and their cultural identity in accordance 
with their own spiritual and traditional beliefs, customs, practices, 
language, and social institutions.'' Id. at 1512-13; see 20 U.S.C. 
7512(20); 42 U.S.C. 11701(2). In light of those findings, Congress 
``express[ed] its commitment to acknowledge the ramifications of the 
overthrow of the Kingdom of Hawaii, in order to provide a proper 
foundation for reconciliation between the United States and the Native 
Hawaiian people.'' Joint Resolution of November 23, 1993, 107 Stat. 
1513.
    Following a series of hearings and meetings with the Native 
Hawaiian community in 1999, the U.S. Departments of the Interior and 
Justice issued ``From Mauka to Makai: The River of Justice Must Flow 
Freely,'' a report on the reconciliation process between the Federal 
Government and Native Hawaiians. The report recommended as its top 
priority that ``the Native Hawaiian people should have self-
determination over their own affairs within the framework of Federal 
law.'' Department of the Interior & Department of Justice, From Mauka 
to Makai 4 (2000).
    In recent statutes, Congress again recognized that ``Native 
Hawaiians have a cultural, historic, and land-based link to the 
indigenous people who exercised sovereignty over the Hawaiian Islands, 
and that group has never relinquished its claims to sovereignty or its 
sovereign lands.'' 20 U.S.C. 7512(12)(A); accord 114 Stat. 2968 (2000); 
see also id. at 2966; 114 Stat. 2872, 2874 (2000); 118 Stat. 445 
(2004). Congress noted that the State of Hawaii ``recognizes the 
traditional language of the Native Hawaiian people as an official 
language of the State of Hawaii, which may be used as the language of 
instruction for all subjects and grades in the public school system,'' 
and ``promotes the study of the Hawaiian culture, language, and history 
by providing a Hawaiian education program and using community expertise 
as a suitable and essential means to further the program.'' 20 U.S.C. 
7512(21); see also 42 U.S.C. 11701(3) (continued preservation of Native 
Hawaiian language and culture). Congress's efforts to protect and 
promote the traditional Hawaiian language and culture demonstrate that 
Congress has recognized a continuing Native Hawaiian community. In 
addition, at the State level, recently enacted laws mandated that 
members of certain State councils, boards, and commissions complete a 
training course on Native Hawaiian rights and approved traditional 
Native Hawaiian burial and cremation customs and practices. See Act 
169, Sess. L. Haw. 2015; Act 171, Sess. L. Haw. 2015. These State 
actions similarly reflect recognition by the State government of a 
continuing Native Hawaiian community.
    Congress consistently enacted programs and services expressly and 
specifically for the Native Hawaiian community that are in many 
respects analogous to, but separate from, the programs and services 
that Congress enacted for federally recognized tribes in the 
continental United States. As Congress has explained, it ``does not 
extend services to Native Hawaiians because of their race, but because 
of their unique status as the indigenous peoples of a once sovereign 
nation as to whom the United States has established a trust 
relationship.'' 114 Stat. 2968 (2000). Thus, ``the political status of 
Native Hawaiians is comparable to that of American Indians and Alaska 
Natives.'' 20 U.S.C. 7512(12)(B), (D); see Rice, 528 U.S. at 518-19. 
Congress's treatment of Native Hawaiians flows from that status of the 
Native Hawaiian community.
    Although Congress repeatedly acknowledged its special political and 
trust relationship with the Native Hawaiian community since the 
overthrow of the Kingdom of Hawaii more than a century ago, the Federal 
Government does not maintain a formal government-to-government 
relationship with the Native Hawaiian community as

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an organized, sovereign entity. Reestablishing a formal government-to-
government relationship with a reorganized Native Hawaiian sovereign 
government would facilitate Federal agencies' ability to implement the 
established relationship between the United States and the Native 
Hawaiian community through interaction with a single, representative 
governing entity. Doing so would strengthen the self-determination of 
Hawaii's indigenous people and facilitate the preservation of their 
language, customs, heritage, health, and welfare. This interaction is 
consistent with the United States government's broader policy of 
advancing Native communities and enhancing the implementation of 
Federal programs by implementing those programs in the context of a 
government-to-government relationship.
    Consistent with the HHCA, which is the first Congressional 
enactment clearly recognizing the Native Hawaiian community's special 
political and trust relationship with the United States, Congress 
requires Federal agencies to consult with Native Hawaiians under 
several Federal statutes. See, e.g., the National Historic Preservation 
Act of 1966, 54 U.S.C. 302706; the Native American Graves Protection 
and Repatriation Act, 25 U.S.C. 3002(c)(2), 3004(b)(1)(B). And in 2011, 
the Department of Defense established a consultation process with 
Native Hawaiian organizations when proposing actions that may affect 
property or places of traditional religious and cultural importance or 
subsistence practices. See U.S. Department of Defense Instruction 
Number 4710.03: Consultation Policy with Native Hawaiian Organizations 
(2011). Other statutes specifically related to management of the Native 
Hawaiian community's special political and trust relationship with the 
United States affirmed the continuing Federal role in Native Hawaiian 
affairs, namely, the Hawaiian Home Lands Recovery Act (HHLRA), 109 
Stat. 357, 360 (1995). The HHLRA also authorized a position within the 
Department to discharge the Secretary's responsibilities for matters 
related to the Native Hawaiian community. And in 2004, Congress 
provided for the Department's Office of Native Hawaiian Relations to 
effectuate and implement the special legal relationship between the 
Native Hawaiian people and the United States; to continue the 
reconciliation process set out in 2000; and to assure meaningful 
consultation before Federal actions that could significantly affect 
Native Hawaiian resources, rights, or lands are taken. See 118 Stat. 
445-46 (2004).

C. Actions by the Continuing Native Hawaiian Political Community

    Native Hawaiians maintained a distinct political community through 
the twentieth century to the present day. Through a diverse group of 
organizations that includes, for example, the Hawaiian Civic Clubs and 
the various Hawaiian Homestead Associations, Native Hawaiians 
deliberate and express their views on issues of importance to their 
community, some of which are discussed above. See generally Moolelo Ea 
O Na Hawaii, 434-551; see id. at 496-516 & appendix 4 (listing 
organizations, their histories, and their accomplishments). A key 
example of the Native Hawaiian community taking organized action to 
advance Native Hawaiian self-determination is a political movement, in 
conjunction with other voters in Hawaii, which led to a set of 
amendments to the State Constitution in 1978 to provide additional 
protection and recognition of Native Hawaiian interests. Those 
amendments established the Office of Hawaiian Affairs, which 
administers trust monies to benefit the Native Hawaiian community, 
Hawaii Const. art. XII, sections 5-6, and provided for recognition of 
certain traditional and customary legal rights of Native Hawaiians, id. 
art. XII, section 7. The amendments reflected input from broad segments 
of the Native Hawaiian community, as well as others, who participated 
in statewide discussions of proposed options. See Noelani Goodyear-
Kaopua, Ikaika Hussey & Erin Kahunawaikaala Wright, A Nation Rising: 
Hawaiian Movements for Life, Land, and Sovereignty (2014).
    There are numerous additional examples of the community's active 
engagement on issues of self-determination and preservation of Native 
Hawaiian culture and traditions. For example, Ka Lahui Hawaii, a Native 
Hawaiian self-governance initiative, which organized a constitutional 
convention resulting in a governing structure with elected officials 
and governing documents; the Hui Naauao Sovereignty and Self-
Determination Community Education Project, a coalition of over 40 
Native Hawaiian organizations that worked together to educate Native 
Hawaiians and the public about Native Hawaiian history and self-
governance; the 1988 Native Hawaiian Sovereignty Conference, where a 
resolution on self-governance was adopted; the Hawaiian Sovereignty 
Elections Council, a State-funded entity, and its successor, Ha Hawaii, 
a non-profit organization, which helped hold an election and convene 
Aha Oiwi Hawaii, a convention of Native Hawaiian delegates to develop a 
constitution and create a government model for Native Hawaiian self-
determination; and efforts resulting in the creation and future 
transfer of the Kahoolawe Island reserve to the ``sovereign native 
Hawaiian entity,'' see Haw. Rev. Stat. 6K-9. Moreover, the community's 
continuing efforts to integrate and develop traditional Native Hawaiian 
law, which Hawaii state courts recognize and apply in various family 
law and property law disputes, see Cohen's Handbook of Federal Indian 
Law sec. 4.07[4][e], at 375-77 (2012 ed.); see generally Native 
Hawaiian Law: A Treatise (Melody Kapilialoha MacKenzie ed., 2015), 
encouraged development of traditional justice programs, including a 
method of alternative dispute resolution, ``hooponopono,'' that is 
endorsed by the Native Hawaiian Bar Association. See Andrew J. 
Hosmanek, Cutting the Cord: Hooponopono and Hawaiian Restorative 
Justice in the Criminal Law Context, 5 Pepp. Disp. Resol. L.J. 359 
(2005); see also Hawaii Const. art. XII, Sec.  7 (protecting the 
traditional and customary rights of certain Native Hawaiian tenants).
    Against this backdrop of activity, Native Hawaiians and Native 
Hawaiian organizations asserted self-determination principles in court. 
Notably, in 2001, they brought suit challenging Native Hawaiians' 
exclusion from the Department's acknowledgment regulations (25 CFR part 
83), which establish a uniform process for Federal acknowledgment of 
Indian tribes in the continental United States. The United States Court 
of Appeals for the Ninth Circuit upheld the geographic limitation in 
the Part 83 regulations, concluding that there was a rational basis for 
the Department to distinguish between Native Hawaiians and tribes in 
the continental United States, given the history of separate 
Congressional enactments regarding the two groups and the unique 
history of Hawaii. See Kahawaiolaa v. Norton, 386 F.3d 1271, 1283 (9th 
Cir. 2004). The Ninth Circuit also noted the question whether Native 
Hawaiians ``constitute one large tribe . . . or whether there are, in 
fact, several different tribal groups.'' Id. The court expressed a 
preference for the Department to apply its expertise to ``determine 
whether native Hawaiians, or some native Hawaiian groups, could

[[Page 59118]]

be acknowledged on a government-to-government basis.'' \1\ Id.
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    \1\ The Department has carefully reviewed the Kahawaiolaa 
briefs. To the extent that positions taken in this proposed 
rulemaking may be seen as inconsistent with positions of the United 
States in the Kahawaiolaa litigation, the views in this rulemaking 
reflect the Department's current view.
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    And in recent years, Congress considered legislation to reorganize 
a single Native Hawaiian governing entity and reestablish a formal 
government-to-government relationship between it and the United States. 
In 2010, during the Second Session of the 111th Congress, nearly 
identical Native Hawaiian government reorganization bills were passed 
by the House of Representatives (H.R. 2314), reported out favorably by 
the Senate Committee on Indian Affairs (S. 1011), and strongly 
supported by the Executive Branch (S. 3945). In a letter to the Senate 
concerning S. 3945, the Secretary and the Attorney General stated: ``Of 
the Nation's three major indigenous groups, Native Hawaiians--unlike 
American Indians and Alaska Natives--are the only one that currently 
lacks a government-to-government relationship with the United States. 
This bill provides Native Hawaiians a means by which to exercise the 
inherent rights to local self-government, self-determination, and 
economic self-sufficiency that other Native Americans enjoy.'' 156 
Cong. Rec. S10990, S10992 (Dec. 22, 2010).
    The 2010 House and Senate bills provided that the Native Hawaiian 
government would have ``the inherent powers and privileges of self-
government of a native government under existing law,'' including the 
inherent powers ``to determine its own membership criteria [and] its 
own membership'' and to negotiate and implement agreements with the 
United States or with the State of Hawaii. The bills required 
protection of the civil rights and liberties of Natives and non-Natives 
alike, as guaranteed in the Indian Civil Rights Act of 1968, 25 U.S.C. 
1301 et seq., and provided that the Native Hawaiian government and its 
members would not be eligible for Federal Indian programs and services 
unless Congress expressly declared them eligible. And S. 3945 expressly 
left untouched the privileges, immunities, powers, authorities, and 
jurisdiction of federally recognized tribes in the continental United 
States.
    The bills further acknowledged the existing special political and 
trust relationship between Native Hawaiians and the United States, and 
established a process for reorganizing a Native Hawaiian governing 
entity. Some in Congress, however, expressed a preference not for 
recognizing a reorganized Native Hawaiian government by legislation, 
but rather for allowing the Native Hawaiian community to apply for 
recognition through the Department's Federal acknowledgment process. 
See, e.g., S. Rep. No. 112-251, at 45 (2012); S. Rep. No. 111-162, at 
41 (2010).
    The State of Hawaii, in Act 195, Session Laws of Hawaii 2011, 
expressed its support for reorganizing a Native Hawaiian government 
that could then be federally recognized, while also providing for State 
recognition of the Native Hawaiian people as ``the only indigenous, 
aboriginal, maoli people of Hawaii.'' Haw. Rev. Stat. 10H-1 (2015); see 
Act 195, sec. 1, Sess. L. Haw. 2011. In particular, Act 195 established 
a process for compiling a roll of qualified Native Hawaiians, to 
facilitate the Native Hawaiian community's development of a reorganized 
Native Hawaiian governing entity. See Haw. Rev. Stat. 10H-3-4 (2015); 
id. 10H-5 (``The publication of the roll of qualified Native Hawaiians 
. . . is intended to facilitate the process under which qualified 
Native Hawaiians may independently commence the organization of a 
convention of qualified Native Hawaiians, established for the purpose 
of organizing themselves.''); Act 195, secs. 3-5, Sess. L. Haw. 2011. 
Act 195 created a five-member Native Hawaiian Roll Commission to 
oversee this process.

