Procedures for Reestablishing a Formal Government-to-Government Relationship With the Native Hawaiian Community, 71278-71323 [2016-23720]
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DEPARTMENT OF THE INTERIOR
(V) Public Meetings and Tribal Consultations
(VI) Procedural Matters
Office of the Secretary
(I) Executive Summary
The final rule sets forth an
administrative procedure and criteria
that the Secretary would use if the
Native Hawaiian community forms a
unified government that then seeks a
formal government-to-government
relationship with the United States. The
rule does not provide a process for
reorganizing a Native Hawaiian
government. The decision to reorganize
a Native Hawaiian government and to
establish a formal government-togovernment relationship is for the
Native Hawaiian community to make as
an exercise of self-determination.
Congress already federally
acknowledged or recognized the Native
Hawaiian community by establishing a
special political and trust relationship
through over 150 enactments. This
unique special political and trust
relationship exists even though Native
Hawaiians have not had an organized
government since the overthrow of the
Kingdom of Hawaii in 1893.
Accordingly, this rule provides a
process and criteria for reestablishing a
formal government-to-government
relationship that would enable a
reorganized Native Hawaiian
government to represent the Native
Hawaiian community and conduct
government-to-government relations
with the United States under the
Constitution and applicable Federal
law. The term ‘‘formal government-togovernment relationship’’ in this rule
refers to the working relationship with
the United States that will occur if the
Native Hawaiian community
reorganizes and submits a request
consistent with the rule’s criteria.
Importantly, the process set out in
this rule is optional and Federal action
will occur only upon an express, formal
request from the reorganized Native
Hawaiian government. The rule also
provides a process for public comment
on the request and a process for the
Secretary to receive, evaluate, and act
on the request.
43 CFR Part 50
[Docket No. DOI–2015–0005;
145D010DMDS6CS00000.000000
DX.6CS252410]
RIN 1090–AB05
Procedures for Reestablishing a
Formal Government-to-Government
Relationship With the Native Hawaiian
Community
Office of the Secretary,
Department of the Interior.
ACTION: Final rule.
AGENCY:
This final rule establishes the
Secretary of the Interior’s (Secretary)
administrative process for reestablishing
a formal government-to-government
relationship with the Native Hawaiian
community to more effectively
implement the special political and
trust relationship that Congress
established between that community
and the United States. The 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 rule
establishes an administrative procedure
and criteria that the Secretary would use
if the Native Hawaiian community
forms a unified government that then
seeks a formal government-togovernment relationship with the
United States. Consistent with the
Federal policy of self-determination and
self-governance for indigenous
communities, the Native Hawaiian
community itself would determine
whether and how to reorganize its
government.
SUMMARY:
This rule is effective November
14, 2016.
FOR FURTHER INFORMATION CONTACT:
Jennifer Romero, Senior Advisor for
Native Hawaiian Affairs, Office of the
Secretary, 202–208–3100.
SUPPLEMENTARY INFORMATION:
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DATES:
(I) Executive Summary
(II) Background
(III) Overview of Final Rule
(A) How the Rule Works
(B) Major Changes
(C) Key Issues
(D) Section-by-Section Analysis
(IV) Public Comments on the Proposed Rule
and Responses to Comments
(A) Overview
(B) Responses to Significant Public
Comments on the Proposed Rule
(1) Issue-Specific Responses to Comments
(2) Section-by-Section Responses to
Comments
(C) Tribal Summary Impact Statement
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(II) Background
The Native Hawaiian community has
a unique legal relationship with the
United States, as well as inherent
sovereign authority that has not been
abrogated or relinquished, as evidenced
by Congress’s consistent treatment of
this community over an extended
period of time. Over many decades,
Congress enacted more than 150 statutes
recognizing and implementing a special
political and trust relationship with the
Native Hawaiian community.
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‘‘Recognition is a formal political act
[that] permanently establishes a
government-to-government relationship
between the United States and the
recognized tribe as a ‘domestic
dependent nation,’ and imposes on the
government a fiduciary trust
relationship to the tribe and its
members. Recognition is also a
constitutive act: It institutionalizes the
tribe’s quasi-sovereign status, along with
all the powers accompanying that status
such as the power to tax, and to
establish a separate judiciary.’’ Cohen’s
Handbook of Federal Indian Law sec.
3.02[3], at 134 (2012 ed.) (citing H.R.
Rep. No. 103–781, at 2 (1994)) (footnotes
and internal quotation marks and
brackets omitted).
A government-to-government
relationship encompasses the political
relationship between sovereigns and a
working relationship between the
officials of those two sovereigns.
Although the Native Hawaiian
community has been without a formal
government for over a century, Congress
recognized the continuity of the Native
Hawaiian community through over 150
separate statutes, which ensures it has a
special political and trust relationship
with the United States. At the same
time, a working relationship between
government officials is absent. This
rulemaking provides the Native
Hawaiian community with an
opportunity to have a working
relationship, referred to as the ‘‘formal
government-to-government
relationship.’’ The Native Hawaiian
community’s current relationship with
the United States has substantively all
of the other attributes of a governmentto-government relationship, and might
be described as a ‘‘sovereign to
sovereign’’ or ‘‘government to
sovereign’’ relationship. It is important
to note that a special political and trust
relationship may continue to exist even
without a formal government-togovernment relationship.
Among other things, the more than
150 statutes that Congress has enacted
over many decades 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 Indian
tribes in the continental United States.
But during this same period, the United
States has not had a formal governmentto-government relationship with Native
Hawaiians 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
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overthrow the Kingdom of Hawaii.
Many Native Hawaiians contend that
their community’s opportunities to
thrive would be significantly bolstered
through a sovereign Native Hawaiian
government whose leadership could
engage the United States in a formal
government-togovernment 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 Constitution,
treaties, statutes, Executive Orders,
administrative regulations, and judicial
precedent. The Federal Government’s
relationship with federally-recognized
tribes includes 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,
developed processes to help tribes in
the continental United States establish
mechanisms to conduct formal
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 an administrative
process for establishing a formal
government-to-government relationship
has long been denied to members of one
of the Nation’s largest indigenous
communities: Native Hawaiians. This
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.
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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.’’ Native
Hawaiian Education Act, 20 U.S.C.
7512(2); accord Native Hawaiian Health
Care Act, 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 (2015), available
at https://www.regulations.gov/
document?D=DOI-2015-0005-4290
(comment number 4290) (Moolelo Ea O
Na Hawaii); Ralph S. Kuykendall, The
Hawaiian Kingdom Vol. I: 1778–1854,
Foundation and Transformation (1947).
Kamehameha I’s reign ended with his
death in 1819 but the Kingdom of
Hawaii, led by Native Hawaiian
monarchs, continued. Id.
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 Hawaiian
monarchs.’’ 42 U.S.C. 11701(6); accord
20 U.S.C. 7512(4); see Rice, 528 U.S. at
504 (citing treaties that the United
States and the Kingdom of Hawaii
concluded in 1826, 1849, 1875, and
1887); S. Rep. No. 103–126 (1993)
(compiling conventions, treaties, and
presidential messages extending U.S.
diplomatic recognition to the Hawaiian
government); Moolelo Ea O Na Hawaii
at 209–11, 240–47. But during that same
period, Westerners became
‘‘increasing[ly] involve[d] . . . in the
economic and political affairs of the
Kingdom,’’ Rice, 528 U.S. at 501, 504–
05, over vocal protest by Native
Hawaiians. See, e.g., Kuykendall at 258–
60. An example of such involvement
was adoption of the 1887 ‘‘Bayonet
Constitution’’ that resulted in mass
disenfranchisement of Native Hawaiians
by imposing wealth and property
qualifications on voters, among other
changes in Kingdom governance. See,
e.g., Noenoe K. Silva, Kanaka Maoli
Resistance to Annexation, 1 Oiwi: A
Native Hawaiian Journal 43 (1998);
Kuykendall, The Hawaiian Kingdom
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Vol. III: 1874–1893, The Kalakaua
Dynasty (1967); Neil M. Levy, Native
Hawaiian Land Rights, 63 Cal. L. Rev.
848, 861 (1975) (chronicling the
displacement of Native Hawaiians from
their land). Although Native Hawaiian
monarchs continued to rule the
Kingdom, the Bayonet Constitution
triggered mass meetings and other forms
of organized political protest by Native
Hawaiians. This led to the
establishment of Hui Kalaiaina, a Native
Hawaiian political organization that
advocated the replacement of that
Constitution and protested subsequent
annexation efforts. See Noenoe K. Silva,
Aloha Betrayed 127–29 (2004); S. Rep.
No. 107–66, at 19 n.29 (2001). It also
foreshadowed the overthrow of the
Kingdom in 1893 by a small group of
non-Native Hawaiians, aided by the
United States Minister to Hawaii and
the Armed Forces of the United States.
See generally Moolelo Ea O Na Hawaii
at 387–402; 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.); Kuykendall, The Hawaiian
Kingdom Vol. III at 582–605.
The Kingdom was overthrown in
January 1893 by a ‘‘Committee of
Safety’’ comprised of American and
European sugar planters, descendants of
missionaries, and financiers. S. Rep. No.
103–126, at 21 (1993). The Committee
established a provisional government,
which later declared itself to be the
Republic of Hawaii, and the U.S.
Minister to the Kingdom of Hawaii
‘‘immediately extended diplomatic
recognition’’ to the provisional
government ‘‘without the consent of
Queen Liliuokalani or the Native
Hawaiian people.’’ Id. at 21. Indeed, in
his December 18, 1893 message to
Congress concerning the Hawaiian
Islands, President Grover Cleveland
described the provisional government as
an ‘‘oligarchy set up without the assent
of the [Hawaiian] people,’’ id. at 32, and
noted, ‘‘there is no pretense of any [ ]
consent on the part of the Government
of the Queen, which at that time was
undisputed and was both the de facto
and the de jure government,’’ and that
‘‘it appears that Hawaii was taken
possession of by the United State forces
without the consent or wish of the
government of the islands, or of
anybody else so far as shown, except the
United States Minister.’’ Id. at 27–28
(quoting President Cleveland’s Message
Relating to the Hawaiian Islands—
December 18, 1893) (italics in original).
Following the overthrow of Hawaii’s
monarchy, Queen Liliuokalani, while
yielding her authority under protest to
the United States, called for
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reinstatement of Native Hawaiian
governance. Joint Resolution of
November 23, 1993, 107 Stat. 1511
(Apology Resolution). 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 45–50. In 1895, Hawaiian
nationalists loyal to Queen Liliuokalani
attempted to regain control of the
Hawaiian government. Id. at 49–50.
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.
See Moolelo Ea O Na Hawaii at 424–28.
These ‘‘Kue Petitions’’ are part of this
rule’s administrative record.
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 selfgovernment and self-determination.’’
Native Hawaiian Health Care Act, 42
U.S.C. 11701(11). The Republic of
Hawaii ceded 1.8 million acres of land
to the United States ‘‘without the
consent of or compensation to the
Native Hawaiian people of Hawaii or
their sovereign government,’’ Apology
Resolution at 1512, and Congress passed
a joint resolution—the Newlands
Resolution (also known as the Joint
Resolution of Annexation)—annexing
the islands in 1898. See Rice, 528 U.S.
at 505.
Under the Newlands Resolution, the
United States accepted the Republic of
Hawaii’s cession of ‘‘all rights of
sovereignty of whatsoever kind in and
over the Hawaiian Islands and their
dependencies,’’ and resolved that the
Hawaiian Islands were ‘‘annexed as part
of the territory of the United States’’ and
became subject to the ‘‘sovereign
dominion’’ of the United States. No
consent to these terms was provided by
the Kingdom of Hawaii; rather, the joint
resolution ‘‘effectuated a transaction
between the Republic of Hawaii and the
United States’’ without direct
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relinquishment by the Native Hawaiian
people of their claims to sovereignty as
a people or over their national lands to
the United States. Moolelo Ea O Na
Hawaii at 431 (citing the Apology
Resolution). Indeed, at the time of
annexation, Native Hawaiians did not
have an opportunity to vote on whether
they favored annexation by the United
States. Jon M. Van Dyke, The Political
Status of the Native Hawaiian People,
17 Yale L. & Pol’y Rev. 95, 103 (1998).
The Hawaiian Organic Act, enacted in
1900, established the Territory of
Hawaii, extended the U.S. Constitution
to the territory, 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 (Organic Act).
Hawaii was a U.S. territory for six
decades prior to becoming a State,
during which time the Hawaiian
government’s ‘‘English-mainly’’ policy
of the late 1850s was replaced by the
territorial government’s policy of
‘‘English-only’’ and outright
suppression of the Hawaiian language in
public schools. See Paul F. Lucas, E Ola
Mau Kakou I Ka Olelo Makuahine:
Hawaiian Language Policy and the
Courts, 34 Hawaiian J. Hist. 1 (2000); see
also Kuykendall, The Hawaiian
Kingdom Vol. I at 360–62. See generally
Maenette K.P. Ah Nee Benham & Ronald
H. Heck, Culture and Educational Policy
in Hawaii: The Silencing of Native
Voices ch. 3 (1998); Native Hawaiian
Law: A Treatise at 1259–72 (Melody
Kapilialoha MacKenzie ed., 2015). But
various entities connected to the
Kingdom of Hawaii adopted other
methods of continuing their internal
governance and social cohesion.
Specifically, the Royal Societies, the
Bishop Estate (now Kamehameha
Schools), the Alii trusts, and civic clubs
are organizations, each with direct ties
to their royal Native Hawaiian founders,
and are prime examples of Native
Hawaiians’ continuing efforts to keep
their culture, language, governance, and
community alive. See Moolelo Ea O Na
Hawaii at 560–63; id., appendix 4.
Indeed, post-annexation, Native
Hawaiians maintained their separate
identity as a single distinct 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 (the Hawaiian
Protective Association) was an
organization formed in 1914 under the
leadership of Prince Jonah Kuhio
Kalanianaole (Prince Kuhio) alongside
other Native Hawaiian political leaders.
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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 at 501–07. The
Association established twelve 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 provide for the welfare
of the Native Hawaiian people by setting
aside and protecting Hawaiian home
lands.
(B) Congress’s Recognition of Native
Hawaiians as a Political Community
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,’’ Native Hawaiian Health
Care Improvement Act, 42 U.S.C.
11701(1); accord Native Hawaiian
Education Act, 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
Indian 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.’’ Native Hawaiian Health
Care Improvement Act, 42 U.S.C.
11701(17); see H.R. Rep. No. 66–839, at
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11 (1920) (finding constitutional
precedent for the HHCA ‘‘in previous
enactments granting Indians . . .
special privileges in obtaining and using
the public lands’’); see also Native
Hawaiian Education Act, 20 U.S.C.
7512(12)(B). Indeed, since Hawaii’s
admission to the United States,
Congress has enacted dozens of statutes
on behalf of Native Hawaiians. For
example, 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 of 1988,
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. 3221; 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.,
Kaloko-Honokokau National Park Reestablishment Act, 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. Native
Hawaiian Health Care Improvement Act,
42 U.S.C. 11701(19); accord Native
Hawaiian Education Act, 20 U.S.C.
7512(13); see, e.g., American Indian
Religious Freedom Act, 42 U.S.C. 1996–
1996a. See generally Native Hawaiian
Education Act, 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 Hawaiian Homelands
Homeownership Act, 114 Stat. 2874–75,
2968–69 (2000).
These more recent enactments
followed Congress’s enactment of the
HHCA, a Federal law that 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 at 507–09, 520–35. The HHCA
was enacted in response to the
precipitous decline in the Native
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Hawaiian population since Western
contact; by 1919, the Native Hawaiian
population declined by some estimates
from several hundred thousand in 1778
to only 22,600. 20 U.S.C. 7512(7).
Delegate Prince Kuhio, Native Hawaiian
politician and Hawaiian Civic Clubs cofounder John Wise, and U.S. Secretary
of the Interior Franklin Lane urged
Congress to set aside land to
‘‘rehabilitate’’ and help Native
Hawaiians reestablish their traditional
way of life. See H.R. Rep. No. 66–839,
at 4 (statement of Secretary Lane) (‘‘One
thing that impressed me was the fact
that the natives of the islands, who are
our wards, I should say, and for whom
in a sense we are trustees, are falling off
rapidly in numbers and many of them
are in poverty’’). Other HHCA
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.’’). Congress found constitutional
precedent for the HHCA in previous
enactments addressing Indian rights in
using public lands, H.R. Rep. No. 66–
839, at 11, and has since acknowledged
that the HHCA ‘‘affirm[ed] the trust
relationship between the United States
and the Native Hawaiians.’’ 42 U.S.C.
11701(13); accord 20 U.S.C. 7512(8).
In 1938, Congress again exercised its
trust responsibility by preserving 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 contained
two provisions expressly recognizing
Native Hawaiians and requiring the
State of Hawaii to manage lands for the
benefit of the indigenous Native
Hawaiian people. Act of March 18,
1959, 73 Stat. 4 (Admission Act). 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 trust for specific purposes,
including the betterment of 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 an
oversight role with respect to the home
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lands. See Admission Act sec. 4;
Hawaiian Home Lands Recovery Act
(HHLRA), Act of November 2, 1995, 109
Stat. 357. Congress again recognized in
more recent statutes 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.’’
Native Hawaiian Education Act, 20
U.S.C. 7512(12)(A); accord Hawaiian
Homelands Homeownership Act, 114
Stat. 2968 (2000); Native Hawaiian
Health Care Improvement Act, 42 U.S.C.
11701(1) (‘‘The Congress finds that:
Native Hawaiians comprise a distinct
and unique indigenous people with a
historical continuity to the original
inhabitants of the Hawaiian archipelago
whose society was organized as a Nation
prior to the arrival of the first
nonindigenous people in 1778.’’); see
also Hawaiian Homelands
Homeownership Act, 114 Stat. 2966
(2000); 114 Stat. 2872, 2874 (2000);
Consolidated Appropriations Act, 118
Stat. 445 (2004) (establishing the U.S.
Office of Native Hawaiian Relations).
Notably, in 1993, Congress enacted the
Apology Resolution to acknowledge the
100th anniversary of the overthrow of
the Kingdom of Hawaii and to offer an
apology to Native Hawaiians. In that
Resolution, Congress acknowledged that
the overthrow of the Kingdom of Hawaii
resulted in the suppression of Native
Hawaiians’ ‘‘inherent sovereignty’’ and
deprived them of their ‘‘rights to selfdetermination,’’ and that ‘‘long-range
economic and social changes in Hawaii
over the nineteenth and early twentieth
centuries have been devastating to the
population and to the health and wellbeing of the Hawaiian people.’’ It further
recognized 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.’’ Apology
Resolution at 1512–13; see Native
Hawaiian Education Act, 20 U.S.C.
7512(20); Native Hawaiian Health Care
Improvement Act, 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.’’
Apology Resolution at 1513. Congress
also urged the President of the United
States to ‘‘support reconciliation efforts
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between the United States and the
Native Hawaiian people.’’ Id. at 1511.
These Congressional findings and other
Congressional actions demonstrate that
indigenous Hawaiians, like numerous
tribes in the continental United States,
have both an historical and existing
cohesive political and social existence,
derived from their inherent sovereign
authority, which has survived despite
repeated external pressures to abandon
their way of life and assimilate into
mainstream American society.
The Executive Branch also made
findings and recommendations
following a series of hearings and
meetings with the Native Hawaiian
community in 1999, when the U.S.
Departments of the Interior and of
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 found that
‘‘the injustices of the past have severely
damaged the culture and general welfare
of Native Hawaiians,’’ and that
exercising self-determination over their
own affairs would enable Native
Hawaiians to ‘‘address their most
pressing political, health, economic,
social, and cultural needs.’’ Department
of the Interior & Department of Justice,
From Mauka to Makai at 4, 46–48, 51
(2000) (citing Native Hawaiians’ poor
health, poverty, homelessness, and high
incarceration rates, among other
socioeconomic impacts). The report
ultimately recommended as its top
priority that ‘‘the Native Hawaiian
people should have self-determination
over their own affairs within the
framework of Federal law.’’ Id. at 3–4.
Congress also found it significant 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.’’
Native Hawaiian Education Act, 20
U.S.C. 7512(21); see also Native
Hawaiian Health Care Improvement Act,
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 it repeatedly
recognized a continuing Native
Hawaiian community. In addition, at
the State level, recently enacted laws
mandated that members of certain state
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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 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.’’ Hawaiian Homelands
Homeownership Act, 114 Stat. 2968
(2000). Thus, ‘‘the political status of
Native Hawaiians is comparable to that
of American Indians and Alaska
Natives.’’ Native Hawaiian Education
Act, 20 U.S.C. 7512(12)(B), (D).
Congress’s treatment of Native
Hawaiians flows from that political
status of the Native Hawaiian
community.
Congress, under its plenary authority
over Indian affairs, repeatedly
acknowledged its special relationship
with the Native Hawaiian community
since the overthrow of the Kingdom of
Hawaii more than a century ago.
Congress concluded that it has a trust
obligation to Native Hawaiians in part
because it bears responsibility for the
overthrow of the Kingdom of Hawaii
and suppression of Native Hawaiians’
sovereignty over their land. But the
Federal Government has not maintained
a formal government-togovernment
relationship with the Native Hawaiian
community as 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 selfdetermination and self-governance of
Native Hawaiians 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
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Federal programs by implementing
those programs in the context of a
formal government-to-government
relationship.
Consistent with the HHCA, which is
the first Congressional enactment
clearly recognizing the Native Hawaiian
community’s special 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 implementation of the Native
Hawaiian community’s special trust
relationship with the United States
affirmed the continuing Federal role in
Native Hawaiian affairs, such as 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 Consolidated
Appropriations Act, 118 Stat. 445–46
(2004).
(C) Actions by the Continuing Native
Hawaiian Community
As discussed above, Native Hawaiians
were active participants in the political
life of the Kingdom of Hawaii, and this
activity continued following the
overthrow through coordinated
resistance to annexation and a range of
other organized forms of political and
social organizations. See generally Silva,
Aloha Betrayed; Silva, 1 Oiwi: A Native
Hawaiian Journal 40 (examining
Hawaiian-language print media and
documenting the organized Native
Hawaiian resistance to annexation);
Silva, I Ku Mau Mau: How Kanaka
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Maoli Tried to Sustain National Identity
Within the United States Political
System (documenting mass meetings,
petitions, and citizen testimonies by
Native Hawaiian political organizations
during and after the annexation period).