II. Responses to Comments on the June 20, 2014 Advance Notice of 
Proposed Rulemaking and Tribal Summary Impact Statement

    In June 2014, the Department issued an Advance Notice of Proposed 
Rulemaking (ANPRM) titled ``Procedures for Reestablishing a Government-
to-Government Relationship with the Native Hawaiian Community.'' 79 FR 
35,296-303 (June 20, 2014). The ANPRM sought input from leaders and 
members of the Native Hawaiian community and federally recognized 
tribes in the continental United States about whether and, if so, how 
the Department should facilitate the reestablishment of a formal 
government-to-government relationship with the Native Hawaiian 
community. The ANPRM asked five threshold questions: (1) Should the 
Secretary propose an administrative rule that would facilitate the 
reestablishment of a government-to-government relationship with the 
Native Hawaiian community? (2) Should the Secretary assist the Native 
Hawaiian community in reorganizing its government, with which the 
United States could reestablish a government-to-government 
relationship? (3) If so, what process should be established for 
drafting and ratifying a reorganized government's constitution or other 
governing document? (4) Should the Secretary instead 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? (5) If so, what conditions should the Secretary establish 
as prerequisites to Federal acknowledgment of a government-to-
government relationship with the reorganized Native Hawaiian 
government? The Department posed 19 additional, specific questions 
concerning the reorganization of a Native Hawaiian government and a 
Federal process for reestablishing a formal government-to-government 
relationship. The ANPRM marked the beginning of ongoing discussions 
with the Native Hawaiian community, consultations with federally 
recognized tribes in the continental United States, and input from the 
public at large.
    The Department received over 5,100 written comments by the August 
19, 2014 deadline, more than half of which were identical postcards 
submitted in support of reestablishing a government-to-government 
relationship through Federal rulemaking. In addition, the Department 
received general comments, both supporting and opposing the ANPRM, from 
individual members of the public, Members of Congress, State 
legislators, and community leaders. All comments received on the ANPRM 
are available in the ANPRM docket at https://www.regulations.gov/#!docketDetail;D=DOI-2014-0002-0005. Most of the comments revolved 
around a limited number of issues. The Department believes that the 
issues discussed below encompass the range of substantive issues 
presented in comments on the ANPRM. To the extent that any persons who 
submitted comments on the ANPRM believe that they presented additional 
issues that are not adequately addressed here, and that remain 
pertinent to the proposed rule, the Department invites further comments 
highlighting those issues.
    After careful review and analysis of the comments on the ANPRM, the 
Department concludes that it is appropriate to propose a Federal rule 
that would set forth an administrative procedure and criteria by which 
the Secretary could reestablish a formal government-to-government 
relationship between the United States and the Native Hawaiian 
community.

[[Page 59119]]

Overview of Comments

    A total of 5,164 written comments were submitted for the record. 
Comments came from Native Hawaiian organizations, national 
organizations, Native Hawaiian and non-Native-Hawaiian individuals, 
academics, student organizations, nongovernmental organizations, the 
Hawaiian Affairs Caucus of the Hawaii State Legislature, State 
legislators, Hawaiian Civic Clubs and their members, Alii Trusts, Royal 
Orders, religious orders, a federally recognized Indian tribe, 
intertribal organizations, an Alaska Native Corporation, and Members of 
the United States Congress, including the Hawaii delegation to the 
113th Congress, as well as former U.S. Senator Akaka. The Department 
appreciates the interest and insight reflected in all the submissions 
and has considered them carefully.
    A large majority of commenters supported a Federal rulemaking to 
facilitate reestablishment of a formal government-to-government 
relationship. At the same time, commenters also expressed strong 
support for reorganizing a Native Hawaiian government without 
assistance from the United States and urged the Federal Government to 
instead promulgate a rule tailored to a government reorganized by the 
Native Hawaiian community. The Department agrees: The process of 
drafting a constitution or other governing document and reorganizing a 
government should be driven by the Native Hawaiian community, not by 
the United States. The process should be fair and inclusive and reflect 
the will of the Native Hawaiian community.

A. Responses to Specific Issues Raised in ANPRM Comments

1. Should the United States be involved in the Native Hawaiian nation-
building process?
    Issue: The Department received comments from the Association of 
Hawaiian Civic Clubs, the Sovereign Councils of the Hawaiian Homelands 
Assembly, the Native Hawaiian Chamber of Commerce, the Native Hawaiian 
Bar Association, the Native Hawaiian Legal Corporation, the Association 
of Hawaiians for Homestead Lands, the Native Hawaiian Chamber of 
Commerce, Alu Like, the Native Hawaiian Education Association, Hawaiian 
Community Assets, Papa Ola Lokahi, Koolau Foundation, Protect Kahoolawe 
Ohana, Kalaeloa Heritage and Legacy Foundation, the Waimanalo Hawaiian 
Homes Association, the Council for Native Hawaiian Advancement, the 
Kapolei Community Development Corporation, two Alii Trusts, and eight 
Hawaiian Civic Clubs, among others, that expressed support for a 
Federal rule enabling a reorganized Native Hawaiian government to seek 
reestablishment of a formal government-to-government relationship with 
the United States. Some of these commenters, and many others, also 
urged the Department to refrain from engaging in or becoming directly 
involved with the nation-building that is currently underway in Hawaii.
    Response: Consistent with these comments, the Department is 
proposing only to create a procedure and criteria that would facilitate 
the reestablishment of a formal government-to-government relationship 
with a reorganized Native Hawaiian government without involving the 
Federal Government in the Native Hawaiian community's nation-building 
process.
2. Does Hawaii's multicultural history preclude the possibility that a 
reorganized Native Hawaiian government could reestablish a formal 
government-to-government relationship with the United States?
    Issue: Some commenters opposed Federal rulemaking on the basis that 
the Kingdom of Hawaii had evolved into a multicultural society by the 
time it was overthrown, and that any attempt to reorganize or 
reestablish a ``native'' (indigenous) Hawaiian government would 
consequently be race-based and unlawful.
    Response: The fact that individuals originating from other 
countries lived in and were subject to the rule of the Kingdom of 
Hawaii does not establish that the Native Hawaiian community ceased to 
exist as a native community exercising political authority. Indeed, as 
discussed above, key elements demonstrating the existence of that 
community, such as intermarriage and sustained cultural identity, 
persisted at that time and continue to flourish today.
    To the extent that these comments suggest that the Department must 
reestablish a government-to-government relationship with a government 
that includes non-Native Hawaiians as members, that result is precluded 
by longstanding Congressional definitions of Native Hawaiians, which 
require a demonstration of descent from the population of Hawaii as it 
existed before Western contact. That requirement is consistent with 
Federal law that generally requires members of a native group or tribe 
to show an ancestral connection to the indigenous group in question. 
See generally United States v. Sandoval, 231 U.S. 28, 46 (1913). 
Moreover, the Department must defer to Congress's definition of the 
nature and scope of the Native Hawaiian community.
3. Would reestablishment of a formal government-to-government 
relationship with the Native Hawaiian community create a political 
divide in Hawaii?
    Issue: Some commenters stated that Hawaii is a multicultural 
society that would be divided if the United States reestablished a 
formal government-to-government relationship with the Native Hawaiian 
community, creating disharmony in the State by permitting race-based 
discrimination.
    Response: The U.S. Constitution provides the Federal Government 
with authority to enter into government-to-government relationships 
with Native communities. See U.S. Const. art. I, sec. 8, cl. 3 
(Commerce Clause); U.S. Const. art. II, sec. 2, cl. 2 (Treaty Clause). 
These constitutional provisions recognize and provide the foundation 
for longstanding special relationships between native peoples and the 
Federal Government, relationships that date to the earliest period of 
our Nation's history. Consistent with the Supreme Court's holding in 
Morton v. Mancari, 417 U.S. 535 (1974), and other cases, the Department 
believes that the United States' government-to-government relationships 
with native peoples do not constitute ``race-based'' discrimination but 
are political classifications. The Department believes that these 
relationships are generally beneficial, and the Department is aware of 
no reason to treat the Native Hawaiian community differently in this 
respect.
4. How do claims concerning occupation of the Hawaiian Islands impact 
the proposed rule?
    Issue: Commenters who objected to Federal rulemaking most commonly 
based their objections on the assertion that the United States does not 
have jurisdiction over the Hawaiian Islands. Most of these objections 
were associated with claims that the United States violated and 
continues to violate international law by illegally occupying the 
Hawaiian Islands.
    Response: As expressly stated in the ANPRM, comments about altering 
the fundamental nature of the political and trust relationship that 
Congress has established between the United States and the Native 
Hawaiian community were outside the ANPRM's scope and therefore did not 
inform development of the proposed rule. Though comments on these 
issues were not solicited, some response here may be helpful to 
understand the Department's role in this rulemaking.

[[Page 59120]]

    The Department is an agency of the United States Government. The 
Department's authority to issue this proposed rule and any final rule 
derives from the United States Constitution and from Acts of Congress, 
and the Department has no authority outside that structure. The 
Department is bound by Congressional enactments concerning the status 
of Hawaii. Under those enactments and under the United States 
Constitution, Hawaii is a State of the United States of America.
    In the years following the 1893 overthrow of the Hawaiian monarchy, 
Congress annexed Hawaii and established a government for the Territory 
of Hawaii. See Joint Resolution to Provide for Annexing the Hawaiian 
Islands to the United States, 30 Stat. 750 (1898); Act of Apr. 30, 
1900, 31 Stat. 141. In 1959, Congress admitted Hawaii to the Union as 
the 50th State. See Act of March 19, 1959, 73 Stat. 4. Agents of the 
United States were involved in the overthrow of the Kingdom of Hawaii 
in 1893; and Congress, through a joint resolution, has both 
acknowledged that the overthrow of Hawaii was ``illegal'' and expressed 
``its deep regret to the Native Hawaiian people'' and its support for 
reconciliation efforts with Native Hawaiians. Joint Resolution of 
November 23, 1993, 107 Stat. 1510, 1513.
    The Apology Resolution, however, did not effectuate any changes to 
existing law. See Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163, 
175 (2009). Thus, the Admission Act established the current status of 
the State of Hawaii. The Admission Act proclaimed that ``the State of 
Hawaii is hereby declared to be a State of the United States of 
America, [and] is declared admitted into the Union on an equal footing 
with the other States in all respects whatever.'' Act of March 19, 
1959, sec. 1, 73 Stat. 4. All provisions of the Admission Act were 
consented to by the State of Hawaii and its people through an election 
held on June 27, 1959. The comments in response to the ANPRM that call 
into question the State of Hawaii's legitimacy, and its status as one 
of the United States under the Constitution, therefore are inconsistent 
with the express determination of Congress, which is binding on the 
Department.
5. What would be the proposed role of HHCA beneficiaries in a Native 
Hawaiian government that relates to the United States on a formal 
government-to-government basis?
    Issue: Some commenters sought reassurance that the proposed rule 
would not exclude HHCA beneficiaries and their successors from a role 
in the Native Hawaiian government. The Department received comments on 
this issue from the Office of Hawaiian Affairs (OHA) as well as others. 
The Hawaiian Homes Commission specifically noted the unique 
relationship recognized under the HHCA between the Federal Government 
and beneficiaries of that Federal law, urging that any rule should 
protect this group's existing benefits and take into account their 
special circumstances.
    Response: The proposed rule recognizes HHCA beneficiaries' unique 
status under Federal law and protects that status in a number of ways:
    a. The proposed rule defines the term ``HHCA-eligible Native 
Hawaiians'' to include any Native Hawaiian individual who meets the 
definition of ``native Hawaiian'' in the HHCA, regardless of whether 
the individual resides on Hawaiian home lands, is an HHCA lessee, is on 
a wait list for an HHCA lease, or receives any benefits under the HHCA.
    b. The proposed rule requires that the Native Hawaiian constitution 
or other governing document be approved in a ratification referendum 
not only by a majority of Native Hawaiians who vote, but also by a 
majority of HHCA-eligible Native Hawaiians who vote; and both 
majorities must include enough voters to demonstrate broad-based 
community support. This ratification process effectively eliminates any 
risk that the United States would reestablish a formal relationship 
with a Native Hawaiian government whose form is objectionable to HHCA-
eligible Native Hawaiians. The Department expects that the 
participation of HHCA-eligible Native Hawaiians in the referendum 
process will ensure that the structure of any ratified Native Hawaiian 
government will include long-term protections for HHCA-eligible Native 
Hawaiians.
    c. The proposed rule prohibits the Native Hawaiian government's 
membership criteria from excluding any HHCA-eligible Native Hawaiian 
citizen who wishes to be a member.
    d. The proposed rule requires that the governing document protect 
and preserve rights, protections, and benefits under the HHCA.
    e. The proposed rule leaves intact rights, protections, and 
benefits under the HHCA.
    f. The proposed rule does not authorize the Native Hawaiian 
government to sell, dispose of, lease, or encumber Hawaiian home lands 
or interests in those lands.
    g. The proposed rule does not diminish any Native Hawaiian's rights 
or immunities, including any immunity from State or local taxation, 
under the HHCA.
6. Would Hawaiian home lands, including those subject to lease, be 
``subsumed'' by a Native Hawaiian government?
    Issue: The Hawaiian Homes Commission noted that several Native 
Hawaiian beneficiaries were concerned that Hawaiian home lands, 
including those subject to lease, would be ``subsumed'' by a Native 
Hawaiian government ``with little input or control exercised over this 
decision by Hawaiian home lands beneficiaries.'' An individual 
homesteader, born and raised in the Papakolea Homestead community, also 
expressed support for a rule but raised concerns that the HHCA would be 
subject to negotiation between the United States and the newly 
reorganized Native Hawaiian government, and sought reassurance that the 
HHCA would be safeguarded. The Kapolei Community Development 
Corporation's Board of Directors raised similar concerns, particularly 
with respect to the potential transfer of Hawaiian home lands currently 
administered by the State of Hawaii under the HHCA to the newly formed 
Native Hawaiian government, cautioning that such transfer could 
``threaten the specific purpose of those lands, and be used for non-
homesteading uses.''
    Response: Although the proposed rule would not have a direct impact 
on the status of Hawaiian home lands, the Department takes the 
beneficiaries' comments expressing concern over their rights and the 
future of the HHCA land base very seriously. In response to this 
concern, the proposed rule includes a provision that makes clear that 
the promulgation of this rule would not diminish any right, protection, 
or benefit granted to Native Hawaiians by the HHCA. The HHCA would be 
preserved regardless of whether a Native Hawaiian government is 
reorganized, regardless of whether it submits a request to the 
Secretary, and regardless of whether any such request is granted. In 
addition, for the reorganized Native Hawaiian government to reestablish 
a formal government-to-government relationship with the United States, 
its governing document must protect and preserve Native Hawaiians' 
rights, protections, and benefits under the HHCA and the HHLRA.

[[Page 59121]]

7. Would reestablishment of the formal government-to-government 
relationship be consistent with existing requirements of Federal law?
    Issue: Four U.S. Senators submitted comments generally opposing the 
rulemaking on constitutional grounds and asserting that the executive 
authority used to federally acknowledge tribes in the continental 
United States does not extend to Native Hawaiians. Another Senator 
submitted similar comments, primarily questioning the Secretary's 
constitutional authority to promulgate rules and arguing that 
administrative action would be race-based and thus violate the 
Constitution's guarantee of equal protection. The Department also 
received comments from the Heritage Foundation and the Center for Equal 
Opportunity urging the Secretary to forgo Federal rulemaking on similar 
bases.
    Response: The Federal Government has broad authority with respect 
to Native American communities. See U.S. Const. art. I, sec. 8, cl. 3 
(Commerce Clause); U.S. Const. art. II, sec. 2, cl. 2 (Treaty Clause); 
Morton v. Mancari, 417 U.S. at 551-52 (``The plenary power of Congress 
to deal with the special problems of Indians is drawn both explicitly 
and implicitly from the Constitution itself.''). Congress has already 
exercised that plenary power to recognize Native Hawaiians through 
statutes enacted for their benefit and charged the Secretary and others 
with responsibility for administering the benefits provided by the more 
than 150 statutes establishing a special political and trust 
relationship with the Native Hawaiian community. The Department 
proposes to better implement that relationship by establishing the 
administrative procedure and criteria for reestablishing a formal 
government-to-government relationship with a native community that has 
already been recognized by Congress. As explained above, moreover, the 
Supreme Court made clear that legislation affecting Native American 
communities does not generally constitute race-based discrimination. 
See Morton v. Mancari, 417 U.S. at 551-55; id. at 553 n.24 (explaining 
that the challenged provision was ``political rather than racial in 
nature''). The Department's statutory authority to promulgate the 
proposed rule is discussed below. See infra Section III.
8. Would reestablishment of a government-to-government relationship 
entitle the Native Hawaiian government to conduct gaming under the 
Indian Gaming Regulatory Act?
    Issue: Several commenters stated that Federal rulemaking would make 
the Native Hawaiian government eligible to conduct gaming activities 
under the Indian Gaming Regulatory Act (IGRA), a Federal statute that 
regulates certain types of gaming activities by federally recognized 
tribes on Indian lands as defined in IGRA.
    Response: The Department anticipates that the Native Hawaiian 
Governing Entity would not fall within the definition of ``Indian 
tribe'' in IGRA, 25 U.S.C. 2703(5). Therefore, IGRA would not apply. 
Moreover, because the State of Hawaii prohibits gambling, the Native 
Hawaiian Governing Entity would not be permitted to conduct gaming in 
Hawaii. The Department welcomes comments on this issue.
9. Under this proposed rule could the United States reestablish formal 
government-to-government relationships with multiple Native Hawaiian 
governments?
    Issue: Many commenters who support a Federal rule urged the 
Department to promulgate a rule that authorizes the reestablishment of 
a formal government-to-government relationship with a single official 
Native Hawaiian government, consistent with the nineteenth-century 
history of Hawaii's self-governance as a single unified entity.
    Response: Congress consistently treated the Native Hawaiian 
community as a single entity through more than 150 Federal laws that 
establish programs and services for the community's benefit. Congress's 
recognition of a single Native Hawaiian community reflects the fact 
that a single centralized, organized Native Hawaiian government was in 
place prior to the overthrow of the Hawaiian Kingdom.
    This approach also had significant support among commenters. The 
proposed rule therefore would authorize reestablishing a formal 
government-to-government relationship with a single representative 
sovereign Native Hawaiian government. That Native Hawaiian government, 
however, may adopt either a centralized structure or a decentralized 
structure with political subdivisions defined by island, by geographic 
districts, historic circumstances, or otherwise in a fair and 
reasonable manner.
10. Would the proposed rule require use of the roll certified by the 
Native Hawaiian Roll Commission to determine eligibility to vote in any 
referendum to ratify the Native Hawaiian government's constitution or 
other governing document?
    Issue: Several commenters made statements regarding the potential 
role that the roll certified by the Native Hawaiian Roll Commission 
might play in reestablishing the formal government-to-government 
relationship between the United States and the Native Hawaiian 
community.
    Response: Under the proposed rule, the Department permits use of 
the roll certified by the Native Hawaiian Roll Commission, and such an 
approach may facilitate the reestablishment of a formal government-to-
government relationship. The Department, however, does not require use 
of the roll. Section 50.12(a)(1)(B) of the proposed rule provides that 
a roll of Native Hawaiians certified by a State commission or agency 
under State law may be one of several sources that could provide 
sufficient evidence that an individual descends from Hawaii's 
aboriginal people. Section 50.12(b) of the proposed rule provides that 
the certified roll could serve as an accurate and complete list of 
Native Hawaiians eligible to vote in a ratification referendum if 
certain conditions are met. For instance, the roll would need to, among 
other things, exclude all persons who are not U.S. citizens, exclude 
all persons who are less than 18 years of age, and include all adult 
U.S. citizens who demonstrated HHCA eligibility according to official 
records of Hawaii's Department of Hawaiian Home Lands. (See also the 
response to question 13 below, which discusses requirements for 
participation in the ratification referendum under Sec.  50.14.)
11. Would the proposed rule limit the inherent sovereign powers of a 
reorganized Native Hawaiian government?
    Issue: OHA and numerous other commenters expressed a strong 
interest in ensuring that the proposed rule would not limit any 
inherent sovereign powers of a reorganized Native Hawaiian government.
    Response: The proposed rule would not dictate the inherent 
sovereign powers a reorganized Native Hawaiian government could 
exercise. The proposed rule does establish certain elements that must 
be contained in a request to reestablish a government-to-government 
relationship with the United States and establishes criteria by

[[Page 59122]]