The Native Hawaiian community
maintained its cohesion and its distinct
political voice 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 at 535–55; see id. at
606–30 & appendix 4 (listing
organizations, their histories, and their
accomplishments). Native Hawaiians’
organized action to advance Native
Hawaiian self-determination resulted in
the passage of a set of amendments to
the State Constitution in 1978 to
reaffirm the ‘‘solemn trust obligation
and responsibility to native Hawaiians’’
by providing additional protection and
recognition of Native Hawaiian
interests—a key example of political
action in the community. Haw. Rev.
Stat. 10–1(a) (2016). Those amendments
established the Office of Hawaiian
Affairs (OHA), which administers trust
monies to benefit the Native Hawaiian
community and generally promotes
Native Hawaiian affairs, Hawaii Const.
art. XII, secs. 4–6, and provided for
recognition of certain traditional and
customary legal rights of Native
Hawaiians, id. art. XII, sec. 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 active engagement within
the community on issues of selfdetermination and preservation of
Native Hawaiian culture and traditions:
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;
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the 1988 Native Hawaiian Sovereignty
Conference, where a resolution on selfgovernance was adopted; the Hawaiian
Sovereignty Elections Council, a Statefunded entity, and its successor, Ha
Hawaii, a nonprofit 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 selfdetermination; 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 (2016). 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 also Native Hawaiian Law: A
Treatise at 779–1165, encouraged
development of traditional justice
programs, including a method of
alternative dispute resolution,
‘‘hooponopono,’’ that the Native
Hawaiian Bar Association endorses. 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 selfdetermination 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 unique history of
Hawaii and the history of separate
Congressional enactments regarding the
two groups. Kahawaiolaa v. Norton, 386
F.3d 1271, 1283 (9th Cir. 2004), cert.
denied, 545 U.S. 1114 (2005). 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 believed it appropriate for the
Department to apply its expertise to
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‘‘determine whether native Hawaiians,
or some native Hawaiian groups, could
be acknowledged on a government-togovernment basis.’’ 1 Id.
In recent years, Congress considered
legislation to reorganize a single Native
Hawaiian governing entity and
reestablish a formal government-togovernment 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, selfdetermination, and economic selfsufficiency 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 selfgovernment 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
1 The Department carefully reviewed the
Kahawaiolaa briefs, in which the United States
suggested that Native Hawaiians have not been
recognized by Congress as an Indian tribe. That
suggestion, however, must be read in the context of
the Kahawaiolaa litigation, which challenged the
validity of regulations determining which Native
groups should be recognized as tribes eligible for
Federal Indian programs, services, and benefits and
as having a formal government-to-government
relationship with the United States. See 25 CFR
83.2 (2004). As noted throughout this rule, Congress
has not recognized Native Hawaiians as eligible for
general Federal Indian programs, services, and
benefits; and while Congress has provided separate
programs, services, and benefits for Native
Hawaiians in the exercise of its constitutional
authority with respect to indigenous communities
in the United States, Congress has not itself
established a formal government-to-government
relationship with the Native Hawaiian community.
That matter has been left to the Executive or for
later action by Congress itself. So, in context, the
suggestion in the United States’ Kahawaiolaa briefs
is not inconsistent with the positions taken in this
rulemaking. To the extent that other positions taken
in this rulemaking may be seen as inconsistent with
statements or positions of the United States in the
Kahawaiolaa litigation, for the reasons stated in the
proposed rule, and in this final rule, the views in
this rulemaking reflect the Department’s policy.
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States or with the State of Hawaii. The
bills required protection of the civil
rights and liberties of Natives and nonNatives 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 legal
relationship with the Native Hawaiian
people’’ and established a process for
‘‘the Native Hawaiian people to exercise
their inherent rights as a distinct,
indigenous, native community to
reorganize a single unified Native
Hawaiian governing entity.’’ Some in
Congress, however, expressed a
preference for allowing the Native
Hawaiian community to petition
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).
In 2011, in Act 195, the State of
Hawaii 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 established the Native
Hawaiian Roll Commission to oversee
the process for compiling the roll of
qualified Native Hawaiians. The
Commission accepted registrations from
individuals subject to verification of
their Native Hawaiian ancestry while
also ‘‘pre-certifying’’ for the roll
individuals who were listed on any
registry of Native Hawaiians maintained
by OHA. Haw. Rev. Stat. 10H–
3(a)(2)(A)(iii) (2015). On July 10, 2015,
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the Commission certified an initial list
of more than 95,000 qualified Native
Hawaiians, as defined by Haw. Rev.
Stat. 10H–3 (2015). In addition to the
initial list, the Commission certified
supplemental lists of qualified Native
Hawaiians and published a compilation
of the certified lists online—the
Kanaiolowalu. See Kanaiolowalu,
Certified List (Oct. 19, 2015), https://
www.kanaiolowalu.org/list (last visited
Apr. 19, 2016).
In December 2014, a private nonprofit
organization known as Nai Aupuni
formed to support efforts to achieve
Native Hawaiian self-determination. It
originally planned to hold a monthlong, vote-by-mail election of delegates
to an Aha, a convention to consider
paths for Native Hawaiian selfgovernance. Nai Aupuni limited voters
and delegates to Native Hawaiians and
it relied on the roll compiled by the
Commission to identify Native
Hawaiians. Delegate voting was to occur
throughout the month of November
2015, but a lawsuit by six individuals
seeking to halt the election delayed
those efforts. See Akina v. Hawaii, 141
F. Supp. 3d 1106, 1111 (D. Haw. 2015).
Plaintiffs alleged, among other things,
violations of the Fifteenth Amendment
to the U.S. Constitution and the Voting
Rights Act. The district court ruled that
plaintiffs did not demonstrate a
likelihood of success on their claims
and denied their motion for a
preliminary injunction. The district
court also found that the scheduled
election was a private election ‘‘for
delegates to a private convention,
among a community of indigenous
people for purposes of exploring selfdetermination, that will not—and
cannot—result in any federal, state, or
local laws or obligations by itself.’’ The
court found it was ‘‘not a state election.’’
Plaintiffs appealed to the Ninth Circuit.
During the appeal, Nai Aupuni mailed
the delegate ballots to certified voters
and the voting for delegates began.
Plaintiffs filed an urgent motion for an
injunction pending appeal in the Ninth
Circuit, which was denied. Plaintiffs
then filed an emergency application for
an injunction pending appellate review
in the U.S. Supreme Court on November
23, 2015. Justice Kennedy enjoined the
counting of ballots on November 27,
2015. Five days later, the Supreme
Court, by a vote of 5 to 4, granted
plaintiffs’ request and enjoined the
counting of ballots and the certifying of
winners, pending the final disposition
of the appeal in the Ninth Circuit. See
Akina v. Hawaii, 136 S. Ct. 581 (2015).
These orders were not accompanied by
opinions. On August 29, 2016, the Ninth
Circuit dismissed plaintiffs’ appeal of
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the preliminary-injunction order as
moot. Akina v. Hawaii, No. 15–17134,
2016 WL 4501686 (9th Cir. Aug. 29,
2016). The litigation remained pending
in Federal district court at the time this
final rule was issued.
After the Supreme Court enjoined the
counting of the ballots, Nai Aupuni,
citing concerns about the potential for
years of delay in litigation, terminated
the election and chose to never count
the votes. Instead, Nai Aupuni invited
all registered candidates participating in
the election to participate in the Aha.
During February 2016, nearly 130
Native Hawaiians took part in the Aha.
On February 26, 2016, by a vote of 88to-30 with one abstention (not all
participants were present to vote), the
Aha delegates voted to adopt a
constitution. See Press Release, Native
Hawaiian Constitution Adopted (Feb.
26, 2016); Constitution of the Native
Hawaiian Nation (2016), available at
https://www.aha2016.com (last visited
Apr. 19, 2016). Aha participants also
adopted a declaration that lays out a
history of Native Hawaiian selfgovernance ‘‘so the world may know
and come to understand our cause
towards self-determination through selfgovernance.’’ Declaration of the
Sovereignty of the Native Hawaiian
Nation: An Offering of the Aha,
available at https://www.aha2016.com
(last visited Apr. 19, 2016).
The development of the roll of
qualified Native Hawaiians, the effort to
elect delegates to an Aha, and the
adoption of a constitution by the Aha
participants are all events independent
of this rule. The purpose of the rule is
to provide a process and criteria for
reestablishing a formal government-togovernment relationship that would
enable a reorganized Native Hawaiian
government to represent the Native
Hawaiian community and conduct
formal government-to-government
relations with the United States under
the Constitution and applicable Federal
law. These events, however, provide
context and significant evidence of the
community’s interest in reorganizing
and reestablishing the formal
government-to-government relationship
that warrants the Secretary proceeding
with this rulemaking process.
(III) Overview of Final Rule
The final rule reflects the totality of
the comments from the Advance Notice
of Proposed Rulemaking (ANPRM) and
the Notice of Proposed Rulemaking
(NPRM or proposed rule) stages of the
rulemaking process in which
commenters urged the Department to
promulgate a rule announcing a
procedure and criteria by which the
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Secretary could reestablish a formal
government-to-government relationship
with the Native Hawaiian community.
The Department will rely on this final
rule as the sole administrative avenue
for doing so with the Native Hawaiian
community.
In accordance with the wishes of the
Native Hawaiian community as
expressed in the comments on the
ANPRM and the NPRM, the final rule
does 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 the request satisfies
the rule’s requirements, enabling the
Secretary to reestablish a formal
government-to-government relationship
with the 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 governmentto-government relationship with the
United States. The process established
by this rule is optional, and Federal
action would occur only upon an
express formal request from the
reorganized Native Hawaiian
government.
Existing Federal Legal Framework. In
adopting this rulemaking, the
Department must adhere to the legal
framework, discussed above, that
Congress already established 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 within the scope of
the Federal Government’s powers over
Native American affairs and with which
the United States has already
acknowledged or recognized an ongoing
special political and trust relationship.
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
‘‘[t]hrough the enactment of the
Hawaiian Homes Commission Act,
1920, Congress affirmed the special
relationship between the United States
and the Native Hawaiians,’’ 20 U.S.C.
7512(8); see also 42 U.S.C. 11701(13),
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(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). 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.
Authority.2 The authority to issue this
rule is vested in the Secretary by 25
U.S.C. 2, 9, 479a, 479a–1; 43 U.S.C.
1457; Act of January 23, 2004, sec. 148,
118 Stat. 445; and 5 U.S.C. 301. See also
United States v. Holliday, 70 U.S. 407,
419 (1865) (‘‘In reference to all matters
of [tribal status], it is the rule of this
court to follow the action of the
executive and other political
departments of the government, whose
more special duty it is to determine
such affairs.’’).
Congress has plenary power with
respect to Indian affairs. See Michigan v.
Bay Mills Indian Cmty., 134 S. Ct. 2024,
2030 (2014); United States v. Lara, 541
U.S. 193, 200 (2004); Morton v. Mancari,
417 U.S. 535, 551–52 (1974). Congress’s
plenary power over Indian affairs flows
in part from the Indian Commerce
Clause, which authorizes Congress to
‘‘regulate Commerce with . . . Indian
Tribes.’’ 3 U.S. Const. art. I, sec. 8, cl. 3.
2 Effective September 1, 2016, the U.S. House of
Representatives’ Office of the Law Revision Counsel
reclassified certain statutory provisions in Title 25
cited in the proposed rule. Because the reclassified
version of Title 25 is not widely available in printed
form as of the date of this publication, the
Department retained the statutory citations
referenced in the proposed rule. The new citations
and more information about the reclassification of
Title 25 can be found at: https://uscode.house.gov/
editorialreclassification/t25/ (last visited
Sept. 14, 2016).
3 ‘‘The term ‘‘Indian’’ was first applied by
Columbus to the native people of the New World
based on the mistaken belief that he had found a
sea route to India. The term has been understood
ever since to refer to the indigenous people who
inhabited the New World before the arrival of the
first Europeans. See Worcester v. Georgia, 31 U.S.
(6 Pet.) 515, 544 (1832) (referring to Indians as
‘‘those already in possession [of the land], either as
aboriginal occupants, or as occupants by virtue of
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‘‘[N]ot only does the Constitution
expressly authorize Congress to regulate
commerce with the Indian tribes, but
long continued legislative and executive
usage and an unbroken current of
judicial decisions have attributed to the
United States . . . the power and the
duty of exercising a fostering care and
protection over all dependent Indian
communities.’’ United States v.
Sandoval, 231 U.S. 28, 45–46 (1913).
Congress’s authority to aid Indian
communities, moreover, extends to all
such communities within the borders of
the United States, ‘‘whether within its
original territory or territory
subsequently acquired.’’ Sandoval, 231
U.S. at 46. Thus, despite differences in
language, culture, religion, race, and
community structure, Native people in
the East, Oneida Indian Nation v.
County of Oneida, 414 U.S. 661 (1974),
the Plains, Kansas Indians, 72 U.S. (5
Wall.) 737 (1867), the Southwest,
Sandoval, 231 U.S. at 46, the Pacific
Northwest, Washington v. Yakima
Indian Nation, 439 U.S. 463 (1979), and
Alaska, Organized Village of Kake v.
Egan, 369 U.S. 60 (1962), all fall within
Congress’s Indian affairs power. See
Solicitor’s Opinion, Status of Alaskan
Natives, 53 I.D. 593, 605 (Decisions of
the Department of the Interior, 1932) (It
is ‘‘clear that no distinction has been or
can be made between the Indians and
other natives of Alaska so far as the laws
and relations of the United States are
concerned whether the Eskimos and
other natives are of Indian origin or not
as they are all wards of the Nation, and
their status is in material respects
similar to that of the Indians.’’); Felix
Cohen’s Handbook of Federal Indian
Law, at 401, 403 (1942 ed.) (Constitution
is source of authority over Alaska
Natives). So too, Congress’s Indian
affairs power under the Constitution
extends to the Native Hawaiian
community. See Organic Act (applying
Constitution to Territory of Hawaii and
declaring all persons who were citizens
of the Republic of Hawaii on August 12,
a discovery made before the memory of man’’);
Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, 572–
74 (1823) (referring to Indians as ‘‘original
inhabitants’’ or ‘‘natives’’ who occupied the New
World before discovery by ‘‘the great nations of
Europe’’).
At the time of the Framers and in the nineteenth
century, the terms ‘‘Indian,’’ ‘‘Indian affairs,’’ and
‘‘Indian tribes’’ were used to refer to the indigenous
peoples not only of the Americas but also of the
Caribbean and areas of the Pacific extending to
Australia, New Zealand, and the Philippines. See,
e.g., W. Dampier, A New Voyage Around the World
(1697); Joseph Banks, The Endeavor Journal of Sir
Joseph Banks (1770); William Bligh, Narrative of
the Mutiny on the Bounty (1790); A.F. Gardiner,
Friend of Australia (1830); James Cook, A Voyage
to the Pacific Ocean (1784) (referring to Native
Hawaiians).
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1898 citizens of the United States); see
also Nationality Act of 1940, 54 Stat.
1137, 1138 (making every ‘‘person born
in the United States to a member of an
Indian, Eskimo, Aleutian, or other
aboriginal tribe’’ a citizen).
Exercising this plenary power over
Indian affairs, Congress delegated to the
President the authority to ‘‘prescribe
such regulations as he may think fit for
carrying into effect the various
provisions of any act relating to Indian
affairs, and for the settlement of the
accounts of Indian affairs.’’ 25 U.S.C. 9.
Congress charged the Secretary with
directing, consistent with ‘‘such
regulations as the President may
prescribe,’’ the ‘‘management of all
Indian affairs and of all matters arising
out of Indian relations.’’ 25 U.S.C. 2.
And Congress expressly authorized the
Secretary to supervise ‘‘public business
relating to . . . Indians,’’ 43 U.S.C.
1457(10), and to ‘‘prescribe regulations
for the government of [the Department
of the Interior] . . . [and for] the
distribution and performance of its
business,’’ 5 U.S.C. 301.
Congress recognized and ratified its
delegation of authority to the Secretary
to recognize self-governing Native
American groups in the Federally
Recognized Indian Tribe List Act of
1994, 108 Stat. 4791 (the List Act). See
25 U.S.C. 479a & note (recognizing the
Secretary’s authority to acknowledge
that Native American groups ‘‘exist as
an Indian tribe’’). The Congressional
findings included in the List Act
confirm the ways in which an Indian
tribe gains acknowledgment or
recognition from the United States,
including that ‘‘Indian tribes presently
may be recognized by Act of Congress
. . . .’’ 25 U.S.C. 479a note. Here,
Congress recognized Native Hawaiians
through more than 150 separate statutes.
At the same time, the language of the
List Act’s definition of the term ‘‘Indian
tribe’’ is broad and encompasses the
Native Hawaiian community. See 25
U.S.C. 479a(2).4
Over many decades and more than
150 statutes, Congress exercised its
plenary power over Indian affairs to
recognize that the Native Hawaiian
community exists as an Indian tribe
within the meaning of the Constitution.
Through these statutes, the United
States maintains a special political and
trust relationship with the Native
4 As discussed more fully in Section (IV)(C),
Native Hawaiians would not be added to the list
that the Secretary is required to publish under sec.
104 of the List Act, 25 U.S.C. 479a–1(a), because
Congress provides a separate suite of programs and
services targeted directly to Native Hawaiians and
not through programs broadly applicable to Indians
in the continental United States.
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Hawaiian community. Congress also
charged the Secretary with the duty to
‘‘effectuate and implement the special
legal relationship between the Native
Hawaiian people and the United
States.’’ Act of January 23, 2004, sec.
148, 118 Stat. 445. The Secretary’s
promulgation of a process and criteria
by which the United States may
reestablish a formal government-togovernment relationship with a
reorganized Native Hawaiian
government whose request satisfies the
rule’s requirements simply
acknowledges and implements what
Congress already made clear on more
than 150 occasions, stretching back
nearly a century. 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;
HHCA, 42 Stat. 108; Admission Act, 73
Stat. 4; Apology Resolution, 107 Stat.
1510; HHLRA, 109 Stat. 357 (1995).
Reestablishment of a formal
government-to-government relationship
would allow the United States to more
effectively implement the special
political and trust relationship that
Congress established between the
United States and the Native Hawaiian
community and administer the Federal
programs, services, and benefits that
Congress created specifically for the
Native Hawaiian community. As
discussed above, Native Hawaiians are
indigenous people of the United States
who have retained inherent sovereignty
and with whom Congress established a
special political and trust relationship
through a course of dealings over many
decades. Congress repeatedly regulated
the affairs of the Native Hawaiian
community as it has with other Indian
tribes, consistent with its authority
under the Constitution. Hence,
§ 50.44(a) of the final rule states that
upon reestablishment of the formal
government-to-government relationship,
the Native Hawaiian Governing Entity
will have the same formal governmentto-government relationship under the
United States Constitution as the formal
government-to-government relationship
between the United States and a
federally-recognized tribe in the
continental United States (subject to the
limitation on programs, services, and
benefits appearing in § 50.44(d)), will
have the same inherent sovereign
governmental authorities, and will be
subject to the same plenary authority of
Congress, see § 50.44(b).
Definitions. Congress employs two
definitions of ‘‘Native Hawaiians,’’
which the rule labels as ‘‘HHCA Native
Hawaiians’’ and ‘‘Native Hawaiians.’’
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The former is a subset of the latter, so
every HHCA Native Hawaiian is by
definition a Native Hawaiian. But the
converse is not true: Some Native
Hawaiians are not HHCA Native
Hawaiians.
As used in the rule, the term ‘‘HHCA
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, 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. Satisfying this definition
generally requires that documentation
demonstrating eligibility under HHCA
sec. 201(a)(7) be available, such as
official Department of Hawaiian Home
Lands (DHHL) records or other State
records. See response to comment
(1)(c)(1) below for further discussion.
The availability of such documentation
may be attested to by a sworn statement
which, if false, is punishable under
Federal or state law. See, e.g., Haw. Rev.
Stat. 710–1062 (2016). Alternatively, a
sworn statement of a close family
relative who is an HHCA Native
Hawaiian may be used to establish that
a person meets the HHCA’s definition.
The term ‘‘Native Hawaiian,’’ as used
in the rule, means an individual who is
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(a)(6); 25 U.S.C.
3001(10); 25 U.S.C. 4221(9); 42 U.S.C.
254s(c); 42 U.S.C. 11711(3). Satisfying
this definition generally requires that
records documenting generation-bygeneration descent be available, such as
enumeration on a roll or list 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, or
through current or prior enrollment as a
Native Hawaiian in a Kamehameha
Schools program. The availability of
such documentation may be attested to
by sworn statement which, if false, is
punishable under state law. A Native
Hawaiian may also sponsor a close
family relative through a sworn
statement attesting that the relative
meets the definition of Native Hawaiian.
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 Native
Hawaiian and by definition a ‘‘Native
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Hawaiian’’ as that term is used in this
rule.
In keeping with the framework
created by Congress, the rule requires
that, to reestablish a formal governmentto-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 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 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. Recognizing that the
community may seek further
explanation on the technical aspects of
the rule, including the ratification
process explained below and the use of
sworn statements explained in Section
(IV)(B), the Department will provide
technical assistance at the request of the
Native Hawaiian community.
Form of ratification. The rule does not
fix the form of the ratification
referendum. For example, 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 adopted through other means.
The ratification referendum by the
Native Hawaiian community need not
be the same election in which the
Native Hawaiian community initially
adopts a governing document. The
referendum could be conducted
simultaneously or separately for both
HHCA Native Hawaiians and Native
Hawaiians. The ratification process
must, however, provide separate vote
tallies for (a) HHCA Native Hawaiian
voters and (b) all Native Hawaiian
voters.
Thresholds indicating broad-based
community support. To ensure that the
ratification vote reflects the views of the
whole Native Hawaiian community, the
turnout in the ratification referendum
must be sufficiently large to
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demonstrate broad-based community
support. Accordingly, the rule focuses
on the number who vote in favor of the
governing document rather than the
number of voters who participate in the
ratification referendum. Specifically, the
rule requires a minimum of 30,000
affirmative votes from Native Hawaiian
voters, including a minimum of 9,000
affirmative votes from HHCA Native
Hawaiians, as an objective measure to
ensure that the vote represents the
views of the Native Hawaiian
community as a whole. The Secretary
will only evaluate a request under this
rule that meets this minimum broadbased community participation
threshold.
In addition to this minimum
affirmative-vote threshold, the rule
creates a presumption of broad-based
community support if the affirmative
votes exceed 50,000, including
affirmative votes from at least 15,000
HHCA Native Hawaiians. If a request
meets these thresholds (50,000 and
15,000), the Secretary would be well
justified in finding broad-based
community support among Native
Hawaiians.