which the Secretary will review a request. See 50.10-50.15 (setting out 
essential elements for a request); id. 50.16 (setting out criteria). 
These provisions include guaranteeing the liberties, rights, and 
privileges of all persons affected by the Native Hawaiian government's 
exercise of governmental powers. Although those elements and criteria 
will inform and influence the process for reestablishing a formal 
government-to-government relationship, they would not undermine the 
fundamental, retained inherent sovereign powers of a reorganized Native 
Hawaiian government.
12. What role will Native Hawaiians play in approving the constitution 
or other governing document of a Native Hawaiian government?
    Issue: Numerous commenters discussed the role of Native Hawaiians 
in ratifying the constitution or other governing document that 
establishes the form and functions of a Native Hawaiian government. One 
commenter, in particular, stated that the Secretary should not require 
that the governing document be approved by a majority of all Native 
Hawaiians, regardless of whether they participate in the ratification 
referendum, because such a requirement would be unrealistic and 
unachievable.
    Response: Section 50.16(g) and (h) of the proposed rule would 
require a requester to demonstrate broad-based community support among 
Native Hawaiians. The proposed rule requires a majority only of those 
voters who actually cast a ballot; the number of eligible voters who 
opt not to participate in the ratification referendum would not be 
relevant when calculating whether the affirmative votes were or were 
not in the majority. The proposed rule, however, requires broad-based 
community support in favor of the requester's constitution or other 
governing document, thus also safeguarding against a low turnout. The 
Department solicits comments on this approach and requests that if such 
comments provide an alternate approach that the commenters explain the 
reasoning behind any proposed method to establish that broad-based 
community support has been demonstrated in the ratification process.
13. Who would be eligible to participate in the proposed process for 
reestablishing a government-to-government relationship?
    Issue: Several commenters expressed concern about who would be 
eligible to participate in the process for reestablishing a government-
to-government relationship. Some commenters expressed the belief that 
participation should be open to persons who have no Native Hawaiian 
ancestry. Other commenters expressed opposition to the reorganization 
of a Native Hawaiian government, or to the reestablishment of a 
government-to-government relationship between such a community and the 
United States.
    Response: Under the proposed rule, to retain the option of 
eventually reestablishing a formal government-to-government 
relationship with the United States, the Native Hawaiian community 
would be required to permit any adult person who is a U.S. citizen and 
can document Native Hawaiian descent to participate in the referendum 
to ratify its governing documents. See 50.14(b)(5)(C). As discussed in 
question 2 above, existing Congressional definitions of the Native 
Hawaiian community and principles of Federal law limit participation to 
those who can document Native Hawaiian descent and are U.S. citizens. 
Native Hawaiian adult citizens who do not wish to affirm the inherent 
sovereignty of the Native Hawaiian people, or who doubt that they and 
other Native Hawaiians have sufficient connections or ties to 
constitute a community, or who oppose the process of Native Hawaiian 
self-government or the reestablishment of a formal government-to-
government relationship with the United States, would be free to 
participate in the ratification referendum and, if they wish, vote 
against ratifying the community's proposed governing document. And 
because membership in the Native Hawaiian Governing Entity would be 
voluntary, they also would be free to choose not to become members of 
any government that may be reorganized. The Department seeks public 
comment on these aspects of the proposed rule.
14. Shouldn't the Department require a Native Hawaiian government to go 
through the existing administrative tribal acknowledgment process?
    Issue: The Department promulgated regulations for Federal 
acknowledgment of tribes in the continental United States in 25 CFR 
part 83. These regulations, commonly referred to as ``Part 83,'' create 
a pathway for Federal acknowledgment of petitioners in the continental 
United States to establish a government-to-government relationship and 
to become eligible for Federal programs and benefits. Several 
commenters submitted statements regarding the role of the Department's 
existing regulations on Federal acknowledgment of tribes with respect 
to Native Hawaiians, and have articulated arguments about whether the 
Part 83 regulations should or should not be applied to Native 
Hawaiians.
    Response: Part 83 is inapplicable to Native Hawaiians on its face. 
The Ninth Circuit has upheld Part 83's express geographic limitation, 
concluding that there was a rational basis for the Department to 
distinguish between Native Hawaiians and tribes in the continental 
United States, given the history of separate Congressional enactments 
regarding the two groups and the unique history of Hawaii. Kahawaiolaa 
v. Norton, 386 F.3d at 1283. The court expressed a preference for the 
Department to apply its expertise to determine whether the United 
States should relate to the Native Hawaiian community ``on a 
government-to-government basis.'' Id. The Department, through this 
proposed rule, seeks to establish a process for determining how a 
formal Native Hawaiian government can relate to the United States on a 
formal government-to-government basis, as the Ninth Circuit suggested.
    Moreover, Congress's 150-plus enactments, including those in recent 
decades, for the benefit of the Native Hawaiian community establish 
that the community is federally ``acknowledged'' or ``recognized'' by 
Congress. Thus, unlike Part 83 petitioners, the Native Hawaiian 
community already has a special political and trust relationship with 
the United States. What remains in question is how the Department could 
determine whether a Native Hawaiian government that comes forward 
legitimately represents that community and therefore is entitled to 
conduct relations with the United States on a formal government-to-
government basis. This question is complex, and the Department welcomes 
public comment as to whether any additional elements should be included 
in the process that the Department proposes.

B. Tribal Summary Impact Statement

    Consistent with Sections 5(b)(2)(B) and 5(c)(2) of Executive Order 
13175, and because the Department consulted with tribal officials in 
the continental United States prior to publishing this proposed rule, 
the Department seeks to assist tribal officials, and the public as a 
whole, by including in this preamble the three key elements of a tribal 
summary impact statement. Specifically, the preamble to this proposed 
rule (1) describes the extent of the Department's prior consultation 
with tribal officials; (2) summarizes the nature of their concerns and 
the Department's position supporting the need to issue the proposed 
rule; and (3)

[[Page 59123]]

states the extent to which tribal officials' concerns have been met. 
The ``Public Meetings and Tribal Consultations'' section below 
describes the Department's prior consultations.
    Tribal Officials' Concerns: Officials of tribal governments in the 
continental United States and intertribal organizations strongly 
supported Federal rulemaking to help reestablish a formal government-
to-government relationship between the United States and the Native 
Hawaiian community. To the extent they raised concerns, the predominant 
one was the rule's potential impact, if any, on Federal Indian 
programs, services, and benefits--that is, federally funded or 
authorized special programs, services, and benefits provided by Federal 
agencies (such as the Bureau of Indian Affairs and the Indian Health 
Service) to Indian tribes in the continental United States or their 
members because of their Indian status. For example, comments from the 
National Congress of American Indians expressed an understanding that 
Native Hawaiians are ineligible for Federal Indian programs and 
services absent express Congressional declarations to the contrary, and 
recommended that existing and future programs and services for a 
reorganized Native Hawaiian government remain separate from programs 
and services dedicated to tribes in the continental United States.
    Response: Generally, Native Hawaiians are not eligible for Federal 
Indian programs, services, or benefits unless Congress has expressly 
and specifically declared them eligible. Consistent with that approach, 
the Department's proposed rule would not alter or affect the programs, 
services, and benefits that the United States currently provides to 
federally recognized tribes in the continental United States unless an 
Act of Congress expressly provides otherwise. Federal laws expressly 
addressing Native Hawaiians will continue to govern existing Federal 
programs, services, and benefits for Native Hawaiians and for a 
reorganized Native Hawaiian government if one reestablishes a formal 
government-to-government relationship with the United States.
    The term ``Indian'' has been used historically in reference to 
indigenous peoples throughout the United States despite their distinct 
socio-political and cultural identities. Congress, however, has 
distinguished between Indian tribes in the continental United States 
and Native Hawaiians when it has provided programs, services, and 
benefits. Congress, in the Federally Recognized Indian Tribe List Act 
of 1994, 108 Stat. 4791, defined ``Indian tribe'' broadly as an entity 
the Secretary acknowledges to exist as an Indian tribe but limited the 
list published under the List Act to those governmental entities 
entitled to programs and services because of their status as Indians. 
25 U.S.C. 479a(2), 479a-1(a). The Department seeks public comment on 
the scope and implementation of this distinction, and which references 
to ``tribes'' and ``Indians'' would encompass the Native Hawaiian 
Governing Entity and its members.
    Further, given Congress's express intention to have the 
Department's Assistant Secretary for Policy, Management and Budget 
(PMB) oversee Native Hawaiian matters, as evidenced in the HHLRA, Act 
of November 2, 1995, sec. 206, 109 Stat. 363, the Assistant Secretary--
PMB, not the Assistant Secretary--Indian Affairs, would be responsible 
for implementing this proposed rule.

III. Overview of the Proposed Rule

    The proposed rule reflects the totality of the comments urging the 
Department to promulgate a rule announcing a procedure and criteria by 
which the Secretary could reestablish a formal government-to-government 
relationship with the Native Hawaiian community. If the Department 
ultimately promulgates a final rule along the lines proposed here, the 
Department intends to rely on that rule as the sole administrative 
avenue for reestablishing a formal government-to-government 
relationship with the Native Hawaiian community.
    The authority to issue this rule is vested in the Secretary by 25 
U.S.C. 2, 9, 479a, 479a-1; Act of November 2, 1994, sec. 103, 108 Stat. 
4791; 43 U.S.C. 1457; and 5 U.S.C. 301. See also Miami Nation of 
Indians of Indiana, Inc. v. U.S. Dep't of the Interior, 255 F.3d 342, 
346 (7th Cir. 2001) (stating that recognition is an executive function 
requiring no legislative action). Through its plenary power over Native 
American affairs, Congress recognized the Native Hawaiian community by 
passing more than 150 statutes during the last century and providing 
special Federal programs and services for its benefit. The regulations 
proposed here would establish a procedure and criteria to be applied if 
that community reorganizes a unified and representative government and 
if that government then seeks a formal government-to-government 
relationship with the United States. And as noted above, Congress 
enacted scores of laws with respect to Native Hawaiians--actions that 
also support the Department's rulemaking authority here. See generally 
12 U.S.C. 1715z-13b; 20 U.S.C. 80q et seq.; 20 U.S.C. 7511 et seq.; 25 
U.S.C. 3001 et seq.; 25 U.S.C. 4221 et seq.; 42 U.S.C. 2991 et seq.; 42 
U.S.C. 3057g et seq.; 42 U.S.C. 11701 et seq.; 54 U.S.C. 302706; HHCA, 
Act of July 9, 1921, 42 Stat. 108, as amended; Act of March 19, 1959, 
73 Stat. 4; Joint Resolution of November 23, 1993, 107 Stat. 1510; 
HHLRA, 109 Stat. 357 (1995); 118 Stat. 445 (2004).
    In accordance with the wishes of the Native Hawaiian community as 
expressed in the comments on the ANPRM, the proposed rule would not 
involve the Federal Government in convening a constitutional 
convention, in drafting a constitution or other governing document for 
the Native Hawaiian government, in registering voters for purposes of 
ratifying that document or in electing officers for that government. 
Any government reorganization would instead occur through a fair and 
inclusive community-driven process. The Federal Government's only role 
is deciding whether to reestablish a formal government-to-government 
relationship with a reorganized Native Hawaiian government.
    Moreover, if a Native Hawaiian government reorganizes, it will be 
for that government to decide whether to seek to reestablish a formal 
government-to-government relationship with the United States. The 
process established by this rule would be optional, and Federal action 
would occur only upon an express formal request from the newly 
reorganized Native Hawaiian government.
    Existing Federal Legal Framework. In adopting this rulemaking, the 
Department must adhere to the legal framework that Congress already 
established, as discussed above, to govern relations with the Native 
Hawaiian community. The existing body of legislation makes plain that 
Congress determined repeatedly, over a period of almost a century, that 
the Native Hawaiian population is an existing Native community that is 
within the scope of the Federal Government's powers over Native 
American affairs and with which the United States has an ongoing 
special political and trust relationship.\2\

[[Page 59124]]

Although a trust relationship exists, today there is no single unified 
Native Hawaiian government in place, and no procedure for 
reestablishing a formal government-to-government relationship should 
such a government reorganize.
---------------------------------------------------------------------------

    \2\ Congress described this trust relationship, for example, in 
findings enacted as part of the Native Hawaiian Education Act, 20 
U.S.C. 7512 et seq., and the Native Hawaiian Health Care Improvement 
Act, 42 U.S.C. 11701 et seq. Those findings observe that ``through 
the enactment of the Hawaiian Homes Commission Act, 1920, Congress 
affirmed the special relationship between the United States and the 
Hawaiian people,'' 20 U.S.C. 7512(8); see also 42 U.S.C. 11701(13), 
(14) (also citing a 1938 statute conferring leasing and fishing 
rights on Native Hawaiians). Congress then ``reaffirmed the trust 
relationship between the United States and the Hawaiian people'' in 
the Hawaii Admission Act, 20 U.S.C. 7512(10); accord 42 U.S.C. 
11701(16). Since then, ``the political relationship between the 
United States and the Native Hawaiian people has been recognized and 
reaffirmed by the United States, as evidenced by the inclusion of 
Native Hawaiians'' in at least ten statutes directed in whole or in 
part at American Indians and other native peoples of the United 
States such as Alaska Natives. 20 U.S.C. 7512(13); see also 42 
U.S.C. 11701(19), (20), (21) (listing additional statutes).
---------------------------------------------------------------------------

    Congress has employed two definitions of ``Native Hawaiians,'' 
which the proposed rule labels as ``HHCA-eligible Native Hawaiians'' 
and ``Native Hawaiians.'' The former is a subset of the latter, so 
every HHCA-eligible Native Hawaiian is by definition a Native Hawaiian. 
But the converse is not true: Some Native Hawaiians are not HHCA-
eligible Native Hawaiians.
    Individuals falling within the definition of ``HHCA-eligible Native 
Hawaiians'' are beneficiaries or potential beneficiaries of the HHCA, 
as amended. They are eligible for a set of benefits under the HHCA and 
are, or could become, the beneficiaries of a program initially 
established by Congress in 1921 and now managed by the State of Hawaii 
(subject to certain limitations set forth in Federal law). As used in 
the proposed rule, the term ``HHCA-eligible Native Hawaiian'' means a 
Native Hawaiian individual who meets the definition of ``native 
Hawaiian'' in HHCA sec. 201(a)(7), 42 Stat. 108 (1921), and thus has at 
least 50 percent Native Hawaiian ancestry, which results from marriages 
within the community, regardless of whether the individual resides on 
Hawaiian home lands, is an HHCA lessee, is on a wait list for an HHCA 
lease, or receives any benefits under the HHCA. To satisfy this 
definition would require some sort of record or documentation 
demonstrating eligibility under HHCA sec. 201(a)(7), such as 
enumeration in official Department of Hawaiian Home Lands (DHHL) 
records demonstrating eligibility under the HHCA. Although the proposed 
rule does not approve reliance on a sworn statement signed under 
penalty of perjury, the Department would like to receive public comment 
on whether there are circumstances in which the final rule should do 
so.
    The term ``Native Hawaiian,'' as used in the proposed rule, means 
an individual who is a citizen of the United States and a descendant of 
the aboriginal people who, prior to 1778, occupied and exercised 
sovereignty in the area that now constitutes the State of Hawaii. This 
definition flows directly from multiple Acts of Congress. See, e.g., 12 
U.S.C. 1715z-13b(6); 25 U.S.C. 4221(9); 42 U.S.C. 254s(c); 42 U.S.C. 
11711(3). To satisfy this definition would require some means of 
documenting descent generation-by-generation, such as enumeration on a 
roll of Native Hawaiians certified by a State of Hawaii commission or 
agency under State law, where the enumeration was based on 
documentation that verified descent. And, of course, enumeration in 
official DHHL records demonstrating eligibility under the HHCA also 
would satisfy the definition of ``Native Hawaiian,'' as it would show 
that a person is an HHCA-eligible Native Hawaiian and by definition a 
``Native Hawaiian'' as that term is used in this proposed rule. The 
Department would like to receive public comment on whether documenting 
descent from a person enumerated on the 1890 Census by the Kingdom of 
Hawaii, the 1900 U.S. Census of the Hawaiian Islands, or the 1910 U.S. 
Census of Hawaii as ``Native'' or part ``Native'' or ``Hawaiian'' or 
part ``Hawaiian'' is reliable evidence of lineal descent from the 
aboriginal, indigenous, native people who exercised sovereignty over 
the territory that became the State of Hawaii.
    In keeping with the framework created by Congress, the rule that 
the Department proposes requires that, to reestablish a formal 
government-to-government relationship with the United States, a Native 
Hawaiian government must have a constitution or other governing 
document ratified both by a majority vote of Native Hawaiians and by a 
majority vote of those Native Hawaiians who qualify as HHCA-eligible 
Native Hawaiians. Thus, regardless of which Congressional definition is 
used, a majority of the voting members of the community with which 
Congress established a trust relationship through existing legislation 
will confirm their support for the Native Hawaiian government's 
structure and fundamental organic law.
    Ratification Process. The proposed rule sets forth certain 
requirements for the process of ratifying a constitution or other 
governing document, including requirements that the ratification 
referendum be free and fair, that there be public notice before the 
referendum occurs, and that there be a process for ensuring that all 
voters are actually eligible to vote.
    The actual form of the ratification referendum is not fixed in the 
proposed rule; the Native Hawaiian community may determine the form 
within parameters. The ratification could be an integral part of the 
process by which the Native Hawaiian community adopts its governing 
document, or the referendum could take the form of a special election 
held solely for the purpose of measuring Native Hawaiian support for a 
governing document that was adopted through other means. The 
ratification referendum must result in separate vote tallies for (a) 
HHCA-eligible Native Hawaiian voters and (b) all Native Hawaiian 
voters.
    To ensure that the ratification vote reflects the views of the 
Native Hawaiian community generally, there is a requirement that the 
turnout in the ratification referendum be sufficiently large to 
demonstrate broad-based community support. Even support from a high 
percentage of the actual voters would not be a very meaningful 
indicator of broad-based community support if the turnout was 
minuscule. The proposed rule focuses not on the number of voters who 
participate in the ratification referendum, but rather on the number 
who vote in favor of the governing document. The proposed rule creates 
a strong presumption of broad-based community support if the 
affirmative votes exceed 50,000, including affirmative votes from at 
least 15,000 HHCA-eligible Native Hawaiians.
    These numbers proposed in the regulations (50,000 and 15,000) are 
derived from existing estimates of the size of those populations, 
adjusted for typical turnout levels in elections in the State of 
Hawaii, although the ratification referendum would also be open to 
eligible Native Hawaiian citizens of the United States who reside 
outside the State and may vote by absentee or mail-in ballot. The 
following figures support the proposed rule's reference to 50,000 
affirmative votes from Native Hawaiians. According to the 2010 Federal 
decennial census, there are about 156,000 Native Hawaiians in the 
United States, including about 80,000 who reside in Hawaii, who self-
identified on their census forms as ``Native Hawaiian'' alone (i.e., 
they did not check the box for any other demographic category). The 
comparable figures for persons who self-identified either as Native 
Hawaiian alone or as Native Hawaiian in combination with another 
demographic category are about 527,000 for the entire U.S. and 290,000 
for Hawaii. According to the census, about 65 percent of these Native 
Hawaiians are of voting age (18 years of

[[Page 59125]]

age or older). Hawaii residents currently constitute roughly 80 to 85 
percent of the Native Hawaiian Roll Commission's Kanaiolowalu roll, 
which currently lists about 100,000 Native Hawaiians, from all 50 
States.
    In the 1990s, the State of Hawaii's Office of Elections tracked 
Native Hawaiian status and found that the percentage of Hawaii's 
registered voters who were Native Hawaiian was rising, from about 14.7 
percent in 1992, to 15.5 percent in 1994, to 16.0 percent in 1996, and 
16.7 percent in 1998. (This trend is generally consistent with census 
data showing growth in recent decades in the number of persons 
identifying as Native Hawaiian.) In the most recent of those elections, 
in 1998, there were just over 100,000 Native Hawaiian registered 
voters, about 65,000 of whom actually turned out and cast ballots in 
that off-year (i.e., non-presidential) Federal election. That same 
year, the total number of registered voters (Native Hawaiian and non-
Native Hawaiian) was about 601,000, of whom about 413,000 cast a 
ballot. By the 2012 general presidential election, Hawaii's total 
number of registered voters (Native Hawaiian and non-Native Hawaiian) 
increased to about 706,000, of whom about 437,000 cast a ballot. And in 
the 2014 general gubernatorial election, the equivalent figures were 
about 707,000 and about 370,000, respectively.
    Weighing these data, the Department concludes that it is reasonable 
to expect that a ratification referendum among the Native Hawaiian 
community in Hawaii would have a turnout somewhere in the range between 
60,000 and 100,000, although a figure outside that range is possible. 
But those figures do not include Native Hawaiian voters who reside 
outside the State of Hawaii, who also could participate in the 
referendum; the Department believes that the rate of participation 
among that group is sufficiently uncertain that their numbers should be 
significantly discounted when establishing turnout thresholds.
    Given these data points, if the number of votes that Native 
Hawaiians cast in favor of the requester's governing document in a 
ratification referendum was a majority of all votes cast and exceeded 
50,000, the Secretary would be well justified in finding broad-based 
community support among Native Hawaiians. And if the number of votes 
that Native Hawaiians cast in favor of the requester's governing 
document in a ratification referendum fell below 60 percent of that 
quantity--that is, less than 30,000--it would be reasonable to presume 
a lack of broad-based community support among Native Hawaiians such 
that the Secretary would decline to process the request. The 30,000-
affirmative-vote threshold represents half of the lower bound of the 
anticipated turnout of Native Hawaiians residing in the State of Hawaii 
(i.e., half of the lower end of the 60,000-to-100,000 range described 
above).
    As for the proposed rule's reference to 15,000 affirmative votes 
from HHCA-eligible Native Hawaiians, that figure is based on the data 
described above, as well as figures from DHHL and from a survey of 
Native Hawaiians. According to DHHL's comments on the ANPRM, as of 
August 2014, there were nearly 10,000 Native Hawaiian families living 
in homestead communities throughout Hawaii, and 27,000 individual 
applicants awaiting a homestead lease award. And a significant number 
of HHCA-eligible Native Hawaiians likely were neither living in 
homestead communities nor awaiting a homestead lease award. 
Furthermore, in his concurring opinion in Rice v. Cayetano, Justice 
Breyer cited the Native Hawaiian Data Book which, in turn, reported 
data indicating that about 39 percent of the Native Hawaiian population 
in Hawaii in 1984 had at least 50 percent Native Hawaiian ancestry and 
therefore would satisfy the proposed rule's definition of an HHCA-
eligible Native Hawaiian. See Rice v. Cayetano, 528 U.S. at 526 
(Breyer, J., concurring in the result) (citing Native Hawaiian Data 
Book 39 (1998) (citing Office of Hawaiian Affairs, Population Survey/
Needs Assessment: Final Report (1986) (describing a 1984 study))); see 
also Native Hawaiian Data Book (2013), available at https://www.ohadatabook.com. The 1984 data included information by age group, 
which suggested that the fraction of the Native Hawaiian population 
with at least 50 percent Native Hawaiian ancestry is likely declining 
over time. Specifically, the 1984 data showed that the fraction of 
Native Hawaiians with at least 50 percent Native Hawaiian ancestry was 
about 20.0 percent for Native Hawaiians born between 1980 and 1984, 
about 29.5 percent for those born between 1965 and 1979, about 42.4 
percent for those born between 1950 and 1964, and about 56.7 percent 
for those born between 1930 and 1949. The median voter in most U.S. 
elections today (and for the next several years) is likely to fall into 
the 1965-to-1979 cohort. Therefore, the current population of HHCA-
eligible Native Hawaiian voters is estimated to be about 30 percent as 
large as the current population of Native Hawaiian voters.
    Multiplying the 50,000-vote threshold by 30 percent results in 
15,000; it follows that, if the number of votes cast by HHCA-eligible 
Native Hawaiians in favor of the requester's governing document in a 
ratification referendum is a majority of all votes cast by such voters, 
and also exceeds 15,000, the Secretary would be well justified in 
finding broad-based community support among HHCA-eligible Native 
Hawaiians. And if the number of votes cast by HHCA-eligible Native 
Hawaiians in favor of the requester's governing document in a 
ratification referendum falls below 60 percent of that quantity--that 
is, less than 9,000--it would be reasonable to presume a lack of broad-
based community support among HHCA-eligible Native Hawaiians such that 
the Secretary would decline to process the request.
    The Department seeks public comment on whether these parameters are 
appropriate to measure broad-based support in the Native Hawaiian 
community for a Native Hawaiian government's constitution or other 
governing document, and on whether different sources of population data 
should also be considered. See response to question 13 above.
    The Native Hawaiian Government's Constitution or Governing 
Document. The form or structure of the Native Hawaiian government is 
left for the community to decide. Section 50.13 of the proposed rule 
does, however, set forth certain minimum requirements for 
reestablishing a formal government-to-government relationship with the 
United States. The constitution or other governing document of the 
Native Hawaiian government must provide for ``periodic elections for 
government offices,'' describe procedures for proposing and ratifying 
constitutional amendments, and not violate Federal law, among other 
requirements.
    The governing document must also provide for the protection and 
preservation of the rights of HHCA beneficiaries. In addition, the 
governing document must protect and preserve the liberties, rights, and 
privileges of all persons affected by the Native Hawaiian government's 
exercise of governmental powers in accordance with the Indian Civil 
Rights Act of 1968, as amended (25 U.S.C. 1301 et seq.). The Native 
Hawaiian community would make the decisions as to the institutions of 
the new government, who could decide the form of any legislative body, 
the means for ensuring independence of the judiciary, whether certain 
governmental powers would be centralized in a single body or 
decentralized to local political subdivisions, and other structural 
questions.
    As to potential concerns that a subsequent amendment to a governing