Explanation of data used to support
thresholds. There is no existing
applicable numerical standard for
measuring broad-based community
support. The Department accordingly
applied its expertise to develop such a
standard based on available data. For
reasons explained in the proposed rule
(see 80 FR at 59124–25) and in this
rule’s Responses to Comments (Section
(IV)(B)), the Department took a range of
evidence into account, including actual
data on voter turnout in the State of
Hawaii, which indicates that the above
thresholds are appropriate and
achievable in practice. Based on the
volume of comments received on the
issue during the proposed-rule stage, the
Department determined there is a need
for further explanation about how it
calculated the range of voter turnout.
Described below is one of the reasoned
methods the Department used to
calculate the numerical thresholds for
community support as well as the
ranges for affirmative votes. The
following method illustrates one of the
many reasonable methods for
calculating the required thresholds.
Summary
The Department first reviewed Native
Hawaiian voter turnout numbers in
Hawaii for national and State elections
and determined those numbers indicate
broad-based participation within Hawaii
in those elections. Actual voter data
from 1998 supports this conclusion.
There were just over 100,000 Native
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71287
Hawaiian registered voters, nearly
65,000 of whom cast ballots in that offyear (i.e., non-presidential) Federal
election. That same year, the total
number of registered voters in Hawaii
(Native Hawaiian and non-Native
Hawaiian) was about 601,000, and about
413,000 of those voters 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. The Department concludes
that such turnouts are a valid measure
of broad-based participation in
elections.
Second, to determine the turnout
numbers today that indicate broadbased participation by the Native
Hawaiian community, the Department
estimated the percentage of Native
Hawaiian voters within that general
voter turnout. This estimate is based on
actual voter data from 1988 to 1998 (see
table below). The Department then
adjusted that estimate to account for the
growth in the number of Native
Hawaiians as a percentage of the general
population of Hawaii, and projected the
percentage of Native Hawaiians within
the reported voter turnout in recent
elections in Hawaii, discussed below in
more detail.
Third, the Department adjusted the
estimate upward to account for out-ofState Native Hawaiian voters. These
calculations result in a range of the
number of anticipated Native Hawaiian
voters, between 60,000 and 100,000,
which the Department determined
indicates broad-based community
participation. The minimum required
number of affirmative votes by Native
Hawaiians is based on the low-end
figure of this range, i.e., 30,000.
Finally, the Department estimated the
number of affirmative votes required of
HHCA Native Hawaiians to demonstrate
their broad-based support as 30 percent
of the Native Hawaiian threshold, since
HHCA Native Hawaiian adults are
approximately 30 percent of the Native
Hawaiian adult population, as discussed
in more detail below.
Supporting Explanation
Different approaches result in
different estimates based on the broad
range of evidence that the Department
examined. The Department is reassured,
however, by the fact that different
methods produced roughly similar
estimates. Weighing the available data,
and applying different methods to
analyze those data, the Department
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concluded that it is reasonable to expect
that a Native Hawaiian ratification
referendum would have a turnout
somewhere in the range between 60,000
and 100,000, although a figure outside
that range is possible. The Department
concludes that turnout within this range
demonstrates broad-based participation.
Of course, turnout in a Native
Hawaiian ratification referendum could
diverge from Native Hawaiian turnout
in a regular general election; but the
year-to-year consistency of turnout
figures from regular general elections in
Hawaii suggests strong patterns that are
likely to be replicated in a Native
Hawaiian ratification referendum.
Generally, more recent data are
preferable to older data when projecting
future turnout. If Native Hawaiian voterturnout data for the most recent
elections existed, the Department would
have considered it. Because such data
are not available, however, the
Overall voter
turnout (native
Hawaiian and
non-native
Hawaiian,
combined) *
Year
1988
1990
1992
1994
1996
1998
2000
2002
2004
2006
2008
2010
2012
2014
......................................................................
......................................................................
......................................................................
......................................................................
......................................................................
......................................................................
......................................................................
......................................................................
......................................................................
......................................................................
......................................................................
......................................................................
......................................................................
......................................................................
368,567
354,152
382,882
377,011
370,230
412,520
371,379
385,462
431,662
348,988
456,064
385,464
437,159
369,642
Department analyzed the last six
elections in which separate voterturnout figures specifically for Native
Hawaiians are available (1988 to 1998),
as well as overall (Native Hawaiian and
non-Native Hawaiian) voter-turnout
figures for 1988 to 2014, the date of the
most recent biennial general election.
The figures are reproduced in the
following table:
Native Hawaiian voter turnout **
48,238 ..................................................................................
49,231 ..................................................................................
51,029 ..................................................................................
55,424 ..................................................................................
52,102 ..................................................................................
64,806 ..................................................................................
Unknown.
Unknown.
Unknown.
Unknown.
Unknown.
Unknown.
Unknown.
Unknown.
Native
Hawaiian
voters as % of
voter turnout ***
13.09
13.90
13.33
14.70
14.07
15.71
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* Data from the Hawaii Office of Elections, which recorded on its Web site the actual voter-turnout figures from presidential-year (e.g., 2012,
2008, 2004) and off-year or gubernatorial (e.g., 2014, 2010, 2006) general elections in Hawaii.
** For biennial general elections prior to the Supreme Court’s decision in Rice v. Cayetano, 528 U.S. 495 (2000), the Office of Elections’ Web
site shows voter-turnout figures for the State as a whole and also specifically for Native Hawaiian voters (because only Native Hawaiian voters
were qualified to vote in OHA elections prior to 2000). Starting in 2000, the same source shows voter-turnout figures only for the State as a
whole, that is, for the undifferentiated combination of Native Hawaiians and non-Native Hawaiians.
*** Native Hawaiian voters average 14.13 percent of the voter turnout in these six elections.
These figures show that overall
turnout generally increased during the
1988-to-2014 period, although not
always smoothly, and that Native
Hawaiian turnout was doing the same
during the 1988-to-1998 period, but at a
somewhat faster rate than the overall
turnout was increasing. These trends are
consistent with census data showing
Hawaii’s population increasing and
showing Hawaii’s Native Hawaiian
population increasing more rapidly than
its non-Native population.
As the table above shows, overall
turnout for this entire period (1988 to
2014) ranged from a low of 348,988 to
a high of 456,064. The Native Hawaiian
percentage of the overall turnout, for the
years for which the table contains such
data (1988 to 1998), ranged from a low
of 13.1 percent in 1988 (48,238 divided
by 368,567) to a high of 15.7 percent in
1998 (64,806 divided by 412,520). Since
1998, the fraction of the State’s
population that is Native Hawaiian grew
by about 14.4 percent (this figure is
derived by extrapolating from data
showing Hawaii’s Native Hawaiian
population and Hawaii’s total
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population in the 2000 and 2010
Federal decennial censuses).
Applying the population growth
percentage of 14.4 to the voter-turnout
numbers and then applying the Native
Hawaiian voter-turnout percentage
figures to those adjusted numbers
results in a potential turnout of in-State
Native Hawaiians that ranges from a low
of about 52,300 (1.144 × 348,988 ×
0.131= 52,300) to a high of about 81,913
(1.144 × 456,064 × 0.157 = 81,913). The
Department concludes that this voterturnout range would reflect broad-based
community participation of in-State
Native Hawaiians.
The rule also accounts for Native
Hawaiians residing out-of-State who can
participate in the ratification
referendum. The out-of-State Native
Hawaiian population is roughly
comparable in size to the in-State Native
Hawaiian population. Many Native
Hawaiians living outside Hawaii remain
strongly engaged with the Native
Hawaiian community, as reflected in the
substantial number of comments on this
rule from Native Hawaiians residing
out-of-State and by many Native
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Hawaiian civic organizations in the
continental United States.
Notwithstanding the number of
comments, the Department concludes
that the rate of participation of this
population in a nation-building process
is likely to be considerably lower than
that of in-State Native Hawaiians.
One indicator of lower out-of-State
Native Hawaiian voter turnout is the
relatively low number of out-of-State
Native Hawaiians on the Native
Hawaiian Roll Commission’s (NHRC’s)
Kanaiolowalu roll. Although the precise
number of out-of-State Native
Hawaiians on the roll is not public
information, delegates were initially
apportioned based on their percentage
participation in the roll. Seven of the 40
delegates were apportioned to out-ofState Native Hawaiians, indicating that
approximately 17.5 percent of the
persons on the roll are from out-of-State,
even though approximately half of all
Native Hawaiians reside out-of-State.
Based on these figures, the Department
projected a significantly lower
participation rate for out-of-State Native
Hawaiians, and adjusted its in-State
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voter turnout figures upward by
approximately 20-percent to reflect
anticipated participation by out-of-State
Native Hawaiians. Since the seven outof-State delegates are equivalent to 21.2
percent of the 33 in-State delegates, the
20-percent adjustment factor is
generally consistent with available
information about the likely rate of
engagement of the out-of-State Native
Hawaiian population (33 times 120
percent equals approximately 40
delegates total).
Some data would point to a lower
adjustment factor and some would point
to a higher factor. For example, in 1996
when the Hawaiian Sovereignty
Elections Council (HSEC) conducted its
‘‘Native Hawaiian Vote’’ election, which
asked Native Hawaiians whether they
wished to elect delegates to propose a
Native Hawaiian government, only 3.2
percent of the more than 30,000
returned ballots came from out of State.
The Department did not use this low
percentage, however, as it appears to be
attributable, at least in part, to the fact
that the HSEC’s list of potential voters
contained relatively few Native
Hawaiians living outside Hawaii. See
Hawaiian Sovereignty Elections
Council, Final Report 28 (Dec. 1996).
Census data is another source of
information about the potential
participation in, or affiliation with, the
Native Hawaiian community is the
distribution of speakers of the Hawaiian
language. Census data from 2009 to
2013 indicate that about 29 percent of
U.S. residents who speak the Hawaiian
language (7,595 out of 26,205) resided
out-of-State. Although use of native
language indicates strong ties to the
community, the Department gave the
language data less weight than
information on actual participation in
voting or other political or nationbuilding processes, because official
efforts in Hawaii to suppress the
Hawaiian language in the early
twentieth century artificially alters the
significance of this distribution.
In sum, the Department concludes
that 20 percent is a reasonable
adjustment factor given the limits of
available data and the uncertainties
with respect to participation of the outof-State population. Applying that 20percent adjustment factor for out-ofState voters to the in-State turnout
estimate (52,300 to 81,913) results in a
total range (in-State plus out-of-State)
from about 62,760 to about 98,296. This
range is an estimate, based on one
specific methodology. This range—like
the ranges produced by many other
methodologies, employing a broad set of
data—comports with the Department’s
conclusion that it is reasonable to
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expect that a Native Hawaiian
ratification referendum would have a
turnout somewhere in the range
between 60,000 and 100,000, although a
figure outside that range is possible.
A majority vote is necessary to
support a governing document. With
voter turnout of 60,000, a majority
would require over 30,000 affirmative
votes; with a voter turnout of 100,000,
a majority would require over 50,000
affirmative votes. On this basis, the
Department determined that 30,000
affirmative votes (where they represent
a majority of those cast) is the rule’s
minimum threshold for potentially
showing broad-based community
support, and 50,000 affirmative votes
(where they represent a majority of
those cast) creates a presumption of
such support.
Finally, for the HHCA Native
Hawaiians, each figure in the rule is
exactly 30-percent of the equivalent
figure for Native Hawaiians. As
explained in detail below, the
Department’s best estimate is that adult
HHCA Native Hawaiians comprise
approximately 30 percent of adult
Native Hawaiians. This estimate is
based not on DHHL records, but on the
Department’s best estimate of the
respective populations of the two
groups.
The derivation of this 30-percent
figure requires some background. Justice
Breyer’s concurring opinion in Rice v.
Cayetano, 528 U.S. 495, 526 (2000),
cited the Native Hawaiian Data Book,
which indicated 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 rule’s definition of an
HHCA Native Hawaiian. See Native
Hawaiian Data Book (2015), 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
Native Hawaiians with at least 50
percent Native Hawaiian ancestry
constituted about 20.0 percent of Native
Hawaiians born between 1980 and 1984,
about 29.5 percent of Native Hawaiians
born between 1965 and 1979, about 42.4
percent of Native Hawaiians born
between 1950 and 1964, and about 56.7percent of Native Hawaiians 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 group born between 1965 and
1979. Therefore, the current population
of HHCA Native Hawaiian voters is
estimated to be about 30 percent as large
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as the current population of Native
Hawaiian voters.
The conclusion that the median voter
in an election held in 2016 (and for the
next several years) is likely to fall into
the 1965-to-1979 group is bolstered by
data from the Hawaiian Sovereignty
Elections Council’s 1996 ‘‘Native
Hawaiian Vote.’’ In that election, the
median voters were in their low- to mid40s, roughly the equivalent of a voter
today who was born in 1971 or 1972.
See Hawaiian Sovereignty Elections
Council, Final Report 28 (Dec. 1996).
Although the data from DHHL records
are of limited relevance here, the rule’s
9,000- and 15,000-affirmative-vote
thresholds appear to be in harmony
with key DHHL data. According to the
2014 DHHL Annual Report there were
9,838 leases of Hawaiian home lands as
of June 30, 2014, of which 8,329 were
residential (the remaining leases were
for either agricultural or pastoral land).
Therefore, it is reasonable to assume
there are at least 8,329 families living in
homestead communities throughout
Hawaii, in addition to the nearly 28,000
individual applicants awaiting a
homestead lease award. And a
significant number of HHCA Native
Hawaiians likely are neither living in
homestead communities nor awaiting a
homestead lease award. The DHHL data
therefore are consistent with the
Department’s conclusion that it is
reasonable to expect that a ratification
referendum would have a turnout of
HHCA Native Hawaiians somewhere in
the range between 18,000 and 30,000,
although a figure outside that range is
possible. And to win a majority vote in
that range would require over 9,000 (for
a turnout of 18,000) to over 15,000 (for
a turnout of 30,000) affirmative votes
from HHCA Native Hawaiians. On this
basis, the Department determined that
9,000 affirmative votes from HHCA
Native Hawaiians (where they represent
a majority of those cast) is the rule’s
minimum threshold for potentially
showing broad-based community
support and 15,000 affirmative votes
from HHCA Native Hawaiians (where
they represent a majority of those cast)
creates a presumption of such support.
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 rule does, however, set forth certain
minimum requirements for
reestablishing a formal government-togovernment relationship with the
United States. The constitution or other
governing document of the Native
Hawaiian government must provide for
‘‘periodic elections for government
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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 accord 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, 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 concerns that a subsequent
amendment to a governing document
could impair the safeguards of § 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 rule therefore provides only
minimal guidance about what the
governing document must say with
regard to membership criteria. HHCA
Native Hawaiians must be included,
non-Natives must be excluded, and
membership must be voluntary and
relinquishable. But the community itself
would otherwise be free to decide its
membership criteria.
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. The Native Hawaiian
community will decide what form of
government to adopt, and may provide
for political subdivisions if it so
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chooses. Such political subdivisions
could be defined by island, by
geographic districts, by historic
circumstances, or otherwise in a fair and
reasonable manner. Allowing for
political subdivisions is consistent with
principles of self-determination
applicable to Native groups, and
provides some flexibility should Native
Hawaiians wish to provide for
subdivisions with whatever degree of
autonomy the community determines is
appropriate, although only a single
formal government-to-government
relationship with the United States
would be established.
The Formal Government-toGovernment Relationship. Statutes such
as the National Historic Preservation
Act of 1966, the Native American
Graves Protection and Repatriation Act,
and the HHLRA established specific
processes for interaction between the
Native Hawaiian community and the
U.S. government. The rule provides a
process and criteria for reestablishing a
‘‘formal government-to-government
relationship,’’ which would, among
other benefits, enable the Native
Hawaiian community to work directly
with the Federal Government to
implement additional appropriate
Native Hawaiian programs. The rule
requires that the request to reestablish a
formal government-to-government
relationship reflect the will of the
Native Hawaiian people through broadbased community support.
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 from
the authorized officer of the governing
body 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. Because Congress has already
acknowledged or recognized the Native
Hawaiian community, the Secretary’s
determination in this part is limited to
the process for reestablishing a formal
government-to-government relationship
with the Native Hawaiian Governing
Entity. Additional processes are not
required.
Other Provisions. The rule also
contains provisions governing technical
assistance, clarifying the
implementation of the formal
government-to-government relationship,
and addressing related issues. The rule
explains that the formal government-togovernment relationship with the Native
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Hawaiian Governing Entity would have
virtually the same legal basis and
structure as the formal government-togovernment relationship between the
United States and federally-recognized
tribes in the continental United States.
Accordingly, the government-togovernment 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 federallyrecognized tribes in the continental
United States are subject and would
remain ineligible for Federal Indian
programs, services, and benefits
provided to Indian tribes in the
continental United States and their
members (including funding from the
Bureau of Indian Affairs and the Indian
Health Service) unless Congress
expressly declared otherwise.
The rule also clarifies that neither this
rulemaking nor granting a request
submitted under the 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 does not affect the title,
jurisdiction, or status of Federal lands
and property in Hawaii. This provision
does not affect lands owned by the State
or provisions of state law. Cf. Haw. Rev.
Stat. 6K–9 (2016) (‘‘[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.’’). Section 50.44 also explains
that the reestablished government-togovernment 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 if the Secretary
determines to grant the request to
reestablish a formal government-togovernment relationship, the
Department will publish notice in the
Federal Register and the determination
will be effective 30 days after
publication, at which time the formal
government-to-government relationship
will be reestablished. Individuals’
eligibility for any program, service, or
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benefit under any Federal law that was
in effect before the final rule’s effective
date would be unaffected. Likewise, the
rule does not affect Native Hawaiian
rights, protections, privileges,
immunities, and benefits under Article
XII of the Constitution of the State of
Hawaii. This rule would not alter the
sovereign immunity of the United States
or the sovereign immunity of the State
of Hawaii.
(A) How the Rule Works
If a reorganized Native Hawaiian
government decides to seek a formal
government-to-government relationship
with the United States, it must submit
a written request to the Secretary, as
provided in § 50.20. The request must
include a written narrative with
supporting documentation thoroughly
addressing the elements set forth in
§ 50.10. If the Secretary determines that
the request appears to contain these
elements and is consistent with the
affirmative-vote requirements set out in
§ 50.16(g)–(h), the Secretary will publish
notice of receipt of the request in the
Federal Register and post the request to
the Department’s Web site. The public
will have the opportunity to comment
on the request and submit evidence on
whether the request meets the criteria
described in § 50.16, and the requester
may respond to those comments or
evidence. The Secretary will review the
request to determine whether it meets
the criteria described in § 50.16 and is
consistent with this part, along with any
public comments and evidence and the
requester’s responses to those comments
and evidence, to make a decision
granting or denying the request. If the
request is granted, the Secretary’s
decision will take effect 30 days after
publication of a notice in the Federal
Register and the requester will be
identified as the Native Hawaiian
Governing Entity (or the official name
stated in that entity’s governing
document), and a formal government-togovernment relationship will be
reestablished with the Native Hawaiian
Governing Entity as the sole
representative sovereign government of
the Native Hawaiian community.
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(B) Major Changes
After the Department reviewed and
considered public comments, it made
several key clarifications and changes in
this final rule (indicated below in
italics). The final rule:
• Includes the Native Hawaiian
community’s ability to more effectively
exercise its inherent sovereignty and
self-determination as an additional
purpose of the rule (§ 50.1(a));
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• Adds definitions of ‘‘sponsor,’’
‘‘State,’’ and ‘‘sworn statement’’ (§ 50.4);
• Eliminates the U.S. citizenship
requirement (§§ 50.4; 50.12);
• Provides that the Native Hawaiian
community itself must prepare a list of
eligible voters to ratify its governing
document and clarifies that reliance on
existing rolls prepared by others is
optional (§ 50.12(a));
• Clarifies means for individuals to
demonstrate a right to vote in the
ratification referendum, e.g., individuals
may use sworn statements for selfcertification or for sponsoring a close
family relative to demonstrate ‘‘HHCA
Native Hawaiian’’ and ‘‘Native
Hawaiian’’ status for purposes of voting
in the ratification referendum
(§ 50.12(b), (c));
• Increases the comment period for
the public to submit comments and
evidence on a request to reestablish a
government-to-government relationship
to 60 days, provides the Department 20
days after the close of that comment
period to post comments/evidence to its
Web site (§ 50.30), and permits the
requester 60 days to respond to any
such comments/evidence (§ 50.31);
• Limits extensions of any deadline
under §§ 50.30 and 50.31 to a total of 90
days, provided that an extension request
is in writing and sets forth good cause
(§ 50.32);
• Clarifies that if the Secretary is
unable to render a decision on a request
within 120 days following close of the
comment periods, the Secretary will
provide notice to the requester, and
include an explanation of the need for
more time and an estimate of when a
decision will be made (§ 50.40);
• Delays the effective date of the
Secretary’s decision until 30 days after
publication in the Federal Register
(§ 50.42); and
• Further clarifies that
reestablishment of the formal
government-to-government relationship
does not affect the title, jurisdiction, or
status of Federal lands and property in
Hawaii (§ 50.44(f)).
(C) Key Issues
The Department reviewed comments
on a wide range of issues, but received
significant comment on a narrow set of
key issues. These issues are more fully
addressed in responses to comments in
Section (IV)(B) below, but are
summarized here:
• Land into trust. The Department’s
ability to take land into trust for the
Native Hawaiian Governing Entity is
constrained by Federal law. The Indian
Reorganization Act does not apply to
Hawaii and therefore does not authorize
the Department to take land into trust
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for the Native Hawaiian Governing
Entity. And no other current Federal
law authorizes such action. See Section
(IV)(B).
• Indian Gaming Regulatory Act. The
Native Hawaiian Governing Entity may
not conduct gaming activities under the
Indian Gaming Regulatory Act (IGRA).
See Section (IV)(B).
• Federally Recognized Indian Tribe
List Act of 1994 (List Act). The Native
Hawaiian Governing Entity will not
appear on the list of federallyrecognized Indian tribes required under
the List Act. See Section (IV)(C).
(D) Section-by-Section Analysis
This portion of the preamble previews
the final rule and highlights certain
aspects of the rule that may benefit from
additional explanation.
Subpart A—General Provisions,
Sections 50.1, 50.2, 50.3, and 50.4
These provisions establish the
purpose of this rule and explain that if
a Native Hawaiian government requests
a formal government-to-government
relationship with the United States, as
described in § 50.10, such a relationship
will be reestablished only if the request
is granted as described in §§ 50.40 to
50.43. The general provisions also
provide that the United States will
reestablish a formal government-togovernment relationship with only a
single Native Hawaiian government.