[[Page 59126]]

document could impair the safeguards of Sec.  50.13, Federal law 
provides both defined protections for HHCA beneficiaries and specific 
guarantees of individual civil rights, and such an amendment could not 
contravene applicable Federal law. The drafters of the governing 
document may also choose to include additional provisions constraining 
the amendment process; the Native Hawaiian community would decide that 
question in the process of drafting and ratifying that document.
    Membership Criteria. As the Supreme Court explained, a Native 
community's ``right to define its own membership . . . has long been 
recognized as central to its existence as an independent political 
community.'' Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 
(1978). The proposed rule therefore provides only minimal guidance 
about what the governing document must say with regard to membership 
criteria. HHCA-eligible Native Hawaiians must be included, non-Natives 
must be excluded, and membership must be voluntary and relinquishable. 
But under the proposed rule, the community itself would be free to 
decide whether to include all, some, or none of the Native Hawaiians 
who are not HHCA-eligible.
    Single Government. The rule provides for reestablishment of 
relations with only a single sovereign Native Hawaiian government. This 
limitation is consistent with Congress's enactments with respect to 
Native Hawaiians, which treat members of the Native Hawaiian community 
as a single indigenous people. It is also consistent with the wishes of 
the Native Hawaiian community as expressed in comments on the ANPRM. 
Again, the Native Hawaiian community will decide what form of 
government to adopt, and may provide for political subdivisions if they 
so choose.
    The Formal Government-to-Government Relationship. Because statutes 
such as the National Historic Preservation Act of 1966, the Native 
American Graves Protection and Repatriation Act, and the HHLRA 
established processes for interaction between the Native Hawaiian 
community and the U.S. government that in certain limited ways resemble 
a government-to-government relationship, the proposed rule refers to 
reestablishment of a ``formal'' government-to-government relationship, 
the same as the relationship with federally recognized tribes in the 
continental United States.
    Submission and Processing of the Request. In addition to 
establishing a set of criteria for the Secretary to apply in reviewing 
a request from a Native Hawaiian government, the rule sets out the 
procedure by which the Department will receive and process a request 
seeking to reestablish a formal government-to-government relationship. 
This rule includes processes for submitting a request, for public 
comment on any request received, and for issuing a final decision on 
the request.\3\ The Department will respond to significant public 
comments when it issues its final decision document. We seek comment on 
whether these proposed processes provide sufficient opportunity for 
public participation and whether any additional elements should be 
included.
---------------------------------------------------------------------------

    \3\ Because Congress has already established a relationship with 
the Native Hawaiian community, the Secretary's determination in this 
part is focused solely on the process for reestablishing a 
government-to-government relationship. As a result, the Department 
believes that additional process elements are not required.
---------------------------------------------------------------------------

    Other Provisions. The proposed rule also contains provisions 
governing technical assistance, clarifying the implementation of the 
formal government-to-government relationship, and addressing similar 
issues. The proposed rule explains that the government-to-government 
relationship with the Native Hawaiian Governing Entity is the same as 
that with federally recognized tribes in the continental United States. 
Accordingly, the government-to-government relationship with the Native 
Hawaiian Governing Entity would have very different characteristics 
from the government-to-government relationship that formerly existed 
with the Kingdom of Hawaii. The Native Hawaiian Governing Entity would 
remain subject to the same authority of Congress and the United States 
to which those tribes are subject and would remain ineligible for 
Federal Indian programs, services, and benefits (including funding from 
the Bureau of Indian Affairs and the Indian Health Service) unless 
Congress expressly declared otherwise.
    The proposed rule also clarifies that neither this rulemaking nor 
granting a request submitted under the proposed rule would affect the 
rights of HHCA beneficiaries or the status of HHCA lands. Section 
50.44(f) makes clear that reestablishment of the formal government-to-
government relationship will not affect title, jurisdiction, or status 
of Federal lands and property in Hawaii. This provision does not affect 
lands owned by the State of Hawaii or provisions of State law. See, 
e.g., Haw. Rev. Stat. 6K-9 (``[T]he resources and waters of Kahoolawe 
shall be held in trust as part of the public land trust; provided that 
the State shall transfer management and control of the island and its 
waters to the sovereign native Hawaiian entity upon its recognition by 
the United States and the State of Hawaii.''). They also explain that 
the reestablished government-to-government relationship would more 
effectively implement statutes that specifically reference Native 
Hawaiians, but would not extend the programs, services, and benefits 
available to Indian tribes in the continental United States to the 
Native Hawaiian Governing Entity or its members, unless a Federal 
statute expressly authorizes it. These provisions also state that 
immediately upon completion of the Federal administrative process, the 
United States will reestablish a formal government-to-government 
relationship with the single sovereign government of the Native 
Hawaiian community that submitted the request to reestablish that 
relationship. Individuals' eligibility for any program, service, or 
benefit under any Federal law that was in effect before the final 
rule's effective date would be unaffected. Likewise, Native Hawaiian 
rights, protections, privileges, immunities, and benefits under Article 
XII of the Constitution of the State of Hawaii would not be affected. 
And nothing in this proposed rule would alter the sovereign immunity of 
the United States or the sovereign immunity of the State of Hawaii.

IV. Public Meetings and Tribal Consultations

    An integral part of this rulemaking process is the opportunity for 
Department officials to meet with leaders and members of the Native 
Hawaiian community. Likewise, a central feature of the government-to-
government relationships between the United States and each federally 
recognized tribe in the continental United States is formal 
consultation between Federal and tribal officials. The Department 
conducts these tribal consultations in accordance with Executive Order 
13175, 65 FR 67249 (Nov. 6, 2000); the Presidential Memorandum for the 
Heads of Executive Departments and Agencies on Tribal Consultation, 74 
FR 57881 (Nov. 5, 2009); and the Department of the Interior Policy on 
Consultation with Indian Tribes. Tribal consultations are only for 
elected or duly appointed representatives of federally recognized 
tribes in the continental United States, as discussions are held on a 
government-to-government basis. These sessions may be closed to the 
public.

[[Page 59127]]

A. Past Meetings and Consultations

    Shortly after the ANPRM's June 2014 publication in the Federal 
Register, staff from the Departments of the Interior and Justice 
conducted 15 public meetings across the State of Hawaii to gather 
testimony on the ANPRM. Hundreds of stakeholders and interested parties 
attended sessions on the islands of Hawaii, Kauai, Lanai, Maui, 
Molokai, and Oahu, resulting in over 40 hours of oral testimony on the 
ANPRM. Also during that time, staff conducted extensive community 
outreach with Native Hawaiian organizations, groups, and community 
leaders. The Department also conducted five mainland regional 
consultations in Indian country that were also supplemented with 
targeted community outreach in locations with significant Native 
Hawaiian populations.

B. Future Meetings and Consultations

    To build on the extensive record gathered during the ANPRM, the 
Department will hold teleconferences to collect public comment on the 
proposed rule. The Department will also consult with Native Hawaiian 
organizations and with federally recognized tribes in the continental 
United States by teleconference. Interested individuals may also submit 
written comments on this proposed rule at any time during the comment 
period. The Department will consider statements made during the 
teleconferences and will include them in the administrative record 
along with the written comments. The Department strongly encourages 
Native Hawaiian organizations and federally recognized tribes in the 
continental United States to hold their own meetings to develop 
comments on this proposed rule, and to share the outcomes of those 
meetings with us.
    1. Public Meetings by Teleconference. The Department will conduct 
two public meetings by teleconference to receive public comments on 
this proposed rule on the following schedule:
Monday, October 26, 2015
2 p.m.-5 p.m. Eastern Time/8 a.m.-11 a.m. Hawaii Standard Time
Call-in number: 1-888-947-9025
Passcode: 1962786
Saturday, November 7, 2015
3 p.m.-6 p.m. Eastern Time/9 a.m.-12 p.m. Hawaii Standard Time
Call-in number: 1-888-947-9025
Passcode: 1962786

    2. Consultations with Native Hawaiian Organizations. The Department 
is legally required to consult with Native Hawaiian organizations in 
some circumstances. Although such consultation is not required for this 
proposed rule, the Department is electing to conduct such consultation 
in order to enhance participation from the Native Hawaiian community. 
The Department maintains a Native Hawaiian Organization Notification 
List, available at www.doi.gov/ohr/nholist/nhol, which includes Native 
Hawaiian organizations registered through the designated process. 
Representatives from Native Hawaiian organizations that appear on this 
list are invited to participate in a teleconference scheduled below:
Tuesday, October 27, 2015
3 p.m.-6 p.m. Eastern Time/9 a.m.-12 p.m. Hawaii Standard Time
Call-in number: 1-888-947-9025
Passcode: 1962786

Participation will be limited to one telephone line for each listed 
organization and up to two of their representatives. Only those 
organizations that appear on the Native Hawaiian Organization 
Notification List may participate in this consultation. Please RSVP to 
RSVPpart50@doi.gov for this meeting only. No RSVP is necessary for the 
other meetings.
    3. Tribal Consultation. The Department will also conduct a tribal 
consultation by teleconference. The Department conducts such 
consultations in accordance with Executive Order 13175, 65 FR 67249 
(Nov. 6, 2000); the Presidential Memorandum for the Heads of Executive 
Departments and Agencies on Tribal Consultation, 74 FR 57881 (Nov. 5, 
2009); and the Department of the Interior Policy on Consultation with 
Indian Tribes. Tribal consultations are only for elected or duly 
appointed representatives of federally recognized tribes in the 
continental United States, as discussions are held on a government-to-
government basis. The following teleconference may be closed to the 
public:
Wednesday, November 4, 2015
1:30 p.m.-4:30 p.m. Eastern Time
Call-in number: 1-888-947-9025
Passcode: 1962786

Meeting information will also be made available for the tribal 
consultations in the continental United States by ``Dear Tribal 
Leader'' notice.
    Further information about these meetings, and notice of any 
additional meetings, will be posted on the ONHR Web site (https://www.doi.gov/ohr/).

V. Procedural Matters

A. Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) at the Office of Management 
and Budget (OMB) will review all significant rules. OIRA determined 
that this proposed rule is significant because it may raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in E.O. 12866.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The Executive Order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. The Department developed this proposed rule in a 
manner consistent with these requirements.

B. Regulatory Flexibility Act

    The Department certifies that this proposed rule will not have a 
significant economic effect on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

C. Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This proposed rule is not a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act. It will not result 
in the expenditure by State, local, or tribal governments in the 
aggregate, or by the private sector, of $100 million or more in any one 
year. The rule's requirements will not cause a major increase in costs 
or prices for consumers, individual industries, Federal, State, or 
local government agencies, or geographic regions. Nor will this rule 
have significant adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of U.S.-based 
enterprises to compete with foreign-based enterprises.

D. Unfunded Mandates Reform Act

    This proposed rule does not impose an unfunded mandate on State, 
local, or tribal governments or the private sector

[[Page 59128]]

of more than $100 million per year. The rule does not have a 
significant or unique effect on State, local, or tribal governments or 
the private sector. A statement containing the information required by 
the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not 
required.

E. Takings (E.O. 12630)

    Under the criteria in Executive Order 12630, this proposed rule 
does not affect individual property rights protected by the Fifth 
Amendment nor does it involve a compensable ``taking.'' A takings 
implications assessment therefore is not required.

F. Federalism (E.O. 13132)

    Under the criteria in Executive Order 13132, this proposed rule has 
no substantial and direct effect on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government. A 
federalism implications assessment therefore is not required.

G. Civil Justice Reform (E.O. 12988)

    This proposed rule complies with the requirements of Executive 
Order 12988. Specifically, this rule has been reviewed to eliminate 
errors and ambiguity and written to minimize litigation; and is written 
in clear language and contains clear legal standards.

H. Consultation With Indian Tribes (E.O. 13175)

    Under Executive Order 13175, the Department held several 
consultation sessions with federally recognized tribes in the 
continental United States. Details on these consultation sessions and 
on comments the Department received from tribes and intertribal 
organizations are described above. The Department considered each of 
those comments and addressed them, where possible, in the proposed 
rule.

I. Paperwork Reduction Act

    This proposed rule does not require an information collection from 
ten or more parties, and a submission under the Paperwork Reduction Act 
of 1995, 44 U.S.C. 3501 et seq., is not required.

J. National Environmental Policy Act

    This proposed rule does not constitute a major Federal action 
significantly affecting the quality of the human environment because it 
is of an administrative, technical, or procedural nature. See 43 CFR 
46.210(i). No extraordinary circumstances exist that would require 
greater review under the National Environmental Policy Act of 1969.

K. Information Quality Act

    In developing this proposed rule we did not conduct or use a study, 
experiment, or survey requiring peer review under the Information 
Quality Act (Pub. L. 106-554).

L. Effects on the Energy Supply (E.O. 13211)

    This proposed rule is not a significant energy action under the 
definition in Executive Order 13211. A Statement of Energy Effects is 
not required. This rule will not have a significant effect on the 
nation's energy supply, distribution, or use.

M. Clarity of This Regulation

    Executive Orders 12866 and 12988 and by the Presidential Memorandum 
of June 1, 1998, require the Department to write all rules in plain 
language. This means that each rule the Department publishes must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that the Department did not met these requirements, 
please send comments by one of the methods listed in the ``COMMENTS'' 
section. To better help the Department revise the rule, your comments 
should be as specific as possible. For example, you should tell us the 
numbers of the sections or paragraphs that are unclearly written, which 
sections or sentences are too long, the sections where you believe 
lists or tables would be useful, etc.

N. Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask the Department in your comment to withhold your personal 
identifying information from public review, we cannot guarantee that we 
will be able to do so.
    If you send an email comment directly to the Department without 
going through https://www.regulations.gov, your email address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, the Department recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If the Department 
cannot read your comment due to technical difficulties and cannot 
contact you for clarification, the Department may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, avoid any form of encryption, and be free of any defects or 
viruses.
    The Department cannot ensure that comments received after the close 
of the comment period (see DATES) will be included in the docket for 
this rulemaking and considered. Comments sent to an address other than 
those listed above will not be included in the docket for this 
rulemaking.

List of Subjects in 43 CFR Part 50

    Administrative practice and procedure, Indians--tribal government.

Proposed Rule

    For the reasons stated in the preamble, the Department of the 
Interior proposes to amend title 43 of the Code of Federal Regulations 
by adding part 50 to read as follows:

PART 50--PROCEDURES FOR REESTABLISHING A FORMAL GOVERNMENT-TO-
GOVERNMENT RELATIONSHIP WITH THE NATIVE HAWAIIAN COMMUNITY

Subpart A--General Provisions
Sec.
50.1 What is the purpose of this part?
50.2 How will reestablishment of this formal government-to-
government relationship occur?
50.3 May the Native Hawaiian community reorganize itself based on 
island or other geographic, historical, or cultural ties?
50.4 What definitions apply to terms used in this part?
Subpart B--Criteria for Reestablishing a Formal Government-to-
Government Relationship
50.10 What are the required elements of a request to reestablish a 
formal government-to-government relationship with the United States?
50.11 What process is required in drafting the governing document?
50.12 What documentation is required to demonstrate how the Native 
Hawaiian community determined who could participate in ratifying a 
governing document?
50.13 What must be included in the governing document?
50.14 What information about the ratification referendum must be 
included in the request?

[[Page 59129]]

50.15 What information about the elections for government offices 
must be included in the request?
50.16 What criteria will the Secretary apply when deciding whether 
to reestablish the formal government-to-government relationship?
Subpart C--Process for Reestablishing a Formal Government-to-Government 
Relationship

Submitting a Request

50.20 How may a request be submitted?
50.21 Is the Department available to provide technical assistance?

Public Comments and Responses to Public Comments

50.30 What opportunity will the public have to comment on a request?
50.31 What opportunity will the requester have to respond to 
comments?
50.32 May the deadlines in this part be extended?

The Secretary's Decision

50.40 When will the Secretary issue a decision?
50.41 What will the Secretary's decision include?
50.42 When will the Secretary's decision take effect?
50.43 What does it mean for the Secretary to grant a request?
50.44 How will the formal government-to-government relationship 
between the United States Government and the Native Hawaiian 
Governing Entity be implemented?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 479a, 479a-1; 43 U.S.C. 
1457; Hawaiian Homes Commission Act, 1920 (Act of July 9, 1921, 42 
Stat. 108), as amended; Act of March 19, 1959, 73 Stat. 4; Joint 
Resolution of November 23, 1993, 107 Stat. 1510; Act of November 2, 
1994, sec. 103, 108 Stat. 4791; 112 Departmental Manual 28.

Subpart A--General Provisions


Sec.  50.1  What is the purpose of this part?

    This part sets forth the Department's administrative procedure and 
criteria for reestablishing a formal government-to-government 
relationship between the United States and the Native Hawaiian 
community to allow the United States to more effectively implement and 
administer:
    (a) The special political and trust relationship that Congress 
established between the United States and the Native Hawaiian 
community; and
    (b) The Federal programs, services, and benefits that Congress 
created specifically for the Native Hawaiian community (see, e.g., 12 
U.S.C. 1715z-13b; 20 U.S.C. 80q et seq.; 20 U.S.C. 7511 et seq.; 25 
U.S.C. 3001 et seq.; 25 U.S.C. 4221 et seq.; 42 U.S.C. 2991 et seq.; 42 
U.S.C. 3057g et seq.; 42 U.S.C. 11701 et seq.; 54 U.S.C. 302706).


Sec.  50.2  How will reestablishment of this formal government-to-
government relationship occur?

    A Native Hawaiian government seeking to reestablish a formal 
government-to-government relationship with the United States under this 
part must submit to the Secretary a request as described in Sec.  
50.10. Reestablishment of a formal government-to-government 
relationship will occur if the Secretary grants the request as 
described in Sec. Sec.  50.40 through 50.43.


Sec.  50.3  May the Native Hawaiian community reorganize itself based 
on island or other geographic, historical, or cultural ties?

    The Secretary will reestablish a formal government-to-government 
relationship with only one sovereign Native Hawaiian government, which 
may include political subdivisions with limited powers of self-
governance defined in the Native Hawaiian government's governing 
document.


Sec.  50.4  What definitions apply to terms used in this part?

    As used in this part, the following terms have the meanings given 
in this section:
    Continental United States means the contiguous 48 states and 
Alaska.
    Department means the Department of the Interior.
    DHHL means the Department of Hawaiian Home Lands, or the agency or 
department of the State of Hawaii that is responsible for administering 
the HHCA.
    Federal Indian programs, services, and benefits means any federally 
funded or authorized special program, service, or benefit provided by 
any Federal agency (including, but not limited to, the Bureau of Indian 
Affairs and the Indian Health Service) to Indian tribes in the 
continental United States or their members because of their status as 
Indians.
    Federal Native Hawaiian programs, services, and benefits means any 
federally funded or authorized special program, service, or benefit 
provided by any Federal agency to a Native Hawaiian government, its 
political subdivisions (if any), its members, the Native Hawaiian 
community, Native Hawaiians, or HHCA-eligible Native Hawaiians because 
of their status as Native Hawaiians.
    Governing document means a written document (e.g., constitution) 
embodying a government's fundamental and organic law.
    Hawaiian home lands means all lands given the status of Hawaiian 
home lands under the HHCA (or corresponding provisions of the 
Constitution of the State of Hawaii), the HHLRA, or any other Act of 
Congress, and all lands acquired pursuant to the HHCA.
    HHCA means the Hawaiian Homes Commission Act, 1920 (Act of July 9, 
1921, 42 Stat. 108), as amended.
    HHCA-eligible Native Hawaiian means a Native Hawaiian individual 
who meets the definition of ``native Hawaiian'' in HHCA sec. 201(a)(7), 
42 Stat. 108, regardless of whether the individual resides on Hawaiian 
home lands, is an HHCA lessee, is on a wait list for an HHCA lease, or 
receives any benefits under the HHCA.
    HHLRA means the Hawaiian Home Lands Recovery Act (Act of November 
2, 1995, 109 Stat. 357), as amended.
    Native Hawaiian means any individual who is a:
    (1) Citizen of the United States, and
    (2) Descendant of the aboriginal people who, prior to 1778, 
occupied and exercised sovereignty in the area that now constitutes the 
State of Hawaii.
    Native Hawaiian community means the distinct indigenous political 
community that Congress, exercising its plenary power over Native 
American affairs, has recognized and with which Congress has 
implemented a special political and trust relationship.
    Native Hawaiian Governing Entity means the Native Hawaiian 
community's representative sovereign government with which the 
Secretary reestablishes a formal government-to-government relationship.
    Request means an express written submission to the Secretary asking 
for designation as the Native Hawaiian Governing Entity.
    Requester means the government that submits to the Secretary a 
request seeking to be designated as the Native Hawaiian Governing 
Entity.
    Secretary means the Secretary of the Interior or that officer's 
authorized representative.

Subpart B--Criteria for Reestablishing a Formal Government-to-
Government Relationship


Sec.  50.10  What are the required elements of a request to reestablish 
a formal government-to-government relationship with the United States?

    A request must include the following seven elements:
    (a) A written narrative with supporting documentation thoroughly 
describing how the Native Hawaiian community drafted the governing 
document, as described in Sec.  50.11;
    (b) A written narrative with supporting documentation thoroughly 
describing how the Native Hawaiian community determined who can

[[Page 59130]]

participate in ratifying a governing document, consistent with Sec.  
50.12;
    (c) The duly ratified governing document, as described in Sec.  
50.13;
    (d) A written narrative with supporting documentation thoroughly 
describing how the Native Hawaiian community adopted or approved the 
governing document in a ratification referendum, as described in Sec.  
50.14;
    (e) A written narrative with supporting documentation thoroughly 
describing how and when elections were conducted for government offices 
identified in the governing document, as described in Sec.  50.15;
    (f) A duly enacted resolution of the governing body authorizing an 
officer to certify and submit to the Secretary a request seeking the 
reestablishment of a formal government-to-government relationship with 
the United States; and
    (g) A certification, signed and dated by the authorized officer, 
stating that the submission is the request of the governing body.


Sec.  50.11  What process is required in drafting the governing 
document?

    The written narrative thoroughly describing the process for 
drafting the governing document must describe how the process ensured 
that the document was based on meaningful input from representative 
segments of the Native Hawaiian community and reflects the will of the 
Native Hawaiian community.


Sec.  50.12  What documentation is required to demonstrate how the 
Native Hawaiian community determined who could participate in ratifying 
a governing document?

    The written narrative thoroughly describing how the Native Hawaiian 
community determined who could participate in ratifying a governing 
document must explain the processes for verifying that participants 
were Native Hawaiians and for verifying those who were also HHCA-
eligible Native Hawaiians, and should further explain how those 
processes were rational and reliable. For purposes of determining who 
may participate in the ratification process:
    (a) The Native Hawaiian community may provide:
    (1) That the definition for a Native Hawaiian may be satisfied by:
    (i) Enumeration in official DHHL records demonstrating eligibility 
under the HHCA, excluding noncitizens of the United States;
    (ii) Enumeration on a roll of Native Hawaiians certified by a State 
of Hawaii commission or agency under State law, where enumeration is 
based on documentation that verifies descent, excluding noncitizens of 
the United States; or
    (iii) Other means to document generation-by-generation descent from 
a Native Hawaiian; and
    (2) That the definition for an HHCA-eligible Native Hawaiian may be 
satisfied by:
    (i) Enumeration in official DHHL records demonstrating eligibility 
under the HHCA, excluding noncitizens of the United States; or
    (ii) Other records or documentation demonstrating eligibility under 
the HHCA; or
    (b) The Native Hawaiian community may use a roll of Native 
Hawaiians certified by a State of Hawaii commission or agency under 
State law as an accurate and complete list of Native Hawaiians eligible 
to vote in the ratification referendum: Provided, that:
    (1) The roll was:
    (i) Based on documentation that verified descent;
    (ii) Compiled in accordance with applicable due-process principles; 
and
    (iii) Published and made available for inspection following 
certification; and
    (2) The Native Hawaiian community also:
    (i) Included adult citizens of the United States who demonstrated 
eligibility under the HHCA according to official DHHL records;
    (ii) Removed persons who are not citizens of the United States;
    (iii) Removed persons who were younger than 18 years of age on the 
last day of the ratification referendum;
    (iv) Removed persons who were enumerated without documentation that 
verified descent; and
    (v) Removed persons who voluntarily requested to be removed.