These provisions also define key
terms used throughout the rule. Native
Hawaiian community and Native
Hawaiian are defined in terms that
encompass all the Native Hawaiians
recognized by Congress, while HHCA
Native Hawaiian is limited to Native
Hawaiians as defined in the HHCA. The
rule defines Federal Indian programs,
services, and benefits separately from
Federal Native Hawaiian programs,
services, and benefits to parallel
Congress’s approach limiting eligibility
for specific programs, services, and
benefits. Federal Indian programs,
services, and benefits include, but are
not limited to, those provided by the
Bureau of Indian Affairs and the Indian
Health Service, which do not extend to
Native Hawaiians.
Subpart B—Criteria for Reestablishing a
Formal Government-to-Government
Relationship, Sections 50.10, 50.11,
50.12, 50.13, 50.14, 50.15, and 50.16
These provisions collectively explain
what the Native Hawaiian community
must include in its request submitted
under this part.
Section 50.10 sets out the elements of
the request itself. Those elements
include specific written narratives for
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four elements, a ratified governing
document that meets the requirements
of § 50.13, a resolution of the Native
Hawaiian governing body authorizing
its officer to submit a request for a
government-to-government relationship,
and the officer’s certification of that
request. The narratives must describe:
how the governing document reflects
the will of the Native Hawaiian
community (§ 50.11); who could
participate in ratifying the governing
document, and how the community
distinguished HHCA Native Hawaiians
from other Native Hawaiians (§ 50.12);
information about the ratification
referendum (§ 50.14); and information
about the elections for government
offices (§ 50.15). The Department
respects the Native Hawaiian
community’s self-determination,
particularly through drafting a
governing document. As a result, the
rule’s provisions relating to the process
of drafting the community’s governing
document provide only minimum
criteria that must be satisfied for the
Secretary to reestablish a formal
government-to-government relationship
with the community. And, while the
rule text refers to ‘‘periodic elections for
government offices identified in the
governing document,’’ nothing in the
rule precludes the establishment of
appointed positions as well. Section
50.16 lists the eight criteria that the
Secretary will consider when
determining whether to reestablish a
formal government-to-government
relationship. The final rule makes clear
that, in determining whether the request
meets the criteria described in § 50.16,
the Secretary may also consider whether
the request is consistent with this part.
See §§ 50.40, 50.41.
Subpart C—Process for Reestablishing a
Formal Government-to-Government
Relationship
This subpart addresses the procedural
aspects of the rule, from the mechanics
of submission to the notice-andcomment process. The final two
sections, §§ 50.43 and 50.44, discuss the
impact and implementation of
reestablishing a formal government-togovernment relationship.
The provisions of this rule are
generally applicable only in response to
a specific request for the
reestablishment of a formal governmentto-government relationship. Section
50.21 recognizes that the Department is
prepared to provide technical assistance
if requested. The rule does not,
however, create an individual interest or
cause of action allowing a challenge to
the Native Hawaiian community’s
drafting, ratification, or implementation
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of a governing document, separate and
apart from any proceedings that would
follow the submission of a request
under this part. By their terms, §§ 50.43
and 50.44 only apply following
reestablishment of a formal governmentto-government relationship and define
the implementation of that relationship.
(IV) Public Comments on the Proposed
Rule and Responses to Comments
(A) Overview
The Department actively sought
public input in two stages on the rule’s
administrative procedure and criteria
for reestablishing a formal governmentto-government relationship with the
Native Hawaiian community.
First, in June 2014, the Department
published an ANPRM seeking input
from leaders and members of the Native
Hawaiian community and federallyrecognized tribes in the continental
United States. 79 FR 35296–303 (June
20, 2014). 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 extensive
public comments on the ANPRM. The
Department received general comments,
both supporting and opposing the
ANPRM, from individual members of
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the public, Members of Congress, State
legislators, and community leaders.
Second, after careful review and
analysis of the comments on the
ANPRM, in October 2015 the
Department issued a Notice of Proposed
Rulemaking, Procedures for
Reestablishing a Government-toGovernment Relationship with the
Native Hawaiian Community, 80 FR
59113–132 (Oct. 1, 2015), setting forth
an administrative procedure and criteria
that the Secretary would use if the
Native Hawaiian community forms a
unified government that then seeks a
formal government-to-government
relationship with the United States. The
proposed rule did not provide a process
for reorganizing a Native Hawaiian
government, agreeing with many
ANPRM commenters that 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
Federal Government. Over the course of
a 90-day comment period that ended on
December 30, 2015,5 the Department
again received extensive public
comments, including unique public
submissions and duplicate mass
mailings covering a wide range of
issues. The issues discussed in Section
(IV)(B) encompass the range of
significant issues presented in the
comments on the proposed rule.
Comments came from Members of
Congress, Hawaii State government
offices and legislators, academics,
members of the public residing in
Hawaii and in the continental United
States, as well as individuals residing
internationally. Specifically, many
Native Hawaiian Civic Clubs and Native
Hawaiian community, legal, cultural,
and business organizations, as well as
5 The comment period closed on Wednesday,
December 30, 2015, at 11:59 p.m. Eastern Time. The
time zone of the submissions deadline was not
indicated in the Federal Register document (80 FR
59113, 59114), though it was indicated on
www.regulations.gov. Additionally, the deadline
occurred during a busy holiday period. The
Department received 277 submissions within three
business days after the comment period closed,
with many of those comments arriving
electronically to part50@doi.gov (an email address
set up specifically to receive comments during the
comment period) in the early-morning hours of
December 31 (Eastern Time), when it was still
December 30 in Hawaii. The Department kept a
running tally of all comments submitted to part50@
doi.gov after the deadline. As of January 8, 2016,
the Department received four more comments to
part50@doi.gov in addition to the 277. Given the
Department’s interest in considering the full range
of public comments, the confusion caused by
omitting time zone information in the Federal
Register, and the volume of comments received
after the published deadline, the Department
determined to consider all public comments
received by January 8, 2016.
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the National Congress of American
Indians, submitted comments.
Numerous commenters expressed
support for the Department’s proposal
without suggesting any changes and
requested that the Department proceed
to implement the rule as quickly as
possible. Commenters who expressed
general support frequently stated that
the rule would provide a foundation for
achieving parity in Federal policy
related to indigenous communities in
the United States. These commenters
recognized and anticipated that there
would be benefits to the Native
Hawaiian Governing Entity from
working directly with the Federal
Government to implement existing
Federal programs, and listed several
other perceived benefits of a
government-to-government relationship,
including the Native Hawaiian
Governing Entity’s ability to (in no
particular order): (1) Acquire land and
create affordable housing solutions for
its members; (2) enable more direct and
effective management of assets and
resources by Native Hawaiians in
accordance with customary and
traditional practices; (3) facilitate
negotiations regarding the return of land
and other assets to the Native Hawaiian
people; (4) formalize management
agreements with Federal, State, and
local governments that enhance the
ability of Native Hawaiians to contribute
their knowledge and expertise to care
for the environment and natural
resources; (5) improve Native
Hawaiians’ ability to strengthen and
perpetuate their indigenous culture and
languages; (6) access certain veterans’
benefits and health services for Native
Hawaiian veterans; (7) compete for
certain government contracts on a
government-wide basis; and (8) more
effectively coordinate health services
with other human services to improve
the overall health and wellness of the
Native Hawaiian people. Other
supporters noted that a government-togovernment relationship could help
preserve existing Native Hawaiian
Federal benefits, such as culture-based
charter and language-immersion
schools, scholarships, and training
programs, as well as economic, housing,
and health services.
Many commenters, however,
expressed opposition to the rule,
advocating that the Department abandon
its efforts entirely. Most of these
opponents argued that the United States
lacks jurisdiction to promulgate a rule,
is illegally occupying the Hawaiian
Islands, and violated and continues to
violate international law respecting
what the commenters argued is Native
Hawaiians’ right to self-determination
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under international law. Others objected
to any Federal process that pertains to
Native Hawaiian self-determination,
stating that the rule would violate the
U.S. Constitution as impermissibly racebased.
All public comments received on the
ANPRM and the NPRM, along with
supporting documents, are available in
a combined docket at https://
www.regulations.gov/#!docketDetail;D=
DOI-2015-0005.
(B) Responses to Significant Public
Comments on the Proposed Rule
The Department decided to proceed to
the final-rule stage. As described in
Section (III)(B) of this preamble, the
Department made specific changes in
response to public comments, including
clarifications to address specific
concerns. The Department appreciates
the time commenters took to provide
helpful information and valuable
suggestions. Responses to significant
comments relating to specific issues as
well as comments relating to particular
sections of the proposed rule follow
below.
(1) Issue-Specific Response to Comment
(a) Authority
Issue: Several commenters called into
question the Department’s authority to
promulgate this rule and Congress’s
plenary authority over Native
Hawaiians. The Department made no
changes to the proposed rule in
response to these comments.
(1) Comment: Several commenters
questioned the Department’s authority
to reestablish a formal government-togovernment relationship with the Native
Hawaiian community, pointing out that
former U.S. Senator Daniel Akaka
introduced several bills that would have
expressly established a government-togovernment relationship between the
Native Hawaiian community and the
United States, but none of those bills
became law. Several commenters also
questioned Congress’s plenary authority
over Native Hawaiians.
Response: The authority to issue this
rule is vested in the Secretary by 25
U.S.C. 2, 9, 479a, 479a–1; 43 U.S.C.
1457; Act of January 23, 2004, sec. 148,
118 Stat. 445; 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). The
Federal Government has authority to
enter into a government-to-government
relationship with the Native Hawaiian
community. See U.S. Const. art. I, sec.
8, cl. 3 (Commerce Clause); U.S. Const.
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art. II, sec. 2, cl. 2 (Treaty Clause). These
constitutional provisions recognize and
provide the foundation for longstanding
special relationships between
indigenous peoples and the Federal
Government, relationships that date to
the earliest period of our Nation’s
history. When enacting Native Hawaiian
statutes, Congress has expressly stated
in accompanying legislative findings
that it was exercising its plenary power
under the Constitution 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.’’ Native Hawaiian Health
Care Act, 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 Native Hawaiian Education Act,
20 U.S.C. 7512(12)(B), (D) (extending
services to Native Hawaiians ‘‘because
of their unique status as the indigenous
people of a once sovereign nation’’ and
explaining that ‘‘the political status of
Native Hawaiians is comparable to that
of American Indians and Alaska
Natives’’). Over many decades, Congress
enacted more than 150 statutes
recognizing and implementing a special
political and trust relationship with the
Native Hawaiian community. These
Congressional actions establish that the
community is federally ‘‘acknowledged’’
or ‘‘recognized’’ by Congress. Thus, the
Native Hawaiian community has a
special political and trust relationship
with the United States. This final rule
addresses the further and distinct issue
of recognizing a government of the
Native Hawaiian community for
purposes of entering into a formal
government-to-government relationship.
The statutes cited above, in combination
with the Department’s existing
authorities related to Indian affairs,
establish the Department’s authority to
promulgate the final rule to confirm that
the reorganized Native Hawaiian
government, through which the Native
Hawaiian community can conduct
formal government-to-government
relations with the United States, is
authorized to represent the community.
The Department accordingly concludes,
based on these Congressional
enactments and on its analysis of the
record and of applicable law, that the
Secretary may reinstate a formal
government-to-government relationship
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with a Native Hawaiian government in
accordance with this rule.
(2) Comment: Some commenters
claimed that Congress lacks plenary
authority over Native Hawaiians or any
Native Hawaiian governing entity, and
objected to the provision of the
proposed rule that indicated Congress
would have such authority.
Response: The United States strongly
supports principles of selfdetermination and self-governance of
indigenous peoples; nevertheless, if a
Native Hawaiian Governing Entity is
formed, that entity would exercise its
retained inherent sovereign authority
subject to the plenary authority of
Congress. See Section (III) (Authority),
supra. Additionally, to the extent these
comments assert that Hawaii is not part
of the United States, that assertion is
incorrect. As discussed in the next
response to comment, the Department is
bound by Congressional enactments
concerning the status of Hawaii.
(3) Comment: Many commenters
objected to any rulemaking by the
Department, indicating their belief that
Hawaii was illegally annexed by the
United States, that Hawaii is currently
being ‘‘occupied’’ by the United States,
and that the Kingdom of Hawaii
continues to exist as a sovereign nationstate independent of the United States.
Some commenters questioned whether
Hawaii is properly considered to be part
of the United States, suggesting the
Department lacks jurisdiction to
promulgate a rule.
Response: The Department made no
changes to the rule in response to these
comments, which address the validity of
the relationship between the United
States and the State of Hawaii. To the
extent commenters claim that Hawaii is
not a State within United States, the
Department rejects that claim. Congress
admitted Hawaii to the Union as the
50th State. The Admission Act, which
was consented to by the State of Hawaii
and its citizens through an election held
on June 27, 1959, 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 18, 1959, sec. 1, 73 Stat.
4. This express determination by
Congress is binding on the Department
as an agency of the United States
Government that 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.
Agents of the United States were
involved in the overthrow of the
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Kingdom of Hawaii in 1893; and
Congress, through a joint resolution,
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. Apology Resolution at 1513.
This 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 establishing the
current status of the State of Hawaii
remains the controlling law.
(4) Comment: One commenter was
critical of the Department’s citation to
Federal laws relating to, for example,
Hawaiian language, burials, and cultural
activities, and appropriations as
evidence of Congress’s recognition of a
special political and trust relationship
with the Native Hawaiian community.
The commenter argued that these
Federal laws do not ‘‘rise to the level of
an exercise of plenary power
sufficiently analogous to those
addressed in the Commerce Clause of
the [U.S.] Constitution in dealing with
Indian Affairs.’’ Other commenters
echoed this concern.
Response: The Department interprets
Congress’s course of dealings treating
Native Hawaiians as a distinctly native
community of indigenous people as
analogous to its treatment of tribes in
the continental United States and
within the scope of Congress’s power to
legislate with respect to ‘‘Indian tribes’’
under the U.S. Constitution. U.S. Const.
art. I, sec. 8, cl. 3. In the Apology
Resolution, Congress acknowledged that
the illegal overthrow of the Kingdom of
Hawaii ‘‘resulted in the suppression of
the inherent sovereignty of the Native
Hawaiian people’’ and apologized for
the role its agents and citizens played to
‘‘depriv[e]’’ Native Hawaiians of their
‘‘rights of self-determination’’. Apology
Resolution, Section 1(1); (2). And by
expressing its commitment to a process
of reconciliation with the Native
Hawaiian people, the United States
acknowledged the ramifications the
Kingdom’s overthrow had on Native
Hawaiians, including ‘‘long-range
economic and social changes’’ that
devastated the indigenous population
and contributed to its decline in health
and well-being. Id., Section 1(4). The
socioeconomic effects of the overthrow
spanned generations and disparities
continue today. But lack of a formal,
organized government after the
overthrow did not extinguish Native
Hawaiians’ ability to exercise selfdetermination. As discussed in Section
(II), various Native Hawaiian political,
community, and social organizations
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connected to the Kingdom continued to
meet and exercise forms of selfgovernance outside the scope of the
State and local governments. The Native
Hawaiian community’s continuation of
internal self-governance postannexation to the current day
demonstrates its resilience and cohesion
as a political community. Indeed,
Congress specifically recognized Native
Hawaiians’ unique needs as a distinct
indigenous community by enacting
legislation creating programs for their
exclusive benefit, e.g., the Native
Hawaiian Education Act, 20 U.S.C. 7511
et seq.; the Native Hawaiian Health Care
Act, 42 U.S.C. 11701 et seq.; the Native
American Housing Assistance and SelfDetermination Act (NAHASDA), 42
U.S.C. 4221 et seq., and by specifically
including them in other legislation
pertaining to Indian tribes, e.g.,
American Indian Religious Freedom
Act, 42 U.S.C. 1996; Native American
Graves Protection and Repatriation Act,
25 U.S.C. 3001–3013; Native American
Programs Act of 1974, 42 U.S.C. 2991–
2992d. These and other Federal acts
contribute to the process of
rehabilitating the Native Hawaiian
community in the areas of health care,
education, housing, religious freedom,
social welfare, and cultural
preservation, a process that lays the
groundwork for the Native Hawaiian
community to formally reorganize its
government and exercise selfdetermination and self-governance.
Appropriations to fund the programs
created by these and other Federal acts
are an essential part of Congress’s
exercise of its plenary authority over
indigenous peoples. Accordingly, the
Department treats Congressional
appropriations laws similar to
legislation respecting programs for the
Native Hawaiian community.
(b) Constitutionality
Issue: Commenters opposed to the
proposed rule alleged that it would
violate the U.S. Constitution.
Comment: Commenters expressed
concern that any government-togovernment relationship is inherently
race-based and violates both the
Fourteenth Amendment’s Equal
Protection Clause and the Fifteenth
Amendment’s guarantee of the right to
vote regardless of race. Some
commenters expressed the view that it
is not appropriate for indigenous groups
to have separate governments that are
recognized by the United States, or that
Native Hawaiians are not appropriately
accorded that status.
Response: The U.S. Constitution
provides the Federal Government with
authority to recognize and enter into
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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 (Treaty Clause); see also Morton
v. Mancari, 417 U.S. 535, 551–52 (1974)
(‘‘The plenary power of Congress to deal
with the special problems of Indians is
drawn both explicitly and implicitly
from the Constitution itself.’’). These
constitutional provisions recognize and
provide the foundation for longstanding
special relationships between Native
peoples and the Federal Government,
relationships that date to the early days
of our Nation’s history. Consistent with
the Supreme Court’s holding in Morton
v. Mancari, and other cases, the United
States’ government-to-government
relationships with Native peoples do
not constitute ‘‘race-based’’
discrimination but rather are political
classifications.
Moreover, this final rule only creates
a pathway through which a formal
government-to-government relationship
can be reestablished; it does not by itself
establish such a relationship. It is clear
that Congress recognized the Native
Hawaiian community as an indigenous
community within the scope of
Congress’s Indian affairs power under
the Constitution, as well as the
community’s inherent sovereignty and
the United States’ role in suppressing
what the Apology Resolution described
as the community’s ‘‘rights to selfdetermination’’ through the overthrow
of the Kingdom. It accordingly has
provided that community with certain
programs and benefits. See Board of
County Comm’rs v. Seber, 318 U.S. 705,
715 (1943) (once the United States
‘‘overcame the Indians and took
possession of their lands, sometimes by
force, leaving them . . . needing
protection . . . [it] assumed the duty of
furnishing . . . protection and with it
the authority to do all that was required
to perform that obligation’’). As
Congress 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.’’ Native Hawaiian
Homelands Homeownership Act of
2000, 114 Stat. 2968. Thus, ‘‘the
political status of Native Hawaiians is
comparable to that of American Indians
and Alaska Natives.’’ Native Hawaiian
Education Act, 20 U.S.C. 7512(12)(B),
(D); see Rice, 528 U.S. at 518–19.
Therefore, reestablishing a governmentto-government relationship here gives
further expression to the special
political and trust relationship Congress
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already established with the Native
Hawaiian community, in a manner
similar to the United States’ relationship
with Indian tribes in the continental
United States. Such a relationship is
constitutional. Congress and the
Department both encourage selfgovernment by tribes, and have done so
for decades. This policy is beneficial not
only to indigenous communities but
also to the United States as a whole.
(c) Voter Eligibility
Issue: The Department received
numerous comments on the provisions
in the proposed rule concerning the
Native Hawaiian community’s ability to
determine and verify voter eligibility
based on Native Hawaiian ancestry. The
Department made key changes to § 50.12
in response to these comments.
(1) Comment: In the preamble to the
proposed rule, 80 FR 59124, the
Department asked for comment on
whether there are circumstances in
which the rule should rely on sworn
statements punishable under state law
to document ‘‘HHCA Native Hawaiian’’
status under § 50.4 and corresponding
sections of the proposed rule. Citing the
lack of official databases that
distinguish between ‘‘HHCA Native
Hawaiians’’ and other ‘‘Native
Hawaiians,’’ one commenter suggested
that sworn statements punishable under
state law should be accepted as
sufficient evidence of ‘‘HHCA Native
Hawaiian’’ status for voting purposes
only. Other commenters supported the
use of sworn statements for ‘‘Native
Hawaiians’’ as well.
Response: The Department concludes
that sworn statements may be used to
demonstrate ‘‘HHCA Native Hawaiian’’
or ‘‘Native Hawaiian’’ status for
purposes of voting in the ratification
referendum. New language was added to
the final rule indicating that reliable
self-certifying sworn statements are
sufficient for purposes of participation
in the ratification referendum.
In light of this change, the Department
added a definition of ‘‘sworn statement’’
and introductory language in § 50.12
requiring the Native Hawaiian
community to explain the procedures it
used for verifying the self-certifying
‘‘Native Hawaiians’’ and ‘‘HHCA Native
Hawaiians.’’ Section 50.12(b) sets out
five ways in which a potential voter
could, through a sworn statement,
affirm his or her Native Hawaiian status.
See § 50.12(b)(i)–(v). For example, the
sworn statement could affirm that the
potential voter:
• Is enumerated on a roll or list
prepared by the State of Hawaii under
State law (where enumeration is based
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on documentation that verifies Native
Hawaiian descent);
• is currently or previously enrolled
as a Native Hawaiian in a Kamehameha
Schools program;
• is identified as ‘‘Native Hawaiian’’
(or some equivalent term) on a birth
certificate; or
• is identified as ‘‘Native Hawaiian’’
(or some equivalent term) in a Federal,
state, or territorial court order
determining ancestry.
A sworn statement is sufficient
evidence of HHCA Native Hawaiian
status as long as that statement affirms
that there are specific means to establish
the potential voter’s eligibility as Native
Hawaiian under HHCA sec. 201(a)(7), or
if the statement affirms that a court
order does so. See § 50.12(c). Acceptable
documentation to support the sworn
statements could include, but is not
limited to, a Hawaiian home-lands lease
as Native Hawaiian under HHCA sec.
201(a)(7) or correspondence from DHHL
indicating such Native Hawaiian
beneficiary status. Notably,
documentation of either status need not
actually accompany a sworn statement,
unless the community requires it. If the
Native Hawaiian community chooses, it
may identify HHCA Native Hawaiians
on its voter list of Native Hawaiians at
the time the votes are cast. Regardless of
when the community identifies its
HHCA Native Hawaiian voters,
however, the community must account
for both HHCA Native Hawaiians and
Native Hawaiians vote tallies.