Sec.  50.13  What must be included in the governing document?

    The governing document must:
    (a) State the government's official name;
    (b) Prescribe the manner in which the government exercises its 
sovereign powers;
    (c) Establish the institutions and structure of the government, and 
of its political subdivisions (if any) that are defined in a fair and 
reasonable manner;
    (d) Authorize the government to negotiate with governments of the 
United States, the State of Hawaii, and political subdivisions of the 
State of Hawaii, and with non-governmental entities;
    (e) Provide for periodic elections for government offices 
identified in the governing document;
    (f) Describe the criteria for membership, which:
    (1) Must permit HHCA-eligible Native Hawaiians to enroll;
    (2) May permit Native Hawaiians who are not HHCA-eligible Native 
Hawaiians, or some defined subset of that group that is not contrary to 
Federal law, to enroll;
    (3) Must exclude persons who are not Native Hawaiians;
    (4) Must establish that membership is voluntary and may be 
relinquished voluntarily; and
    (5) Must exclude persons who voluntarily relinquished membership.
    (g) Protect and preserve Native Hawaiians' rights, protections, and 
benefits under the HHCA and the HHLRA;
    (h) Protect and preserve the liberties, rights, and privileges of 
all persons affected by the government's exercise of its powers, see 25 
U.S.C. 1301 et seq.;
    (i) Describe the procedures for proposing and ratifying amendments 
to the governing document; and
    (j) Not contain provisions contrary to Federal law.


Sec.  50.14  What information about the ratification referendum must be 
included in the request?

    The written narrative thoroughly describing the ratification 
referendum must include the following information:
    (a) A certification of the results of the ratification referendum 
including:
    (1) The date or dates of the ratification referendum;
    (2) The number of Native Hawaiians, regardless of whether they were 
HHCA-eligible Native Hawaiians, who cast a vote in favor of the 
governing document;
    (3) The total number of Native Hawaiians, regardless of whether 
they were HHCA-eligible Native Hawaiians, who cast a ballot in the 
ratification referendum;
    (4) The number of HHCA-eligible Native Hawaiians who cast a vote in 
favor of the governing document; and
    (5) The total number of HHCA-eligible Native Hawaiians who cast a 
ballot in the ratification referendum.
    (b) A description of how the Native Hawaiian community conducted 
the ratification referendum that demonstrates:
    (1) How and when the Native Hawaiian community made the full text 
of the proposed governing document (and a brief impartial description 
of that document) available to Native Hawaiians prior to the 
ratification referendum, through the Internet, the news media, and 
other means of communication;
    (2) How and when the Native Hawaiian community notified Native 
Hawaiians about how and when it

[[Page 59131]]

would conduct the ratification referendum;
    (3) How the Native Hawaiian community accorded Native Hawaiians a 
reasonable opportunity to vote in the ratification referendum;
    (4) How the Native Hawaiian community prevented voters from casting 
more than one ballot in the ratification referendum; and
    (5) How the Native Hawaiian community ensured that the ratification 
referendum:
    (i) Was free and fair;
    (ii) Was held by secret ballot or equivalent voting procedures;
    (iii) Was open to all persons who were verified as satisfying the 
definition of a Native Hawaiian (consistent with Sec.  50.12) and were 
18 years of age or older, regardless of residency;
    (iv) Did not include in the vote tallies votes cast by persons who 
were not Native Hawaiians; and
    (v) Did not include in the vote tallies for HHCA-eligible Native 
Hawaiians votes cast by persons who were not HHCA-eligible Native 
Hawaiians.
    (c) A description of how the Native Hawaiian community verified 
whether a potential voter in the ratification referendum was a Native 
Hawaiian and whether that potential voter was also an HHCA-eligible 
Native Hawaiian, consistent with Sec.  50.12.


Sec.  50.15  What information about the elections for government 
offices must be included in the request?

    The written narrative thoroughly describing how and when elections 
were conducted for government offices identified in the governing 
document, including members of the governing body, must show that the 
elections were:
    (a) Free and fair;
    (b) Held by secret ballot or equivalent voting procedures; and
    (c) Open to all eligible Native Hawaiian members as defined in the 
governing document.


Sec.  50.16  What criteria will the Secretary apply when deciding 
whether to reestablish the formal government-to-government 
relationship?

    The Secretary shall grant a request if the Secretary determines 
that the following exclusive list of eight criteria has been met:
    (a) The request includes the seven required elements described in 
Sec.  50.10;
    (b) The process by which the Native Hawaiian community drafted the 
governing document met the requirements of Sec.  50.11;
    (c) The process by which the Native Hawaiian community determined 
who could participate in ratifying the governing document met the 
requirements of Sec.  50.12;
    (d) The duly ratified governing document, submitted as part of the 
request, meets the requirements of Sec.  50.13;
    (e) The ratification referendum for the governing document met the 
requirements of Sec.  50.14(b) and (c) and was conducted in a manner 
not contrary to Federal law;
    (f) The elections for the government offices identified in the 
governing document, including members of the governing body, were 
consistent with Sec.  50.15 and were conducted in a manner not contrary 
to Federal law;
    (g) The number of votes that Native Hawaiians, regardless of 
whether they were HHCA-eligible Native Hawaiians, cast in favor of the 
governing document exceeded half of the total number of ballots that 
Native Hawaiians cast in the ratification referendum: Provided, that 
the number of votes cast in favor of the governing document in the 
ratification referendum was sufficiently large to demonstrate broad-
based community support among Native Hawaiians; and Provided Further, 
that, if fewer than 30,000 Native Hawaiians cast votes in favor of the 
governing document, this criterion is not satisfied; and Provided 
Further, that, if more than 50,000 Native Hawaiians cast votes in favor 
of the governing document, the Secretary shall apply a strong 
presumption that this criterion is satisfied; and
    (h) The number of votes that HHCA-eligible Native Hawaiians cast in 
favor of the governing document exceeded half of the total number of 
ballots that HHCA-eligible Native Hawaiians cast in the ratification 
referendum: Provided, that the number of votes cast in favor of the 
governing document in the ratification referendum was sufficiently 
large to demonstrate broad-based community support among HHCA-eligible 
Native Hawaiians; and Provided Further, that, if fewer than 9,000 HHCA-
eligible Native Hawaiians cast votes in favor of the governing 
document, this criterion is not satisfied; and Provided Further, that, 
if more than 15,000 HHCA-eligible Native Hawaiians cast votes in favor 
of the governing document, the Secretary shall apply a strong 
presumption that this criterion is satisfied.

Subpart C--Process for Reestablishing a Formal Government-to-
Government Relationship

Submitting a Request


Sec.  50.20  How may a request be submitted?

    A request under this part may be submitted to the Department of the 
Interior, 1849 C Street NW., Washington, DC 20240.


Sec.  50.21  Is the Department available to provide technical 
assistance?

    Yes. The Department may provide technical assistance to facilitate 
compliance with this part and with other Federal law, upon request for 
assistance.

Public Comments and Responses to Public Comments


Sec.  50.30  What opportunity will the public have to comment on a 
request?

    (a) Within 20 days after receiving a request that is consistent 
with Sec.  50.10 and Sec.  50.16(g)-(h), the Department will publish 
notice of receipt of the request in the Federal Register and post the 
following on the Department Web site:
    (1) The request, including the governing document;
    (2) The name and mailing address of the requester;
    (3) The date of receipt; and
    (4) Notice of an opportunity for the public, within a 30-day 
comment period following the Web site posting, to submit comments and 
evidence on whether the request meets the criteria described in Sec.  
50.16.
    (b) Within 10 days after the close of the comment period, the 
Department will post on its Web site any comment or notice of evidence 
relating to the request that was timely submitted to the Department 
under paragraph (a)(4) of this section.


Sec.  50.31  What opportunity will the requester have to respond to 
comments?

    Following the Web site posting described in Sec.  50.30(b), the 
requester will have 30 days to respond to any comment or evidence that 
was timely submitted to the Department under Sec.  50.30(a)(4).


Sec.  50.32  May the deadlines in this part be extended?

    Yes. Upon a finding of good cause, the Secretary may extend any 
deadline in this part by posting on the Department Web site and 
publishing in the Federal Register the length of and the reasons for 
the extension.

The Secretary's Decision


Sec.  50.40  When will the Secretary issue a decision?

    The Secretary may request additional documentation and explanation 
with respect to material required to be submitted by the requester 
under this part. The Secretary will apply the criteria described in 
Sec.  50.16 and endeavor to either grant or deny a request within 120 
days of determining

[[Page 59132]]

that the requester's submission is complete, after receiving any 
additional information the Secretary deems necessary and after 
receiving all the information described in Sec. Sec.  50.30 and 50.31.


Sec.  50.41  What will the Secretary's decision include?

    The decision will respond to significant public comments and 
summarize the evidence, reasoning, and analyses that are the basis for 
the Secretary's determination regarding whether the request meets the 
criteria described in Sec.  50.16.


Sec.  50.42  When will the Secretary's decision take effect?

    The Secretary's decision will take effect with the publication of a 
document in the Federal Register.


Sec.  50.43  What does it mean for the Secretary to grant a request?

    When a decision granting a request takes effect, the requester will 
immediately be identified as the Native Hawaiian Governing Entity (or 
the official name stated in that entity's governing document), the 
special political and trust relationship between the United States and 
the Native Hawaiian community will be reaffirmed, and a formal 
government-to-government relationship will be reestablished with the 
Native Hawaiian Governing Entity as the sole representative sovereign 
government of the Native Hawaiian community.


Sec.  50.44  How will the formal government-to-government relationship 
between the United States Government and the Native Hawaiian Governing 
Entity be implemented?

    (a) Upon reestablishment of the formal government-to-government 
relationship, the Native Hawaiian Governing Entity will have the same 
government-to-government relationship under the United States 
Constitution and Federal law as the government-to-government 
relationship between the United States and a federally recognized tribe 
in the continental United States, and the same inherent sovereign 
governmental authorities.
    (b) The Native Hawaiian Governing Entity will be subject to 
Congress's plenary authority.
    (c) Absent Federal law to the contrary, any member of the Native 
Hawaiian Governing Entity will be eligible for current Federal Native 
Hawaiian programs, services, and benefits.
    (d) The Native Hawaiian Governing Entity, its political 
subdivisions (if any), and its members will not be eligible for Federal 
Indian programs, services, and benefits unless Congress expressly and 
specifically has declared the Native Hawaiian community, the Native 
Hawaiian Governing Entity (or the official name stated in that entity's 
governing document), its political subdivisions (if any), its members, 
Native Hawaiians, or HHCA-eligible Native Hawaiians to be eligible.
    (e) Reestablishment of the formal government-to-government 
relationship will not authorize the Native Hawaiian Governing Entity to 
sell, dispose of, lease, or encumber Hawaiian home lands or interests 
in those lands, or to diminish any Native Hawaiian's rights, 
protections, or benefits, including any immunity from State or local 
taxation, granted by:
    (1) The HHCA;
    (2) The HHLRA;
    (3) The Act of March 18, 1959, 73 Stat. 4; or
    (4) The Act of November 11, 1993, secs. 10001-10004, 107 Stat. 
1418, 1480-84.
    (f) Reestablishment of the formal government-to-government 
relationship will not affect the title, jurisdiction, or status of 
Federal lands and property in Hawaii.
    (g) Nothing in this part impliedly amends, repeals, supersedes, 
abrogates, or overrules any provision of Federal law, including case 
law, affecting the privileges, immunities, rights, protections, 
responsibilities, powers, limitations, obligations, authorities, or 
jurisdiction of any tribe in the continental United States.

Michael L. Connor,
Deputy Secretary.
[FR Doc. 2015-24712 Filed 9-29-15; 11:15 am]
BILLING CODE 4334-63-P