The rule provides safeguards against
potential voter fraud by requiring
specific support for the potential voter’s
status, § 50.12(b), (c), as well as
requiring separate vote tallies for Native
Hawaiians and HHCA Native
Hawaiians, § 50.14(b)(5)(v). In addition
to these foundational provisions, the
rule provides the public with an
opportunity to present evidence on
whether the community’s request meets
the standards set out in § 50.16
(§ 50.30(a)(2)(iv)), which could include
evidence that, for example, the Native
Hawaiian community did not meet the
requirements of § 50.12 or § 50.14.
Finally, the Secretary may request
additional documentation and
explanation with respect to the request
submitted under this part (§ 50.40).
The comments make clear that there
is no comprehensive listing of ‘‘Native
Hawaiians’’ and ‘‘HHCA Native
Hawaiians.’’ Therefore, it is likely that
many may not be enumerated in any roll
maintained by the State or other entity.
The comments also make clear that
many ‘‘Native Hawaiians’’ and ‘‘HHCA
Native Hawaiians’’ objected to being
enumerated on any roll, State sponsored
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or otherwise, without their consent
(even if there is an established process
to have their names removed), and that
some may not have any ancestral
documentation. Accordingly, in
addition to sworn statements described
above, the Department amended the
proposed rule to permit an eligible voter
to sponsor a closely related blood
relative (mother, father, child, brother,
sister, grandparent, aunt, uncle,
grandchild, niece, nephew, or first
cousin) as qualified for participation in
a ratification referendum through a
sworn statement based on the voter’s
personal knowledge that the blood
relative meets the definition of Native
Hawaiian or HHCA Native Hawaiian,
with the consent of that relative. The
sponsor would not be required to
document the blood relative’s ancestry
because the sponsor’s eligibility would
already have been addressed.
To be clear, sworn statements to
verify a potential voter’s own ancestry
must reliably establish some degree of
Native Hawaiian ancestry. Native
Hawaiian ancestry is absolutely
required for all Native Hawaiians
seeking to participate in the ratification
referendum. Accordingly, the sworn
statement should describe the evidence
relied on to establish eligibility to vote
in the ratification referendum. The
Native Hawaiian community could do
so by requiring the potential voter to
affirm that he or she is able to establish
his or her Native Hawaiian or HHCA
Native Hawaiian status through one of
the methods listed in § 50.12(b)(3)(i)–(v)
or (c)(2)(i)–(iv), respectively. The
methods in § 50.12(b) and (c) are
optional.
At the end of the sworn statement, the
Native Hawaiian community could
require language such as:
‘‘I swear/affirm that the information I
have provided is true to the best of my
knowledge and understand that a false
statement is punishable under state law.
If I have provided false information, I
may be fined, imprisoned, or both.’’
The Native Hawaiian community may
verify sworn statements by an
appropriate method, such as through
review of such documentation where it
is readily available, or through
maintaining a voter registration list that
it makes public to allow for objections,
and providing a mechanism to resolve
any challenges by registered voters.
Such a list must be maintained for a
reasonable period after the Secretary has
made a determination to accept or reject
a request for a government-togovernment relationship based on that
ratification vote.
(2) Comment: One commenter
suggested that the final rule should
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include alternative methods to
demonstrate Native Hawaiian ancestry,
to accommodate individuals who do not
have written documentation.
Response: For purposes of the
ratification vote, the proposed rule
provided for documentation of ancestry
using ‘‘other means to document
generation-by-generation descent from a
Native Hawaiian,’’ and ‘‘other records or
documentation demonstrating eligibility
under the HHCA’’ in § 50.12. But to
address more specifically those without
any written ancestry documentation, the
Department includes new language in
the final rule. The rule accordingly
permits an eligible voter to sponsor a
closely related blood relative, i.e.,
mother, father, child, brother, sister,
grandparent, aunt, uncle, grandchild,
niece, nephew, or first cousin, for
participation in a ratification
referendum as a Native Hawaiian or an
HHCA Native Hawaiian. Such
sponsorship must be made by sworn
statement based on personal knowledge
that the relative meets the definition of
Native Hawaiian or HHCA Native
Hawaiian. See § 50.12(b), (c); response
to comment (c)(1). For the sponsorship
to be valid, the sponsor must be
enumerated on a roll certified by the
State of Hawaii under State law, be
enumerated in official DHHL records
demonstrating eligibility under the
HHCA, provide proof of current or prior
enrollment in Kamehameha Schools as
a Native Hawaiian, or provide a birth
certificate or court order listing
Hawaiian or Native Hawaiian ancestry.
See § 50.12(a). The rule also permits
‘‘other similarly reliable means of
establishing generation-by-generation
descent from a Native Hawaiian
ancestor’’ and ‘‘other similarly reliable
means of establishing eligibility under
HHCA sec. 201(a)(7)’’ in § 50.12.
(3) Comment: On 80 FR 59124, the
Department asked for 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.
Response: Commenters who
responded to this question supported
‘‘requiring processes and standards of
documentation that are consistent with
the processes used by the State of
Hawaii Department of Hawaiian Home
Lands (DHHL), the Kamehameha
Schools, and other existing public and
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private trusts currently providing
services to and verifying the status of
individual Native Hawaiians because of
their status as members of Hawaii’s only
indigenous people, the Hawaiian
people.’’ They specifically did not
support documenting descent using the
1890, 1900, or 1910 censuses because
DHHL, Kamehameha Schools, and other
entities ‘‘have well-established
processes that the Native Hawaiian
community is most familiar with, and
account for any historical events that
present challenges for Native Hawaiians
seeking to establish a generation-bygeneration connection to a census roll
that is more than 100 years old.’’ The
Department determined that there is a
lack of support for specifically naming
the censuses in a final rule for purposes
of documenting generation-bygeneration descent and therefore did not
include such references. The rule does
not prevent the Native Hawaiian
community from relying on those
censuses if it determines that they are
reliable evidence of lineal descent from
the native peoples who occupied and
exercised sovereignty over the territory
that became the State of Hawaii.
In further response, the Department
determined that current or prior
enrollment as a Native Hawaiian in a
Kamehameha Schools program is
acceptable verification of ancestry based
on the Department’s own research and
commenters’ confidence in that process
as legitimate and well-established
within the Native Hawaiian community
for purposes of documenting Native
Hawaiian descent. This change further
necessitated a change to the
introductory provisions of § 50.12 to
require that the Native Hawaiian
community explain its requirements for
use of any sworn statements and the
procedures it used for verifying the selfcertifying ‘‘Native Hawaiians’’ and
‘‘HHCA Native Hawaiians.’’ See
response to comment (1)(c)(1).
(4) Comment: One commenter offered
that any deliberations about what
constitutes ‘‘sufficient’’ proof of descent
‘‘must incorporate Hawaiian language
records,’’ arguing that ‘‘a broader
literature for verification needs to be
engaged including name chants, birth
chants, and various genres of grief
chants which are filled with
genealogical and land information.’’
Another commenter suggested that, in
the absence of birth certificates, other
documents to verify descent should be
added, such as ‘‘church documents,
marriage and death certificates, land
ownership, employment records, etc.’’
Response: Although some of the
enumerated items may provide
acceptable genealogical evidence,
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particularly in combination with other
sources, these items were not expressly
added to the final rule because § 50.12
already provides for documentation of
ancestry using ‘‘other similarly reliable
means of establishing generation-bygeneration descent from a Native
Hawaiian ancestor’’ and ‘‘other similarly
reliable means of establishing eligibility
under HHCA sec. 201(a)(7)’’ in § 50.12.
These ‘‘other similarly reliable means’’
could include the commenters’
proposed alternative sources as long as
the Native Hawaiian community
explains in its written narrative how
and when those sources were acceptable
as ‘‘reasonable and reliable’’
documentation of descent under § 50.12.
In response to these comments, the
Department included birth certificates
indicating ‘‘Native Hawaiian’’ (or an
equivalent term) and court orders
determining such ancestry as acceptable
for establishing Native Hawaiian
ancestry.
(d) Membership
(1) Comment: One commenter noted
that the proposed rule prevents the
Native Hawaiian community from
excluding ‘‘HHCA Native Hawaiians’’
from its membership in § 50.13, which
‘‘cuts against’’ Santa Clara Pueblo v.
Martinez, 436 U.S. 49 (1978), and could
be ‘‘read to prohibit the Native
Hawaiian government from revoking
membership, another practice of tribal
sovereignty upheld by the [U.S.]
Supreme Court.’’
Response: While it is true that
§ 50.13(f)(1) requires that ‘‘HHCA Native
Hawaiians’’ be permitted to enroll,
nothing in § 50.13 addresses whether
and on what basis the Native Hawaiian
community may disenroll individual
members. Membership in a political
community is voluntary and not
compulsory. Importantly, in the HHCA,
Congress recognized ‘‘HHCA Native
Hawaiians’’ as a vital part of the Native
Hawaiian community, so any Native
Hawaiian government that seeks to
reestablish a formal government-togovernment relationship under this rule
must permit them to enroll and
guarantee their civil rights. Section
50.13, however, does not address
disenrollment, but any such action must
be done in compliance with due-process
principles. See response to comment
(1)(m)(10). Any existing benefits under
Federal law that a member has would be
unaffected by the community action.
See response to comment (1)(f).
(2) Comment: One commenter noted
that while a Native Hawaiian ancestral
connection is a requirement for
membership under the proposed rule,
‘‘there is no test specified in the rule
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that must be used,’’ and that ‘‘anyone’’
(non-Hawaiians) could be a member if
such a test is not adopted. Another
commenter suggested that genealogical
DNA testing should be listed as a
method to determine ancestry.
Response: Neither the proposed nor
final rules specify what ‘‘tests’’ the
Native Hawaiian community must use
in order to verify that the individuals
who apply for membership meet the
community’s membership requirements.
Such ‘‘tests’’ are for the Native Hawaiian
community to decide in accord with
Santa Clara Pueblo. Although the rule
specifies criteria for participation in the
ratification process, that is a distinct
question from the issue of membership
in the community’s governing entity,
which will be determined by the
community itself.
(3) Comment: Some commenters
expressed the view that decisions as to
the membership and scope of the
community should be left for the
community itself to decide. One
commenter recommended deleting
§ 50.13(f), which requires the Native
Hawaiian community’s governing
document to describe its criteria for
membership subject to certain
conditions.
Response: The Department agrees that
the Native Hawaiian community should
define its own membership as an
exercise of self-determination, but
rejects the commenter’s suggestion to
eliminate § 50.13(f). Section 50.13(f)
provides certain minimum criteria that
must be met by any governing
document, including, among other
provisions, safeguards for HHCA Native
Hawaiians to ensure that the governing
document fairly reflects the composition
of the Native Hawaiian community that
Congress recognized and to which
Congress provided special programs and
services. 80 FR at 59125–26. These
criteria provide the Native Hawaiian
community with firmly established
standards consistent with Congressional
intent and provide the Department clear
criteria to apply when considering a
request to reestablish a formal
government-to-government relationship.
Section 50.13(f) seeks to ensure that the
community represented by the Native
Hawaiian Governing Entity is the
community recognized by Congress, and
is a reasonable exercise of Department’s
authority in determining the community
it is responsible to serve.
(e) Terminology
Issue: The Department received
extensive comments on the effect and
impact of the proposed rule’s use and
distinction between the terms ‘‘Native
Hawaiian’’ and ‘‘HHCA Native
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Hawaiian.’’ The Department made no
changes to the proposed rule in
response to these comments.
(1) Comment: Multiple commenters
objected to the proposed rule’s
distinction between ‘‘Native Hawaiians’’
and ‘‘HHCA-eligible Native Hawaiians,’’
arguing that such a distinction based on
blood quantum is a ‘‘foreign concept’’
within their community. Others
similarly objected to the proposed rule’s
criteria for membership that excludes
non-Hawaiians.
Response: Congress recognizes both
HHCA Native Hawaiians and Native
Hawaiians as one people, but through
statutory definition establishes that the
HHCA Native Hawaiians are a subset of
the other. Consistent with Congressional
policy, the Department accounted for
both statutory definitions in the process
for reestablishing a formal governmentto-government relationship with the
recognized Native Hawaiian community
. . . The rule uses these Congressional
definitions to ensure that the will of the
recognized community as a whole is
reflected in the ratification process.
The Department is aware of
community concerns with respect to
distinguishing between Native
Hawaiians and HHCA Native
Hawaiians. The rule includes relatively
few conditions on the Native Hawaiian
community’s exercise of its inherent
sovereignty to determine its own
membership in any governing
document. It is important to note that
the rule sets forth a process to facilitate
reestablishing a formal government-togovernment relationship between the
Native Hawaiian community and the
United States, and does not impose a
specific, or ‘‘foreign,’’ form of
government on the community.
Congressional dealings with the Native
Hawaiian community also require that
non-Native Hawaiians be excluded from
the ratification vote and membership
because the statutory definitions of the
recognized community require a
demonstration of descent from the
population of Hawaii as it existed before
Western contact. See 80 FR at 59119.
The Department must also follow
Congress’s definition of the nature and
scope of the Native Hawaiian
community. Therefore, the Department
did not make any changes to the rule in
response to these comments.
(2) Comment: Some commenters
stated that the term ‘‘Indian’’ is not
properly applied to Native Hawaiians,
and that the term ‘‘tribe’’ is not properly
applied to a Native Hawaiian sovereign
or its governing body. They noted the
distinctive history of Native Hawaiians
and of the Kingdom of Hawaii, and
asserted that this history renders these
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terms inappropriate for Native
Hawaiians and for their government.
Response: As discussed above, the
drafters of the U.S. Constitution used
the terms ‘‘Indians’’ and ‘‘Indian tribes’’
to define Congress’s power and
authority with regard to indigenous
political sovereigns. These terms
encompass Native peoples who have
diverse cultures, languages, and
ethnological backgrounds throughout
the United States. Congress repeatedly
exercised its Indian affairs power when
legislating for the Native Hawaiian
community over the course of the last
century. It is on that basis that Congress
established a special political and trust
relationship with the Native Hawaiian
community.
(3) Comment: Some commenters
stated that Native Hawaiians do not
consider themselves to be ‘‘Indians’’ or
members of a ‘‘tribe.’’
Response: Congress recognizes the
diversity among the indigenous peoples
that fall within the Indian affairs
powers. The Department respects that
the Native Hawaiian and Native
American communities on the mainland
have exceptionally diverse histories and
cultures, and that many of these
communities use their own terminology
in referencing their members and their
governments. Accordingly, it is up to
the Native Hawaiian community to
establish what terminology it believes is
most appropriate, in accordance with
principles of self-determination.
(4) Comment: A commenter noted that
Native Hawaiians became United States
citizens at the time of Hawaii’s
annexation, and that this distinguished
them from Indians elsewhere in the
United States, who did not become
citizens until enactment of the Indian
Citizenship Act of 1924.
Response: Congress accorded U.S.
citizenship to many groups of Indians,
by treaty and by statute, throughout the
course of the nineteenth century and
continued to do so until the adoption of
the Indian Citizenship Act. See Cohen’s
Handbook of Federal Indian Law sec.
14.01[3], at 926–31 (2012 ed.). The fact
that Congress accorded Native
Hawaiians U.S. citizenship at the time
of Hawaii’s annexation, well before
passage of the Indian Citizenship Act, is
therefore not a meaningful distinction.
(f) HHCA Native Hawaiian rights
Issue: The Department received
numerous comments on the proposed
rule’s express protections for ‘‘HHCAeligible Native Hawaiians’’ and their
existing rights under Federal law. No
changes to the proposed rule were made
in response to these comments.
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(1) Comment: Many commenters were
concerned that the proposed rule would
permit the Native Hawaiian Governing
Entity to ‘‘take control of the Hawaiian
home lands,’’ and otherwise ‘‘deprive
the [HHCA beneficiaries and]
homesteaders of protections they have
come to expect.’’ In the process, the
commenters allege, the Department
would ‘‘abdicate’’ its fiduciary duties to
this new entity that has no enforceable
commitment to protect HHCA Native
Hawaiians, thus jeopardizing their
rights and protections under Federal
law.
Response: The Department
appreciates the importance of protecting
HHCA beneficiaries’ unique status
under Federal law. The rule protects
that status in a number of ways:
• The rule requires that the governing
document protect and preserve rights,
protections, and benefits under the
HHCA.
• The rule leaves intact rights,
protections, and benefits under the
HHCA.
• The rule does not authorize the
Native Hawaiian government to sell,
dispose of, lease, tax, or otherwise
encumber Hawaiian home lands or
interests in those lands.
• The rule does not diminish any
Native Hawaiian’s rights or immunities,
including any immunity from State or
local taxation, under the HHCA.
• The rule defines the term ‘‘HHCA
Native Hawaiians’’ to include any
Native Hawaiian individual who meets
the definition of ‘‘native Hawaiian’’ in
the HHCA.
• The 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 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 broadly
objectionable to HHCA Native
Hawaiians. The Department expects that
the participation of HHCA Native
Hawaiians in the referendum process
will ensure that the structure of any
ratified Native Hawaiian government
will include long-term protections for
HHCA Native Hawaiians.
• The rule prohibits the Native
Hawaiian government’s membership
criteria from excluding any HHCA
Native Hawaiian who wishes to be a
member.
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See 80 FR at 59120. Moreover,
because Federal law provides both
defined protections for HHCA
beneficiaries and specific guarantees of
individual civil rights, HHCA
beneficiaries would continue to be
protected after a formal government-togovernment relationship is established.
See § 50.13(g)–(j); 80 FR 59125–26.
In short, HHCA beneficiaries’ existing
rights under Federal law, and the
Secretary’s and the State’s authority and
concurrent obligations, are unchanged
by promulgation of this rule or the
reestablishment of a formal governmentto-government relationship with the
Native Hawaiian Governing Entity.
Ultimately, only Congress can diminish
or otherwise modify the existing rights
of HHCA beneficiaries, and the Native
Hawaiian Governing Entity is bound by
Federal law. Similarly, Congressional
action would be required before the
Native Hawaiian Governing Entity, or
any political subdivision within it,
would be authorized to manage
Hawaiian home lands.
(2) Comment: Some HHCA
beneficiaries expressed concern that
they will be reduced to a political
subdivision when they currently have
the most rights under Federal law.
Response: The Department takes no
position on the internal organization of
any Native Hawaiian government,
including the existence and nature of
any political subdivisions. The
Department notes, however, that should
such political subdivisions exist, being
a political subdivision of a larger
political community does not
necessarily mean that the members of
the subdivision will lose rights or
benefits. Questions of what political
subdivisions to create, if any, and what
authorities those subdivisions should
possess, are for the Native Hawaiian
community to decide.
(3) Comment: Commenters argued
that the proposed rule pits non-HHCA
Native Hawaiians against HHCA Native
Hawaiians by providing express
protections for the latter while offering
the former only the ability to participate
in a government with no guarantee of
lands or power over non-Hawaiians.
Response: As explained above, the
rule reflects distinctions between HHCA
Native Hawaiians and Native Hawaiians
made by Congress, and in so doing,
protects those existing rights that
Congress provided in the HHCA and in
over 150 other statutes relating to the
Native Hawaiian community. If a Native
Hawaiian government reorganizes and a
formal government-to-government
relationship is reestablished pursuant to
the rule, all Native Hawaiians would
benefit through improved facilitation of
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their existing Federal benefits and a
government-to-government relationship.
(4) Comment: One commenter
suggested that the Secretary’s role and
responsibility to the HHCA beneficiaries
should be defined in the rule; as an
alternative, this commenter suggested
authorizing an Inspector General or
Ombudsman specifically for HHCA
beneficiaries.
Response: The Secretary’s role and
responsibilities toward Native
Hawaiians are defined by multiple Acts
of Congress, see, e.g., the HHCA, the
Admission Act, and the HHLRA.
Congress specifically authorized the
Department’s Office of Native Hawaiian
Relations within the Office of Policy,
Management, and Budget to focus on
Native Hawaiian relations, including
HHCA beneficiaries’ rights and benefits
under the HHCA. That office is the
primary office to address concerns by
these constituents, and can involve
other Departmental offices or agencies
as necessary. The Department made no
changes to the rule in response to this
comment.
(5) Comment: Commenters stated that
the HHCA Native Hawaiians should be
permitted to submit a separate request
to the Secretary based on broad-based
support within that group.
Response: Congress consistently
treated the Native Hawaiian community
as a single entity through more than 150
Federal laws. Congress’s recognition of
a single Native Hawaiian community
reflects the fact that a single Native
Hawaiian government was in place prior
to the overthrow of the Kingdom of
Hawaii. See response to comment
(1)(m)(18). Congress established a
special political and trust relationship
with a single Native Hawaiian
community, even as it used different
definitions to focus on specific persons
within that one community. For
example, in 2000, Congress enacted the
American Homeownership and
Economic Opportunity Act to help
satisfy the need for affordable homes in
Indian communities. 12 U.S.C. 1701, 25
U.S.C. 4101; Act of December 27, 2000,
114 Stat. 2944. As part of that program,
Congress addressed housing assistance
for Native Hawaiians and broadly
defined the term ‘‘Native Hawaiian’’
consistent with the definition of Native
Hawaiians in this rule. See 25 U.S.C.
4221(9). In the same statute, Congress
separately recognized that the
‘‘beneficiaries of the Hawaiian Homes
Commission Act’’ should be given a
unique opportunity to comment on
particular aspects of the program. 25
U.S.C. 4239(d). In the Act’s findings,
Congress specifically stated that, among
the Native Hawaiian population, those
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eligible to reside on the Hawaiian home
lands have the most severe housing
needs. 25 U.S.C. 4221 Note; Act of
December 27, 2000, 114 Stat. 2944. It
follows that the Department cannot
support an approach that would permit
a subset of the Native Hawaiian
community to separately request a
government-to-government relationship
independent of the rest of the
community recognized by Congress.
Instead, any request must demonstrate
broad-based support from the
recognized Native Hawaiian community
as a whole.
(g) Ratification Referendum
Issue: The Department received
numerous comments on the proposed
rule’s provisions related to the
requirements of and the process for
voting in the ratification referendum for
the Native Hawaiian government’s
governing document, as well as who
may vote and how those votes must be
tallied.
(1) Comment: Commenters state that
the rule should not set numerical
thresholds for the ratification
referendum. Instead, ratification of the
governing document should be
demonstrated by a majority (or a
plurality) of actual voters, regardless of
turnout.
Response: The Department disagrees.
The ratification vote must reflect the
views of the Native Hawaiian
community as demonstrated through
broad-based community participation in
the ratification referendum and broadbased community support for the
governing document. Broad-based
community participation and support
are essential to ensuring the legitimacy
of the Native Hawaiian government and
the viability of its formal government-togovernment relationship with the
United States.
A low vote in favor of the governing
document would demonstrate a lack of
broad-based community support.
Similarly, a high voter turnout that fails
to secure a majority of votes in favor of
the governing document would also
demonstrate a lack of broad-based
community support. Accordingly, the
rule sets numerical thresholds for
community participation in support and
requires that the number of votes in
favor be a majority of all votes cast.
These thresholds are based on an
objective measure of broad-based
community participation and on the
requirement that votes in favor
constitute a majority of all votes cast.
Without them, multiple Native
Hawaiian groups could purport to lead
the effort to reestablish a government-togovernment relationship with the
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United States, each with its own
governing document approved through
a ‘‘ratification’’ process, each purporting
to legitimately represent the entire
community. Establishing reasonable
numerical thresholds at the outset
provides a transparent and sound basis
for distinguishing a governing document
that has the Native Hawaiian
community’s broad-based support from
a governing document that lacks such
support.
(2) Comment: Some commenters state
that the numerical thresholds in the
proposed rule’s § 50.16(g)–(h) are too
high and could not be met as a practical
matter. Other commenters stated that
they are too low in light of census data
on the size of the Native Hawaiian
population.
Response: A number of commenters
urged higher numerical thresholds;
others urged lower thresholds; and
many commenters supported the
proposed thresholds. These comments
are significant because they indicate
that there is no clear consensus on
whether the Department’s threshold
numbers are too high or too low. The
Department concludes that the
thresholds enumerated in § 50.16 are
reasonable and achievable. The
methodology for producing these ranges
is explained in detail in Section (III).
(3) Comment: Commenters questioned
the significance of the 50,000 and
15,000 affirmative-vote presumptions of
broad-based community support since
the proposed rule requires that a
minimum of 30,000 affirmative votes,
including a minimum of 9,000
affirmative votes from HHCA Native
Hawaiians, is sufficiently large to show
broad-based community support.
Response: The 30,000 and 9,000
affirmative-vote thresholds are
minimum thresholds designed to help
the Department determine whether a
requester demonstrates that the
governing document has broad-based
community support. For example, if
29,999 or fewer Native Hawaiians vote
in favor of the requester’s governing
document, it is reasonable to find a lack
of broad-based community support
among Native Hawaiians, and the
Secretary would decline to process the
request. In contrast, if 50,000 or more
Native Hawaiians vote in favor of the
requester’s governing document (and
they constitute a majority of all Native
Hawaiians who vote), the Secretary is
justified in applying a presumption that
the broad-based community support
criterion is satisfied. The proposed rule
referred to the presumption as ‘‘strong.’’
The Department has only referenced a
‘‘presumption’’ in the final rule, to
clarify that the Secretary has full
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authority to review the request and
accompanying materials for consistency
with this rule and with Federal law. If
the number of affirmative votes
constitutes a majority and falls in
between those figures—i.e., if the
number of affirmative votes is in the
range of 30,000 to 49,999—the Secretary
will consider the request and will need
to determine, unaided by any
presumption, whether the requester
demonstrated that the governing
document has broad-based support from
the Native Hawaiian community.
The same approach applies to the
tally of affirmative votes cast by the
subset of Native Hawaiians who are also
‘‘HHCA Native Hawaiians,’’ except the
affirmative vote thresholds are 9,000
(rather than 30,000) and 15,000 (rather
than 50,000).
(4) Comment: Commenters state that
the rule’s numerical thresholds should
not be based solely on census data,
which rely entirely on self-reporting
rather than on documentary verification
of Native Hawaiian descent.
Response: The rule’s numerical
thresholds are not based solely on
census data, as the sample methodology
presented above demonstrates. In setting
the thresholds, the Department not only
considered data from the Federal
decennial censuses of 2000 and 2010
(both for Hawaii and for the United
States), but also considered: (1) Voterregistration data for all Hawaiians; (2)
voter-registration data for Native
Hawaiians (when such data were kept);
(3) voter-turnout data for all Hawaiians;
(4) voter-turnout data for Native
Hawaiians (again, when such data were
kept); (5) data from the 2014 American
Community Survey (ACS) (both for
Hawaii and for the United States); (6)
data from the Native Hawaiian Roll
Commission’s Kanaiolowalu roll; (7)
data from a 1984 survey summarized in
the Native Hawaiian Data Book; (8)
population projections from the
Strategic Planning and Implementation
Division of the Kamehameha Schools;
and (9) data from the Hawaiian
Sovereignty Elections Council’s 1996
‘‘Native Hawaiian Vote.’’
The Department finds the actual
election data particularly probative. As
explained above, in the 1990s, the
Hawaii Office of Elections tracked
Native Hawaiian status. The Office
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
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Hawaiian. Thus, the census data and
voter data are consistent and reliance on
the voter data is reasonable. See also
Kamehameha Schools, Ka Huakai: 2014
Native Hawaiian Education Assessment
16–22 (2014) (population projections)
(citing Justin Hong, Native Hawaiian
Population Projections (unpublished
2012)).
(5) Comment: Commenters state that
numerical thresholds in 2016 should
not be based on obsolete data from
Census 2010.
Response: First, as explained above,
the Census Bureau is only one of several
sources used in setting the rule’s
numerical thresholds. Second, 2010 is
the year of the most recent Federal
decennial census of population, so the
Department gave it greater weight than
earlier census data. Third, the
Department also considered data from
the 2000 Federal decennial census to
discern population trends that could be
projected forward to 2016. Finally, the
Department considered more recent
census data from the ACS. Figures from
the 2014 ACS are based on statistical
sampling rather than an enumerated
headcount and therefore may have a
sizable margin of error, but are broadly
consistent with figures from the
decennial censuses.
The Department based this analysis
on existing, available data. If significant
new data become available, the
Secretary may elect to issue a
supplemental rule revising the rule’s
thresholds.
(6) Comment: The rule provides that
those seeking to vote in any ratification
referendum must be able to reliably
verify their Native Hawaiian ancestry.
Some commenters stated that the
numerical thresholds should be
adjusted downward because some selfreported Native Hawaiians may not be
able to verify their Native Hawaiian
ancestry, and because the verification
process will impose administrative
burdens that will reduce participation
in the referendum.
Response: The verification process is
not likely to be burdensome enough to
significantly deter voter participation. In
addition, the final rule includes new
provisions in § 50.12 to afford the
Native Hawaiian community flexibility
in compiling a voter list that is based on
documenting Native Hawaiian ancestry
without significant administrative
burdens in verifying ancestry.
(7) Comment: Commenters suggest
that numerical thresholds should reflect
actual ‘‘participation rates for the larger
U.S. citizenry’’ in actual elections.
Response: As described above, in
establishing the rule’s numerical
thresholds, the Department relied in
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part on actual turnout figures in
Hawaii’s presidential and off-year
(gubernatorial) elections, both in the
1990s and in recent years, and adjusted
them for out-of-state voters. The
Department concludes that the
adjustments to the voter-turnout data for
in-state Native Hawaiians provide a
reasonable objective measure on which
to base its affirmative vote-thresholds to
demonstrate broad-based community
support.
(8) Comment: Commenters state that
the proposed rule’s numerical
thresholds are inconsistent with
requirements established for Indian
tribes in the continental United States,
including the so-called ‘‘30-percent
rule’’ in 25 U.S.C. 478a, a 1935
amendment to the Indian
Reorganization Act of 1934 (IRA), which
provides that certain tribal constitutions
may be adopted only by a majority vote
in an election where the total votes cast
are at least ‘‘30 per centum of those
entitled to vote.’’
Response: The IRA elections
referenced by these commenters do not
apply to this rule because the IRA does
not encompass Native Hawaiians. The
number of persons ‘‘entitled to vote’’ is
based on Congressional definitions and
on projections from necessarily
imprecise demographic and voterturnout data. Some degree of
approximation therefore is inevitable.
Although the IRA’s 30-percent rule is
not applicable, available demographic
evidence suggests that the threshold
numbers the Department selected are
generally consistent with that rule. To
take one example: It appears that, at
some point between 2015 and 2017, the
number of Native Hawaiian adults
residing in Hawaii topped or will top
200,000. See Ka Huakai: 2014 Native
Hawaiian Education Assessment, supra,
at 20. Thirty percent of 200,000 is
60,000 Native Hawaiian voters—that is,
the number of such adults who would
be expected to vote in an election whose
turnout barely meets 25 U.S.C. 478a’s
30-percent requirement—and a majority
vote in a 60,000-voter election would
require 30,001 affirmative votes. These
figures, among others, support the rule’s
30,000-affirmative-vote threshold for
Native Hawaiians.
Likewise, it is reasonable to estimate
the number of HHCA Native Hawaiian
adults residing in Hawaii to now be
about 60,000. See infra (estimating the
fraction of Native Hawaiians who are
also HHCA Native Hawaiians). Thirty
percent of 60,000 is 18,000 HHCA
Native Hawaiian voters—that is, the
number of such adults who would be
expected to vote in an election whose
turnout barely meets 25 U.S.C. 478a’s
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30-percent requirement—and a majority
vote in an 18,000-voter election would
require 9,001 affirmative votes. These
figures, among others, support the rule’s
9,000-affirmative-vote threshold for
HHCA Native Hawaiians.
(9) Comment: Commenters state that
the rule’s numerical thresholds should
account for out-of-state Native
Hawaiians and should not
‘‘disenfranchise’’ out-of-state Native
Hawaiians or assume that they are not
interested in issues involving the Native
Hawaiian community. Other
commenters state that the thresholds are
too low given census data on the size of
the Native Hawaiian population
nationwide.
Response: Many out-of-State Native
Hawaiians show great interest in their
community and the Department
adjusted the estimated voter turnout
upward to include their participation.
They are not disenfranchised by this
rule. Indeed, § 50.14(b)(5)(iii) expressly
accounts for them by requiring that the
ratification referendum be ‘‘open to all
persons who were verified as satisfying
the definition of a Native Hawaiian . . .
and were 18 years of age or older [on the
last day of the referendum], regardless
of residency’’ (emphasis added). It is
likely, however, that out-of-State Native
Hawaiians will not participate to the
degree that in-state Native Hawaiians
will participate in the ratification
referendum. Almost half of all selfidentified Native Hawaiians in the 2010
Census and the 2014 ACS resided out of
state, but fewer than one-fifth of those
on the Native Hawaiian Roll
Commission’s Kanaiolowalu roll reside
out of state. Thus, while the rule does
not disenfranchise out-of-state Native
Hawaiians, it significantly discounts
their expected participation rate in
calculating numerical thresholds.
(10) Comment: Commenters suggest
that the threshold for HHCA Native
Hawaiians should be based solely on the
number of Hawaiian home lands
residential leases and the number of
individuals on the DHHL waitlist.
Response: The rule is designed to
reestablish a formal government-togovernment relationship with the entire
Native Hawaiian community, not just
with the community of Native
Hawaiians who reside or wish to reside
on Hawaiian home lands. The rule
requires separate tallying of the
ratification referendum ballots cast by
HHCA Native Hawaiians because
Congress defined the community using
the narrower definition (limiting the
population to what this rule refers to as
‘‘HHCA Native Hawaiians,’’ rather than
‘‘Native Hawaiians’’). Further narrowing
the population to exclude HHCA Native
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Hawaiians who never obtained or even
sought a Hawaiian home lands
residential lease would be inconsistent
with Congress’s approach.
(11) Comment: Commenters stated
that the numerical thresholds for
affirmative votes cast by HHCA Native
Hawaiians should be more than 30
percent of the equivalent numbers for
Native Hawaiians because the former
will ‘‘(a) be more aware that they
actually are Hawaiian, (b) [be] more
aware that there is a nation-building
initiative afoot, (c) have a bigger stake in
the issue, and (d) be more likely to be
currently part of an active Hawaiian
sovereignty or cultural group.’’
Response: Assuming that the
assertions listed in the comment are
true, they may render it easier for the
community to meet the 9,000affirmative-vote threshold. But these
assertions do not justify raising the
threshold, which is tied principally to
the size of the community of HHCA
Native Hawaiians, just as the 30,000affirmative-vote threshold is tied
principally to the size of the community
of Native Hawaiians. As explained in
detail above, the Department’s best
estimate of the size of the HHCA Native
Hawaiians is that it is about 30 percent
the size of the Native Hawaiian
community (including HHCA Native
Hawaiians).
(12) Comment: Several commenters
suggested that the proposed rule be
revised to allow the ratification
referendum to consider multiple
potential governing documents, and
permit adoption of the document that
secures a plurality of the vote.
Response: After evaluating comments
on this issue, the Department
determined to leave these provisions of
the rule unchanged.
The proposed and final rules leave
open the option of structuring a
referendum process and balloting in
such a way that the voters may cast
votes on multiple documents at once—
in effect, combining referenda on
several documents into the same
proceeding. Such an approach would
provide the members of the Native
Hawaiian community options while still
providing clear evidence of which
documents have broad-based support
from the community through a majority
vote.
But a simple plurality vote is not an
appropriate way to measure whether a
governing document has broad-based
community support. Under a ‘‘plurality
wins’’ rule, the number of votes
required to prevail becomes a function
of the number of options on the ballot,
not how strongly and broadly supported
any one option is. A majority vote is
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essential to show that the number of
Native Hawaiians supporting a
particular governing document exceeds
the number opposing it. If the Native
Hawaiian people want to consider more
than one governing document in a
single ratification referendum, they may
do so by putting each document to its
own up-or-down vote. Then, if only one
governing document garners a majority
of the votes cast, it satisfies the rule’s
majority-vote requirement. If two or
more governing documents each garner
a majority, then the community must
apply a previously announced method
for determining which governing
document prevails. For example, the
community could decide, prior to the
referendum, that the ‘‘winner,’’ as
between two (or more) governing
documents that each receive majority
support, will be the one that receives
the greatest number of affirmative votes.
This approach would also satisfy the
rule’s majority-vote requirement. But a
document that is not supported by
much more than a third, or a quarter, of
Native Hawaiian voters cannot form the
proper basis for a formal government-togovernment relationship with the
United States.
(13) Comment: Commenters suggest
that the rule should require a
supermajority vote, such as a two-thirds
majority, because a constitutional
ratification typically is held to a higher
standard than regular legislation, which
may pass with a simple majority vote.
Response: While the Department
recognizes that many constitutional
processes, in the United States and
elsewhere, require supermajority votes,
the exact fraction (two-thirds, threequarters, three-fifths, etc.) is often
highly controversial. Furthermore, the
broad-based-community support
requirement does not rely on just one
simple majority, but instead turns on
both (1) a required voter turnout of both
Native Hawaiians and HHCA Native
Hawaiians and (2) a requirement of a
minimum number of affirmative votes
from both Native Hawaiians and HHCA
Native Hawaiians. Indeed, if total
turnout in a ratification referendum fell
a bit short of 60,000 Native Hawaiians
(or 18,000 HHCA Native Hawaiians), the
30,000- and 9,000-affirmative-vote
thresholds would effectively serve as
supermajority-vote requirements. Also,
in calculating a simple majority, the
number of votes cast in favor of the
governing document must exceed the
sum of the number of votes cast against
the governing document and the
number of spoiled ballots (i.e., ballots
that were mismarked, mutilated,
rendered impossible to determine the
voter’s intent, or marked so as to violate
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the secrecy of the ballot); this, too, is
akin to a slight supermajority-vote
requirement.
Moreover, if the Native Hawaiian
community wishes to require a
supermajority vote to adopt its
governing document, it certainly may do
so without running afoul of the rule.
However, the rule itself does not impose
that requirement.
(14) Comment: Some commenters
objected to defining ‘‘Native Hawaiians’’
and ‘‘HHCA Native Hawaiians’’
separately for purposes of voting in the
ratification referendum and suggested
that all Native Hawaiians should have
‘‘equal input’’ in establishing a formal
relationship with the United States.
Some also suggested that the separate
voting unnecessarily divides the
community.
Response: In the response to
comments section in the proposed rule,
the Department explained the HHCA
beneficiaries’ unique status under
Federal law and the importance of
recognizing and protecting their Federal
rights and benefits in the rule. See 80 FR
59119–20, 59123–24, 59126. See also
response to comment (1)(f)(1). The
Department further explained that
Congressional definitions of the Native
Hawaiian community, in the HHCA and
other Acts of Congress, require that any
reestablishment of a formal governmentto-government relationship must take
account of both ‘‘HHCA Native
Hawaiians’’ and ‘‘Native Hawaiians,’’
respectively, to keep within this
statutory framework. 80 FR 59124.
Therefore, the rule requires that a
majority of the voting members of both
the ‘‘HHCA Native Hawaiians’’ and
‘‘Native Hawaiians’’ confirm their
support for the Native Hawaiian
government’s structure and fundamental
organic law in order to eliminate any
risk that the United States would
reestablish a formal relationship with a
Native Hawaiian government whose
form is broadly objectionable to either
HHCA Native Hawaiians or Native
Hawaiians, and to ensure that the
structure of any Native Hawaiian
government reflects the views of Native
Hawaiians and HHCA Native
Hawaiians. 80 FR 59120.
The rule also requires that the Native
Hawaiian community demonstrate in its
request to reestablish a formal
government-to-government relationship
that its constitution or other governing
document received broad-based
community support from both HHCA
Native Hawaiians and Native
Hawaiians. Thus, regardless of which
Congressional definition is used, a
majority of each defined group within
the voting members of the community
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must confirm their support for the
Native Hawaiian government’s structure
and fundamental organic law. Although
the distinction may be viewed
unfavorably by some commenters, the
Department chose to defer to the
Congressional definition appearing in
the HHCA in defining a class of eligible
voters. Accordingly, both ‘‘HHCA
Native Hawaiians’’ and ‘‘Native
Hawaiians’’ may participate and have an
opportunity to influence the content of
a constitution or other governing
documents and equally decide whether
that constitution or other governing
document is ratified. See § 50.16.
(15) Comment: Some commenters
supported the proposed rule’s approach
of providing for distinct votes by HHCA
Native Hawaiians and Native Hawaiians
to be tallied separately—a ‘‘double vote’’
based on the two relevant Congressional
definitions. These commenters stated
that this approach was an important
safeguard to ensure that ‘‘the rights of
the HHCA-eligible are not subsumed by
the rights of the non HHCA-eligible.’’
But others expressed the view that the
double-vote structure of the proposed
rule is ‘‘undemocratic’’ because it gives
greater voting and veto power to HHCA
Native Hawaiians.
Response: The rule provides that a
majority of the voting members of the
Native Hawaiian community recognized
by Congress must confirm their support
for the Native Hawaiian government’s
structure and fundamental organic law
in order to demonstrate ‘‘broad-based
community support.’’ Congress defines
the Native Hawaiian community in two
separate ways, and the Department is
simply using the definitions adopted by
Congress. Moreover, this approach is
consistent with many voting systems
that reflect existing geographic or legal
distinctions, such as the U.S.
Constitution’s provision that each State
has two senators irrespective of
population.
(16) Comment: Commenters state that
distinguishing HHCA Native Hawaiian
voters from other Native Hawaiian
voters imposes a significant
administrative burden of verifying
HHCA Native Hawaiian status and
cannot be done without substantial
monetary and other resources from the
Federal Government.
Response: The response to comment
(1)(c)(1) above explains how sworn
statements may be used to demonstrate
‘‘HHCA Native Hawaiian’’ or ‘‘Native
Hawaiian’’ status for purposes of voting
in the ratification referendum. The
sworn statement could be an option for
the Native Hawaiian community to
establish potential voters’ eligibility to
vote in the ratification referendum.
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Such sworn statements do not impose a
significant administrative burden and
do not require financial or other
assistance by the Federal Government.
(17) Comment: Some commenters
expressed the view that non-HHCA
Native Hawaiians should not be allowed
to ‘‘outvote’’ HHCA Native Hawaiians.
Response: Because the rule requires
that a majority of HHCA Native
Hawaiians who participate in the
ratification referendum must vote in
favor of the governing document, it is
effectively impossible for them to be
‘‘outvoted.’’ See response to comments
on § 50.13(4).
(18) Comment: Some commenters
stated that participants in the
ratification referendum for the
governing document, and candidates for
election to the government established
by that document, should be required to
show proof of political loyalty to the
Native Hawaiian community and proof
of affiliation with Native Hawaiian
cultural, social, or civic groups.
Commenters similarly suggested that the
numerical thresholds should not be
based on the total number of Native
Hawaiians, but rather on the total
number of Native Hawaiians who
voluntarily seek to participate in
exercising a Native status under the U.S.
Constitution. These commenters stated
that persons who do not seek to exercise
Native status under the U.S.
Constitution, or who vehemently
oppose their status as U.S. citizens
because they consider themselves
subjects of their own Kingdom, should
not be counted when determining
numerical thresholds.
Response: The Department considered
these comments and elected not to
revise the rule to include such
limitations. The rule is intended to
promote self-determination and selfgovernance for the entire Native
Hawaiian community, without
distinguishing between members of the
community on the basis of political
beliefs or points of view. All Native
Hawaiian adults should have the
opportunity to vote in any ratification
referendum, and this broad population
also provides a metric against which
broad-based community support is
measured. The goal of the ratification
referendum is to measure whether the
governing document has broad-based
support within the Native Hawaiian
community. It is appropriate to allow
the broadest possible participation in
that referendum. Commenters’
suggested requirement of proof of
political loyalty or affiliation with
Native Hawaiian cultural, social, or
civic groups would limit participation
in the referendum inconsistent with
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Congress’s recognition of the entire
community and the purposes of this
rule.
The Department did not include any
requirements relating to qualifications
for officers in the Native Hawaiian
government because such qualifications
are a matter of internal self-government.
These issues should be decided by the
Native Hawaiian community and
reflected in its governing document.
(19) Comment: Commenters stated
that the Department’s voting
requirement is contrary to the
methodology used for the Native
Hawaiian Roll Commission’s roll under
Act 195.
Response: On July 6, 2011, the Hawaii
legislature passed SB1520, which was
signed into law as Act 195 by Governor
Neil Abercrombie. That act recognized
Native Hawaiians as the indigenous
people of the Hawaiian Islands and
established the Native Hawaiian Roll
Commission to certify and publish a roll
of ‘‘qualified Native Hawaiians.’’
Although the findings in Act 195
reference the lack of a formal
government-to-government relationship
between a Native Hawaiian government
and the United States, the purpose of
Act 195 articulates the State’s interests
in implementing ‘‘the recognition of the
Native Hawaiian people by means and
methods that will facilitate Native
Hawaiian self-governance,’’ including
the ‘‘use of lands by the Native
Hawaiian people, and by further
promoting their culture, heritage,
entitlements, health, education and
welfare.’’ In 2013, the Hawaii legislature
adopted Act 77, which provided for the
inclusion of additional persons on the
roll compiled by the Native Hawaiian
Roll Commission.
The Act 195 process is a separate and
distinct process from that set out in this
rule, and has a separate, although
similar, purpose. The Department did
not conform the requirements in the
final rule to the provisions of any roll
or process now existing or underway
within the State of Hawaii. Nonetheless,
as the Native Hawaiian community
prepares its list of eligible voters, the
rule does not prohibit it, in the exercise
of self-determination over its own
affairs, from relying on a State roll or
State documentation that is based on
verified documentation of descent as an
alternative to doing its own verification
of descent. The rule is intended to
provide guidance and a process to a
Native Hawaiian government that
submits a request and can meet the
rule’s requirements. Such a request
could be submitted at any time in the
future, so the rule is not linked to any
existing processes or circumstances that
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could limit its future application. Nor
does the Department endorse any
particular roll or process over any other.
Commenters refer to the fact that the
rule’s requirements differ from those
applied by the Native Hawaiian Roll
Commission. Differing requirements
reflect the separate nature of the two
processes and their results. Further, the
Department notes that the requirements
applied by the Commission have
changed since the initial enactment of
Act 195, and may be subject to
subsequent changes. If the Department
receives a request seeking to reestablish
a government-to-government
relationship, the Department will
evaluate whether the request meets the
rule’s criteria and is consistent with this
part.
(h) U.S. Citizenship
Issue: The proposed rule required that
Native Hawaiians be U.S. citizens. The
Department received a significant
volume of comments requesting that the
Department eliminate this requirement
in the final rule, noting that Congress
frequently defined ‘‘Native Hawaiian’’
without requiring U.S. citizenship.
Comment: One commenter conducted
a survey of statutes containing a
definition of the term ‘‘Native
Hawaiian’’ and concluded that of 45
identified Federal statutes containing
such a definition, 31 do not limit that
definition to U.S. citizens. The
commenter also noted that the
definition of ‘‘native Hawaiian’’ in the
HHCA does not incorporate a U.S.
citizenship requirement, and that a
review of 48 tribal government
constitutions revealed that 92 percent
do not require U.S. citizenship as an
express condition of tribal membership.
The commenter stated that, in at least
one instance, the Federal Government
adjusted Federal law to accommodate a
Native government’s citizenship
definition that allowed for non-citizens
to become members (citing the Texas
Band of Kickapoo Act, Pub. L. 97–429,
96 Stat. 2269 (1983)). The commenter
also stated that ‘‘the practical reality is
that the number of Native Hawaiians
who are not U.S. citizens represents a de
minimis percentage of the overall
population of qualified Native
Hawaiians.’’
Response: After considering these
comments, the Department eliminated
the U.S. citizenship requirement in the
final rule. Section 4 of the Hawaiian
Organic Act declared all persons who
were citizens of the Republic of Hawaii
on August 12, 1898, citizens of the
United States. Further, Congress made
every ‘‘person born in the United States
to a member of an Indian, Eskimo,
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Aleutian or other aboriginal tribe’’ a
citizen with the enactment of the
Nationality Act of 1940, 54 Stat. 1137,
1138.6
Although some statutes require U.S.
citizenship as an element of the
statutory definition of membership in
the Native Hawaiian community, those
statutes generally involve eligibility for
federally funded programs or benefits.
See, e.g., 25 U.S.C. 4221(9) (requiring
U.S. citizenship for Native Hawaiians to
participate in programs under the
Native American Housing Assistance
and Self-Determination Act). It is
common for Congress to restrict
availability of programs or benefits to
U.S. citizens; by doing so, however,
Congress did not exclude non-citizens
from the Native Hawaiian community
with which the United States
established a special political and trust
relationship. Moreover, the Supreme
Court has explained that indigenous
communities generally may determine
their own membership as a matter of
internal self-governance. E.g., Santa
Clara Pueblo, 436 U.S. at 72 n.32. The
Department determined that
Congressional requirements for federally
funded programs or benefits do not
override this important principle of selfgovernance, and eliminated the
citizenship requirement in the final
rule.
Although the Department considers
membership criteria to be matters of
internal self-governance, to the extent
Federal law incorporates U.S.
citizenship as a requirement for
participation in a Federal program or for
eligibility for Federal benefits, that
requirement remains in effect,
notwithstanding membership provisions
adopted by a Native Hawaiian
government.
(i) Roll
Issue: Commenters expressed views
on the proposed rule’s reliance on a
State roll, also called Kanaiolowalu,
compiled by the Native Hawaiian Roll
Commission (NHRC).
(1) Comment: Some commenters
stated that they objected to provisions of
the proposed rule, including
§ 50.12(a)(1)(ii) and (b), ‘‘that would
allow a roll of Native Hawaiians
certified by a State of Hawaii
commission like Kanaiolowalu that is
being used by Nai Aupuni to determine
participation’’ and requested that these
provisions be removed. The commenters
stated that it was not appropriate to
accord special status to a roll compiled
by a State agency, and also opposed any
6 Congress made all non-citizen Indians citizens
by the Act of June 2, 1924, 43 Stat. 253.
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use of the NHRC Roll because of the
nature of the process used by the NHRC.
Response: The Department considered
these comments and determined it
appropriate to revise these provisions of
the proposed rule to address this issue.
The Department agrees with this
comment in part. The proposed rule
incorporated distinct standards for use
of a roll compiled by a State agency. In
response to these comments, the rule
now provides that the Native Hawaiian
community will compile its list of
eligible voters. The rule provides a
uniform standard to govern the list of
eligible voters for the ratification
referendum, which would apply
irrespective of who prepared the list.
That approach allows the Native
Hawaiian community the freedom to
determine how it will develop a list for
use in ratification of its governing
documents.
The rule does not, however, bar the
use of a roll that incorporates work by
State agencies, especially if it is efficient
to do so. For instance, the Department
sees little benefit in the Native Hawaiian
community redoing work done by the
State that verified Native Hawaiian
ancestry, including its determination
that an individual qualifies as an HHCA
Native Hawaiian. To the extent a State
roll is based on documented ancestry,
the Native Hawaiian community may
rely on it, if it so chooses. Such reliance
will facilitate the process of preparing
its list of voters, particularly if relevant
records are within the exclusive control
of State agencies, and will minimize the
burdens on individual Native Hawaiians
who previously submitted documentary
evidence and were determined to be
qualified. The Department respects the
Native Hawaiian community’s ability to
reorganize its government for the
purposes of reestablishing a formal
government-to-government relationship
as it sees fit, and therefore defers to the
community as to whether and to what
extent it wishes to rely on State sources
to tailor a list of eligible voters for
ratification purposes. The Department
revised § 50.12 to address these
comments.
(2) Comment: Some commenters
questioned the methods used to compile
the NHRC roll, stating that the names of
deceased individuals, minors, and
persons who did not consent to be listed
appear on the roll. Others stated that
‘‘most Hawaiians have not agreed to’’
the NHRC roll process and that the roll
will not benefit the Native Hawaiian
people generally.
Response: The Department reviewed
these comments and made changes in
the final rule in § 50.12.
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For instance, the Department
acknowledged commenters’ concerns by
providing a uniform standard for
preparation of the list of eligible voters
by the Native Hawaiian community. The
criteria for the list provide that it must
not include adults who object to being
listed, and revised § 50.12(a) provides
that the community must make
reasonable and prudent efforts to ensure
the integrity of its list. Importantly, the
proposed rule did not require use of any
State roll; and the final rule permits, but
does not require, the Native Hawaiian
community to use a State roll, with
conditions and modifications, for
purposes of demonstrating how it
determined who could participate in
ratifying a governing document. See
§ 50.12(a).
Moreover, the Department defers to
the Native Hawaiian community itself to
establish the process by which it will
compile any list of voters, subject to
certain requirements set forth in the
final rule. These requirements address
some of issues raised by commenters
relating to the NHRC. For instance, the
proposed and final rules both contain
provisions that are intended to provide
for the integrity of the process of
compiling the list and to protect the
integrity of the voting process itself. The
rule permits the community to rely on
documented sources that it determines
are reliable in compiling its list.
If a reorganized government submits a
request to the Secretary to reestablish a
formal government-to-government
relationship, the rule provides that the
request must include an explanation of
the manner in which the rule’s
requirements were satisfied. The public
will have an opportunity to comment on
any request the Secretary receives.
Individuals who continue to have
concerns about the process used in
compiling the voter list may submit
comments at that time. In making a
decision, the Secretary will review not
only the specific request but also the
overall integrity of the ratification
process to determine if it was free and
fair and otherwise complies with the
rule’s requirements.
(3) Comment: A commenter said that
it was not appropriate for the roll used
in conducting the ratification
referendum under § 50.12 to incorporate
any considerations of racial ancestry,
and that use of the NHRC roll was
inappropriate for this reason.
Response: To the extent that these
comments suggest that the Department
must reestablish a formal governmentto-government relationship with a
government that includes non-Native
Hawaiians as members, that result is
precluded by longstanding
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Congressional definitions of Native
Hawaiians, which require a
demonstration of descent from the
population of Hawaii as it existed before
Western contact. The Department
adheres to Congress’s definition of the
nature and extent of the Native
Hawaiian community.
(4) Comment: A commenter stated
that ‘‘the Supreme Court’s injunction [in
the Akina litigation] should caution any
prudent public official to question the
wisdom of using Hawaii’s tainted
registration roll for any purpose
whatsoever.’’
Response: As explained above, the
proposed and final rules do not require
the use of any particular roll, including
the NHRC roll. The final rule requires
the Native Hawaiian community to
prepare its list of voters and sets out the
requirements for that list, but it does not
preclude reliance on any pre-existing
roll as long as that roll meets the
standards in the rule.
The Department need not and will not
address the merits of the Akina
litigation in this rulemaking. The
injunction referenced by the commenter
preserved the status quo during a
pending appeal, and did not resolve the
merits of the case. The United States’
views on the Akina litigation are
available for review in briefs submitted
to the United States District Court for
the District of Hawaii and to the United
States Court of Appeals for the Ninth
Circuit.
(5) Comment: One commenter
objected to the use of the Kanaiolowalu
because it based eligibility to register in
part on a declaration of ‘‘civic, cultural,
or social connection as demonstrated in
their unrelinquished sovereignty.’’
Response: The proposed rule did not
require reliance on the Kanaiolowalu or
any other state roll as the sole means to
determine eligibility to vote in the
ratification referendum. Sections 50.12;
50.14(b)(5)(iii). The preamble to the
proposed rule at 80 FR 59122 provided
expressly that such a declaration as
referred to by the commenter was not
required for purposes of participation in
the ratification referendum. Further, the
proposed rule placed express conditions
on any use of a State roll, such as the
Kanaiolowalu, see § 50.12(b)(2).
Nevertheless, the comments indicate
some confusion on the permissible use
of any State roll under the terms of the
proposed rule.
Accordingly, the final rule includes a
revised § 50.12(a) that provides that the
Native Hawaiian community itself
prepares the list of eligible voters. It also
clarifies alternative means by which an
individual Native Hawaiian can
demonstrate a right to vote in the
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referendum, even if that individual is
not on a roll that the community may
choose as a foundation from which to
build its complete voter list. Finally, the
final rule includes, in response to other
comments, sworn statements for selfcertification or for sponsoring another,
and reliance on current or prior
enrollment as a Native Hawaiian in a
Kamehameha Schools program, certain
birth certificates, and court orders. Such
changes also address the commenter’s
concerns. In sum, even if a declaration
as described by the commenter were
required for purposes of being on a State
roll that the community may rely on
under § 50.12(a), the Native Hawaiian
community must also accept, for
purposes of the referendum ratification,
other persons who demonstrate
eligibility based on HHCA-eligibility or
Native Hawaiian ancestry.
(j) Nai Aupuni
Issue: Commenters expressed concern
about the nation-building process
facilitated by Nai Aupuni, a nonprofit
organization that convened a
constitutional convention, known as an
Aha, of Native Hawaiians to reorganize
as a government.
(1) Comment: Several commenters
indicated their belief that the purpose of
the proposed rule was to design,
implement, or evaluate the outcome of
the Aha coordinated by Nai Aupuni.
They suggested that the proposed rule
had a predetermined outcome —either
that no entity would be able to meet the
criteria to reestablish a formal
relationship with the United States,
particularly because doing so would
pose a significant financial impediment,
or that only the entity that emerged from
the Aha coordinated by Nai Aupuni
would qualify.
Response: These commenters
misunderstood the proposed rule. The
process set forth in the proposed rule is
applicable to any entity that results from
the current government-reorganization
process, or from any other such process
in the future. The final rule does not
change this broad applicability. It is
entirely up to the Native Hawaiian
community to determine whether or
when it will reorganize a formal
government, and it may seek financial
assistance from various sources to fund
its future governmental activities,
including conducting the ratification
referendum. Similarly, it is entirely up
to the Native Hawaiian community to
determine the form and functions of
such government and to avail itself of
the process established in the final rule.
The rule does not infringe on the selfdetermination of the Native Hawaiian
community, and addresses only those
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matters necessary to reestablishing a
formal government-to-government
relationship with the United States.
(2) Comment: Some commenters
stated that Nai Aupuni did not represent
their views and could not speak for
them without their consent. Others
expressed concerns about alleged flaws
in the nation-building process
conducted by Nai Aupuni.
Response: Section 50.11 provides that
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.
This general requirement helps to
ensure that the process for drafting the
governing document includes input
from representative segments of the
community. The regulations do not set
specific requirements relating to the
process of nation-building. The process
of nation-building is one for the Native
Hawaiian community to undertake on
its own, and the Department will defer
to the community to carry out that
process. Accordingly, the proposed rule
sets forth only general requirements for
submitting a request to reestablish a
formal government-to-government
relationship. The final rule retains these
limited general requirements. The
Department takes no position in the rule
as to whether any ongoing nationbuilding process might meet those
requirements. If Native Hawaiians do
not agree with a particular nationbuilding process or approach, they will
have the opportunity to vote in a
referendum and express that view.
If a reorganized government submits a
request to the Secretary to reestablish a
formal government-to-government
relationship, the rule provides that the
request must include an explanation of
the manner in which these requirements
were satisfied. The public will have an
opportunity to comment on any request
the Secretary receives. Individuals who
have concerns about the process used by
the Native Hawaiian community may
submit comments at that time.
(k) Land status
Issue: Commenters objected to
§ 50.44(f) of the proposed rule, which
expressly preserves the title,
jurisdiction, and status of Federal lands
and property in Hawaii.
(1) Comment: Some commenters
stated that the proposed rule should
provide for certain Federal lands to be
transferred to Native Hawaiians or
Native Hawaiian entities, and
questioned the legal validity of Federal
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acquisition of lands formerly owned by
the Kingdom of Hawaii and its
monarchs.
Response: Changes in title to Federal
lands require statutory authority. This
rule does not alter any existing Federal
law that authorizes the transfer of
Federal property. It is possible,
however, that a future Native Hawaiian
Governing Entity may be qualified to
receive Federal property under
provisions of Federal law.
With respect to comments questioning
the legal status of existing Federal
property, the Supreme Court recently
discussed this issue in Hawaii v. Office
of Hawaiian Affairs, 556 U.S. 163
(2009), and found that title was properly
in the Federal government. Therefore,
only Congress can resolve the
commenters’ concerns.
Several commenters expressed the
importance of allowing a future Native
Hawaiian sovereign to hold property,
noting that Native Hawaiians are
spiritually connected to the land and
that title to land can facilitate selfgovernance. Although the rule does not
affect Federal lands, a future Native
Hawaiian government could acquire
property by other methods. For
example, an existing provision of State
law provides for the transfer of one of
the Hawaiian Islands, Kahoolawe, to
‘‘the sovereign native Hawaiian entity
upon its recognition by the United
States and the State of Hawaii.’’ Haw.
Rev. Stat. 6K–9 (2016). A future Native
Hawaiian government could also
acquire property by other means, and
the rule does not affect its ability to do
so.
(2) Comment: Commenters requested
that the final rule omit § 50.44(f)
entirely, while others suggested revising
§ 50.44(f) in the final rule by changing
the word ‘‘will’’ to ‘‘does’’ and adding
the word ‘‘current’’ before ‘‘title’’ so the
paragraph reads: ‘‘Reestablishment of
the formal government-to-government
relationship does not affect the current
title, jurisdiction, or status of Federal
lands and property in Hawaii’’
(emphasis added).
Response: Section 50.44(f) expressly
preserves the title, jurisdiction, and
status of Federal lands and Federal
property in Hawaii. Therefore, because
reestablishment of the formal
government-to-government relationship,
by itself, would not affect title,
jurisdiction, or status of Federal lands
either at the time of reestablishment of
the relationship or at any time
thereafter, the Department did not revise
§ 50.44(f) with ‘‘current’’ as suggested.
The Department did, however, revise
this paragraph by changing ‘‘will’’ to
‘‘does’’ to make express that nothing in
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the rule itself would affect the status of
Federal lands and property.
As stated above, the Department
appreciates that members of the
community believe it is important to
secure a land base for the future
reorganized Native Hawaiian
government; however, providing for
jurisdiction or changing the status of
Federal lands and property may only
occur with statutory authorization.
Following reestablishment of a
government-to-government relationship,
the Native Hawaiian Governing Entity
may advance any concerns it may have
on land-related issues to the executive
and legislative branches of the United
States Government on a government-togovernment basis.
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(l) Gaming
Issue: The Department solicited
public comments in the proposed rule,
80 FR 59121, about whether the
reestablishment of a formal governmentto-government relationship would
entitle the Native Hawaiian government
to conduct gaming under the Indian
Gaming Regulatory Act (IGRA).
Comment: Some commenters
responded that IGRA should apply,
others commented that the Native
Hawaiian Governing Entity’s inherent
sovereign powers would include the
power to conduct gaming activities, and
that this inherent power could not be
limited in any way, or be ‘‘subordinate’’
to State law. One commenter suggested
that ‘‘[g]aming by the Native Hawaiian
government should be left to
. . . negotiations with the Federal
government.’’
Response: The Department concludes
that IGRA does not apply. For the
reasons set forth below in Section
(IV)(C), the Native Hawaiian Governing
Entity would not be within the
definition of ‘‘Indian tribe’’ appearing in
IGRA, which is limited to those tribes
that are ‘‘recognized as eligible by the
Secretary for the special programs and
services provided by the United States
to Indians because of their status as
Indians.’’ 25 U.S.C. 2703(5); 25 CFR
292.2. IGRA was enacted to balance the
interest of states and tribes and to
provide a framework for regulating
gaming on ‘‘Indian lands.’’ There are no
such lands in Hawaii. Even if it could
be argued that certain Hawaiian lands
are similar to ‘‘Indian lands’’ within the
meaning of IGRA, IGRA does not permit
gaming in any State that prohibits all
forms of gaming. See 25 U.S.C.
2710(b)(1)(A) and (d)(1)(B). Hawaii
statutes broadly prohibit all forms of
gaming. See State v. Prevo, 361 P.2d
1044, 1048–49 (Haw. 1961).
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(m) Reestablishment of a Governmentto-Government Relationship
Issue: Commenters asked specific
questions related to the reestablishment
of a formal government-to-government
relationship and its potential impacts.
(1) Comment: Commenters asserted
that the HHCA authorized land to be
taken into trust for the benefit of HHCA
beneficiaries, including acquisitions and
land exchanges, citing to HHCA Section
206. These commenters suggest that the
HHCA is sufficient legal authority for
the Department to place lands into trust
for the benefit of the Native Hawaiian
Governing Entity without further
Congressional authorization.
Response: The Department recognizes
the vital importance of a land base to
the governments of indigenous
communities in the United States,
including the Native Hawaiian
community. There is no present Federal
statutory authority, however, for taking
land into trust for the Native Hawaiian
community, including the HHCA,
which applies to the Hawaiian home
lands that are under State (not Federal)
jurisdiction. A primary source of the
Department’s authority to take land in
trust for tribes in the continental United
States is the IRA, and Native Hawaiians
are outside its scope. See Kahawaiolaa
v. Norton, 386 F.3d at 1280 (noting that
the IRA’s geographic-scope provision,
25 U.S.C. 473, expressly excluded
territories but included Alaska, and that
the definition of ‘‘Indian’’ in 25 U.S.C.
479 specifically referenced aboriginal
peoples of Alaska, a territory like
Hawaii at the time the IRA was enacted,
and finding that, by its terms, the IRA
‘‘did not include any native Hawaiian
group’’). Consequently, the Secretary
does not have authority to take land into
trust for Native Hawaiians under the
IRA.
(2) Comment: The Department
received a number of comments that
indicated a belief that the final rule
would alter an existing regulatory
structure. The comments did not,
however, state specifically which
existing regulations would be altered.
Response: The rule does not alter an
existing regulatory structure. It creates a
new, one-time procedure for
reestablishing a formal government-togovernment relationship with the Native
Hawaiian community. No such rule is
currently in place. The Department has
regulations in place for facilitating the
reorganization of tribal governments,
but those regulations by their terms do
not apply to the Native Hawaiian
community. See 25 CFR part 81. In
addition, Department regulations under
part 83 do not apply to Native
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Hawaiians, nor do those regulations
apply to an Indian tribe that already has
been recognized by Congress. 25 CFR
part 83. The final rule is not an
amendment to those regulations, but a
freestanding rule that takes into account
the unique status of the Native
Hawaiian community.
(3) Comment: Some commenters
indicate concern that development of a
procedure to reestablish a formal
government-to-government relationship
with the Native Hawaiian community
would surrender either Native Hawaiian
sovereignty or the future ability of some
groups to assert self-governance rights.
Response: The premise of this
rulemaking process is that Native
Hawaiian people retain their inherent
sovereignty, which Congress recognizes
and acknowledges through enacting
over 150 statutes, thereby creating a
special political and trust relationship
with the Native Hawaiian community.
The rule creates a process to reestablish
a formal government-to-government
relationship with a future Native
Hawaiian reorganized government. The
existence of such a process, however,
does not change the nature or the
inherent sovereignty of the Native
Hawaiian community.
(4) Comment: Some commenters
expressed concern that the future Native
Hawaiian government would not have
the ability to bring suit to seek redress
for past wrongs. They referenced claims
relating to ‘‘1.8 million acres of land
ceded by the Republic of Hawaii to the
United States,’’ to ‘‘Hawaiian
Homelands used now for airports or
harbors,’’ to ‘‘people who have died
without an award while waiting on the
list of Hawaiian Homes,’’ and other
claims.
Response: Neither the proposed rule
nor the final rule presumes to address
possible claims by Native Hawaiians for
past wrongs. The rule provides, in
§ 50.44(a), that the Native Hawaiian
Governing Entity will have ‘‘the same
inherent sovereign governmental
authorities’’ as do federally-recognized
tribes in the continental United States.
The Native Hawaiian Governing Entity
will have the capacity to sue and be
sued (subject to sovereign immunity and
other jurisdictional limitations), as do
other indigenous sovereigns in the
United States. The inherent
governmental authorities of tribes in the
continental United States include the
ability to file suit to seek redress for past
wrongs. This rule does not alter the
sovereign immunity of the United States
or of the State of Hawaii against claims
for past wrongs. The Department will
not address the validity of particular
legal claims identified by commenters
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because they are beyond the scope of
the proposed rule.
(5) Comment: Multiple comments
requested that the proposed rule be
clarified to indicate that it was not
intended to affect any claims that the
Native Hawaiian people may have for
redress under Federal law.
Response: Any existing claims that
the Native Hawaiian people may have
for redress under Federal law, either
individually or collectively, are not
addressed by this rule. The Department
makes no comment as to the potential
merits of any such claims, which are
properly addressed by the legislative or
judicial branches of the Federal
Government rather than in this
rulemaking. The existence and
consideration of any claims that may
exist are not related to the final rule and
are separate and distinct matters.
Accordingly, the Department made no
changes to the proposed rule in
response to this comment.
(6) Comment: Some commenters
suggested that once a formal
relationship is reestablished pursuant to
the rule, the Native Hawaiian Governing
Entity could rely on the Trade and
Intercourse Act, 25 U.S.C. 177, to trigger
lawsuits alleging unconstitutional
takings of Federal, State, and private
lands in Hawaii.
Response: The Trade and Intercourse
Act requires Congressional ratification
of transfers of real property from Indian
tribes. The U.S. Supreme Court
recognized in Hawaii v. Office of
Hawaiian Affairs, 556 U.S. 163 (2009),
that claims to title of public lands were
extinguished when Hawaii was annexed
as a United States territory. As a result,
subsequent transfers of these lands are
not subject to the Act. Moreover, the Act
does not apply to lands transferred into
private ownership before annexation, as
Hawaii was then a separate sovereign
that was not subject to the requirements
of the Act.
(7) Comment: Several commenters
requested that the rule address
procedures for consultation between
Federal agencies and the Native
Hawaiian Governing Entity, following
reestablishment of a government-togovernment relationship.
Response: Procedures for consultation
with federally-recognized tribes in the
continental United States are set forth
generally in Executive Order 13175. In
addition, many Federal agencies have
their own policies governing tribal
consultation. The Department of the
Interior and other Federal agencies
already consult with Native Hawaiian
organizations under these existing
policies. Should a government-togovernment relationship be
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reestablished with a Native Hawaiian
government pursuant to this Rule,
Federal agencies would evaluate
whether consultation could occur under
existing consultation policies, or
whether those policies would need to be
modified.
(8) Comment: Several commenters
expressed the view that Native
Hawaiians should be eligible for
programs available to Native Americans
under Federal law.
Response: Congress provides a
distinct set of programs and benefits for
Native Hawaiians. In some instances,
Congress provides for Native Hawaiians
to participate in programs directed to
Native Americans generally. In others,
Congress provides a parallel set of
benefits to Native Hawaiians within the
framework of legislation that also
provides programs to other Native
groups. As explained elsewhere in the
Preamble, the Department determined
that Congress included Native
Hawaiians in a large number of Federal
programs in various ways. In some
instances, Congress expressly provided
for Native Hawaiians to receive benefits
as part of a program provided to Native
Americans generally; in others,
Congress has provided a distinct
program or set of programs, parallel to
those that exist for other Native
American groups. See Section (IV)(C).
To the extent that Native Hawaiians
are not eligible for certain programs, it
follows that this treatment reflects a
conscious decision by Congress.
Moreover, because of the structure of
many Federal programs, to treat a Native
Hawaiian government or its members as
eligible for programs provided generally
to federally-recognized tribes or their
members in the continental United
States could result in duplicative
services or benefits. The Department
concludes that it is for Congress to
decide to include Native Hawaiians in
additional Federal programs directed
towards Native Americans.
(9) Comment: The List Act states:
‘‘The Congress finds that . . . (3) Indian
tribes presently may be recognized by
Act of Congress; by the administrative
procedures set forth in part 83 of the
Code of Federal Regulations
denominated ‘Procedures for
Establishing that an American Indian
Group Exists as an Indian Tribe.’’ List
Act findings, sec. 103. A commenter
expressed concern that this language is
inconsistent with the Department’s
proposal in the notice of proposed
rulemaking.
Response: The Department notes that
the quoted language refers to the
Department’s existing part 83
procedures, and that Congress’s
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reference to part 83 signals
Congressional approval of the
Department’s authority to adopt such
procedures by regulation. The
Department adopted part 83, following
notice and comment, through the
exercise of its delegated authorities.
This rule is adopted through the same
process and under the same authorities.
Nonetheless, the significant difference
between part 83 petitioners and the
Native Hawaiian community is that
Congress itself has already recognized,
and established a special political and
trust relationship with, the Native
Hawaiian community; the finding cited
by the commenter also references the
power of Congress in this respect.
Therefore, this rule addresses a
fundamentally different situation than
that addressed in part 83.
(10) Comment: A commenter states
that the Department’s proposed
approach of including Native Hawaiians
within the scope of the Indian Civil
Rights Act, but not within the scope of
other Federal statutes, did not reflect a
consistent approach to the application
of existing Federal statutes addressing
Native Americans.
Response: To determine which
statutes will apply to the Native
Hawaiian Governing Entity, the
Department considers each statute’s
language defining its scope of
application. The requirements of the
Indian Civil Rights Act apply to ‘‘Indian
tribes,’’ and that act uses broad language
to define the term ‘‘Indian tribe’’: ‘‘Any
tribe, band or other group of Indians
subject to the jurisdiction of the United
States and recognized as possessing
powers of self-government.’’ This
language would include the Native
Hawaiian Governing Entity. By contrast,
many other Federal statutes define the
term ‘‘Indian tribe’’ by referring to tribes
that are ‘‘eligible for the special
programs and services provided to
Indians because of their status as
Indians,’’ and as discussed in Section
(IV)(C), Congress provided for the
Native Hawaiian community under a
separate panoply of programs and
services.
(11) Comment: A commenter
expressed concern about the possibility
that the Indian Child Welfare Act and
the Violence Against Women Act would
become applicable in Hawaii by virtue
of reestablishment of a government-togovernment relationship, stating that the
application of these statutes would have
disruptive effects in Hawaii.
Response: Neither the Indian Child
Welfare Act nor the Violence Against
Women Act’s tribal-criminaljurisdiction provision would apply to
the Native Hawaiian Governing Entity.
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The Indian Child Welfare Act applies
only with respect to ‘‘Indian tribes,’’ and
defines ‘‘Indian tribe’’ to mean ‘‘any
Indian tribe, band, nation, or other
organized group or community of
Indians recognized as eligible for the
services provided to Indians by the
Secretary because of their status as
Indians, including any Alaska Native
village as defined in section 1602(c) of
title 43.’’ 25 U.S.C. 1903(8). Because the
Native Hawaiian Governing Entity
would not be an entity ‘‘recognized as
eligible for the services provided to
Indians by the Secretary because of their
status as Indians,’’ the statute would not
apply. And the Violence Against
Women Act’s provision recognizing
tribal criminal jurisdiction over certain
domestic-violence crimes applies only
to conduct that ‘‘occurs in the Indian
country of the participating tribe.’’ 25
U.S.C. 1304(c)(1), 1304(c)(2)(A). As
explained in these responses to
comments, there will not be Indian
country in Hawaii absent some
affirmative Congressional action, and
these provisions will therefore not apply
unless Congress determines otherwise.
(12) Comment: Commenters requested
that the language of § 50.44(a) be
amended to state: ‘‘§ 50.44 (a) Upon
reestablishment of the formal
government-to-government relationship,
the Native Hawaiian Governing Entity
will have the same government-togovernment relationship under the
United States Constitution and Federal
law as the government-to-government
relationship between the United States
and a federally-recognized tribe, with
the same privileges, immunities and
inherent sovereign governmental
authorities.’’ Commenters stated that
this language will clarify that the Native
Hawaiian government will have both
the same privileges and immunities as
other federally-recognized tribes in the
continental United States, and possess
the same inherent sovereign
governmental authorities.
Response: The Department agrees
that, following the reestablishment of a
formal government-to-government
relationship pursuant to this Part, the
Native Hawaiian government will have
the same inherent sovereign
governmental authorities as federallyrecognized tribes in the continental
United States, as set forth in § 50.44(a).
Those authorities include certain
inherent attributes of sovereignty, such
as sovereign immunity. Likewise, Native
Hawaiian rights, protections, privileges,
immunities, and benefits under Article
XII of the Constitution of the State of
Hawaii would not be affected by
reestablishment of a government-togovernment relationship. The
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Department determined that the existing
language of § 50.44(a) adequately
describes the inherent authorities of the
Native Hawaiian Governing Entity, and
therefore made no changes in the rule.
(13) Comment: A few commenters
expressed concern that existing Federal
and State laws would no longer apply
to members of the Native Hawaiian
Governing Entity.
Response: Members of the Native
Hawaiian Governing Entity would
remain subject to applicable Federal and
State law, as well as laws enacted by the
Native Hawaiian Governing Entity.
For example, the Native Hawaiian
Governing Entity would have authority
to exercise jurisdiction over
relationships between its members by
enacting family laws, contract laws, or
other laws that would govern those
relationships. To the extent that the
Native Hawaiian Governing Entity
adopts such laws, they generally would
apply as between its members
notwithstanding contrary State law. See
Kelsey v. Pope, 809 F.3d 849 (6th Cir.
2016); John v. Baker, 982 P.2d 738, 749
(Alaska 1999).
Because there is no Indian country in
Hawaii, upon reestablishing a
government-to-government relationship
with the United States, the Native
Hawaiian Governing Entity would not
have territorial jurisdiction. While
Congress imposed certain restrictions on
alienation of Hawaiian home lands, title
to those lands is held by the State, not
the Federal Government. Therefore, the
State retains jurisdiction over Hawaiian
home lands unless Congress provides
otherwise in the future. See response to
comment (l)(2).
(14) Comment: One commenter stated
that the rule would ‘‘open a Pandora’s
box’’ for other groups, such as the
Amish and Cajuns, to seek tribal status.
Others expressed similar concerns.
Response: These commenters do not
appear to appreciate the important
distinction between communities based
on shared history and culture and a
political community that represents the
continuous existence of an inherent
indigenous sovereign, such as the
Native Hawaiian community. The U.S.
Constitution expressly references Indian
tribes and provides for relationships
with them; the Amish, Cajuns, and
similar groups do not have native or
indigenous status under Federal law.
See further discussion of the continuing
Native Hawaiian political community in
Section (II).
(15) Comment: Some commenters
expressed concern that the rule would
divide Hawaii’s integrated,
multicultural Hawaiian society and
create unnecessary social divisions
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between Native Hawaiians and nonNative Hawaiians.
Response: The rule is based on the
pre-existing sovereign authority of the
Kingdom of Hawaii that was evidenced
by treaties with the United States and
later suppressed as part of the
annexation process; it is not creating
any ‘‘social divisions’’ as the commenter
suggests. The rule provides a process for
reestablishing a formal government-togovernment relationship between two
sovereigns and will assist the Native
Hawaiian community in preserving
their unique culture, language, and
traditions. Congress found that the
constitution and statutes of the State of
Hawaii similarly ‘‘protect the unique
right of the Native Hawaiian people to
practice and perpetuate their cultural
and religious customs, beliefs, practices,
and language.’’ Native Hawaiian Health
Care Act, 42 U.S.C. 11701(3); see Native
Hawaiian Education Act, 20 U.S.C.
7512(21). Consistent with these
findings, the Department agrees with the
commenter who observed that ‘‘[t]he
Native Hawaiian people and their
culture are the foundation of the culture
of the State of Hawaii, and an integral
part of what makes Hawaii work as a
multicultural society . . . . A federallyrecognized Native Hawaiian government
will help to improve the Native
Hawaiian people’s ability to strengthen
and perpetuate the indigenous culture
and language of these islands, thereby
strengthening Hawaii for all.’’
(16) Comment: Commenters
questioned the use of the term
‘‘reestablish’’ in referring to a future
government-to-government relationship
between the United States government
and a Native Hawaiian government.
They noted that the relationship
between the United States government
and the Hawaiian Kingdom was a treaty
relationship between nation-states, and
that a future relationship with a Native
Hawaiian government would have a
different character.
Response: The Department agrees that
the formal government-to-government
relationship with a Native Hawaiian
government would have very different
characteristics from the government-togovernment relationship that formerly
existed with the Kingdom of Hawaii,
and would much more closely resemble
the relationship with federallyrecognized tribes in the continental
United States. The Department’s use of
the term ‘‘reestablish’’ is intended to be
understood in this broader context.
The Department notes that, due to the
unique history of Hawaii, either the
term ‘‘reestablish’’ or the term
‘‘establish’’ could be used to describe
the formalization of the relationship
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between the United States Government
and a Native Hawaiian Governing
Entity, and believes that either term is
appropriate. The relationship between
the United States and the Native
Hawaiian community is reflected in a
significant number of Congressional
actions recognizing and providing
benefits to Native Hawaiians, though the
Native Hawaiian community has lacked
a unified formal government since the
nineteenth century. The Native
Hawaiian community historically had a
unified formal government that was
recognized through formal treaties with
the United States. Due, in part, to
actions taken by representatives of the
United States, the Kingdom of Hawaii
was overthrown, and the Native
Hawaiian community has not
maintained a unified formal government
over the past several generations. The
United States relationship with a Native
Hawaiian Governing Entity would be
‘‘reestablished’’ in the sense that the
United States previously maintained a
formal relationship with a Native
Hawaiian government, not that the
former relationship between the United
States and the Kingdom of Hawaii
would resume or be resurrected.
(17) Comment: One commenter stated
that because the Kingdom of Hawaii
included native-born and naturalized
non-Hawaiian citizens, many of whom
served in high-ranking positions in the
Kingdom government, no ‘‘Native
Hawaiian’’ government consisting solely
of Native Hawaiians could now
‘‘reorganize’’ itself and ‘‘reestablish’’ a
formal government-to-government
relationship with the United States.
Other commenters similarly asserted
that the ‘‘multiethnic’’ nature of the
Kingdom at the time of its overthrow
disqualifies any future Native Hawaiian
government from exercising selfdetermination and self-governance
pursuant to Federal law, and that
consequently the Department lacks the
authority to promulgate this rule.
Response: The Department does not
agree that the presence of non-Native
Hawaiians in the Hawaiian Kingdom
indicates that the Native Hawaiian
community lost its character as a selfgoverning indigenous community. For
example, many Indian tribes in the
continental United States welcomed
outsiders and intermarried with nonIndians, and others found themselves
living in close association with nonIndians as a result of patterns of
migration and settlement. Those
circumstances did not preclude those
Indian tribes from continuing to exist as
self-governing and sovereign nations.
Moreover, Congress established a
special political and trust relationship
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with the Native Hawaiian community,
and thus determined that the
community’s political existence was not
negated by the historical events
identified by these commenters. It
follows that the Department has
authority to reestablish a formal
government-to-government relationship
with a future reorganized Native
Hawaiian government.
That the Kingdom of Hawaii included
non-Hawaiian citizens among its
citizenry does not establish that the
Native Hawaiian community ceased to
exist or exercise political authority. As
set forth in the background discussion
of this rule, the Native Hawaiian
community continued to demonstrate
its existence as a distinct political
community separate and apart from
non-Native Hawaiians before, during,
and after the Kingdom’s overthrow.
Moreover, though non-Native Hawaiians
participated in governance of the
Kingdom, they were considered
‘‘foreigners’’ and their rights were
limited. See I Ralph S. Kuykendall, The
Hawaiian Kingdom 227–41 (1947)
(citing Constitution and Laws of the
Hawaiian Islands, Established in the
Reign of Kamehameha III (1842)). The
rights of such ‘‘foreigners’’ evolved over
time, but the Kingdom was a monarchy,
and only Native Hawaiians served as
monarchs. The United States had a
treaty relationship with the Kingdom of
Hawaii that persisted through active
involvement by Native Hawaiians in the
Kingdom’s government. The fact that
‘‘foreigners’’ lived and participated in
the political process in Hawaii at the
time does not alter the fundamental fact
that the United States had a prior
political relationship with the Native
Hawaiian community’s government in
the 1800s.
(18) Comment: Some commenters
objected to the proposed rule’s
limitation on reestablishing a
government-to-government relationship
with a single Native Hawaiian
government. Among these commenters,
some proposed that the Secretary allow
separate government-to-government
relationships with HHCA Native
Hawaiians and with other, non-HHCA
Native Hawaiians based on Congress’s
separate treatment of these groups.
Other commenters stated that Native
Hawaiians did not have a single unified
government until after contact with
Western societies, so that there is no
historical basis for treating them as a
single community in the proposed rule.
Response: Many other commenters,
however, supported the Department’s
approach to provide for a single
government-to-government relationship.
History shows that many Native groups
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changed their form of government over
time, including in response to Western
contact. The single, centralized
government of the Kingdom of Hawaii,
which was in place for almost a century
before its overthrow in 1893, provides a
strong basis on which to proceed here
with a single Native Hawaiian
government to conduct relations with
the United States on a formal
government-to-government basis.
Moreover, doing so is consistent with
how Congress treated the Native
Hawaiian community as a single entity
through more than 150 laws that
established programs and services for its
benefit.
As correctly noted by commenters,
Congress used two definitions of Native
Hawaiian to establish eligibility for
Native Hawaiian programs and services.
See response to comment (e)(1). In the
rule, the Department reconciled
Congress’s use of these two definitions
with its treatment of Native Hawaiians
as a single community by providing for
a government-to-government
relationship with one Native Hawaiian
government that has broad-based
community support among both HHCA
Native Hawaiians and the broader group
of Native Hawaiians. Moreover, the
Department is aware of no Federal
statutes directed specifically to
individuals who are Native Hawaiians
but who are not HHCA Native
Hawaiians. This lack of statutory
separation of the two demonstrates that
Congress views HHCA Native
Hawaiians as included within the
broader group of Native Hawaiians,
rather than treating the two as distinct
and separate for Federal programs and
services. Finally, as noted above in
response to comments about political
subdivisions, it is not uncommon for the
United States to have a government-togovernment relationship with a single
indigenous government that represents
multiple communities with distinct
historical and cultural roots and
property rights.
The final rule also envisions that the
Native Hawaiian government 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. Allowing for
political subdivisions is consistent with
principles of self-determination
applicable to Native groups, and
provides some flexibility should Native
Hawaiians wish to provide for
subdivisions with whatever degree of
autonomy the community determines is
appropriate, although only a single
formal government-to-government
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relationship with the United States
would be established.
(n) Other
(1) Comment: Some commenters
opposed the proposed rule because a
group of Native Hawaiians or, as they
assert, the majority of Native Hawaiians,
do not support such an action.
Response: The Department is aware
that some in the Native Hawaiian
community do not support
reestablishment of a formal governmentto-government relationship. Others in
the Native Hawaiian community,
however, urge the Department to create
the administrative procedure and
criteria proposed in the NPRM and
support such action. While there may be
differences of opinion on the issue, the
community’s views may change over
time, and most importantly, the rule
would apply only if the Native
Hawaiian community reorganizes their
government and formally submits a
request to reestablish a formal
government-to-government relationship
with the United States. Therefore, the
Department determined that it would be
appropriate to finalize the rule in order
to give the community notice of what
the Secretary would require if at some
point in the future there is broad-based
community support for a reorganized
Native Hawaiian government that seeks
to reestablish a formal government-togovernment relationship.
(2) Comment: One commenter
expressed concern that the proposed
rule was drafted without input from the
Native Hawaiian community and that
no ‘‘meaningful consultation’’ occurred
during the comment period.
Response: The proposed rule was the
product of extensive consultations with
the Native Hawaiian community,
beginning with the ANPRM issued in
June 2014.
As discussed in Section (V), the
ANPRM specifically solicited comments
through a series of questions relating to
whether the Department should assist
the Native Hawaiian community in
reorganizing its government and
whether the Department should take
administrative action to facilitate the
reestablishment of a government-togovernment relationship with the Native
Hawaiian community. The issuance of
an ANPRM is not required by statute,
and it is an option that Federal agencies
often determine is not necessary to
pursue. The Department determined,
however, that issuing an ANPRM would
be a vital first step in gathering diverse
and informed input from the Native
Hawaiian community itself. To that end,
the Department held 15 public meetings
in Hawaii, divided among the major
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islands, over a three-week period. These
public meetings provided opportunities
for extensive comment from the
community, resulting in over 40 hours
of testimony. The Department met with
a range of Native Hawaiian community
organizations in Hawaii for educational
outreach during the same period. The
Department also conducted five
consultations on the U.S. mainland
where many Native Hawaiians offered
comment on the ANPRM, and accepted
invitations from mainland-based Native
Hawaiian organizations to participate in
forums regarding the ANPRM.
Based on the comprehensive input
received on the ANPRM, the
Department drafted the proposed rule
that was published in October 2015.
Following publication of the proposed
rule, the Department further consulted
with the public and the Native
Hawaiian community through four
teleconferences and produced a video
that explained its provisions, available
at https://www.doi.gov/hawaiian/
procedures. The Department received
thousands of written comments, which
it considered closely in preparing the
final rule as noted in Section (IV)(A).
(3) Comment: A commenter stated
that the rule relies on the erroneous
assertion that the population of HHCA
Native Hawaiians is declining.
Response: Nothing in the proposed or
final rule rests on any assumption about
whether the total number of HHCA
Native Hawaiians is decreasing or
increasing. The preamble to the
proposed rule noted that the ratio of
HHCA Native Hawaiians to all Native
Hawaiians likely is declining over time,
as the general Native Hawaiian
population is increasing. Any
fluctuation in population, however, is
not a valid basis to abandon this
rulemaking, as there remains a sizable
Native Hawaiian community that may
ultimately choose to reorganize its
government. Furthermore, there is great
variety in the population levels of
federally-recognized tribes in the
continental United States.
(4) Comment: Some commenters
criticized the proposed rule’s reliance
on certain sources documenting the
history of relations between the United
States and Native Hawaiians. One
commenter suggested that these sources
are insufficient historical evidence
compared to what must be produced
under 25 CFR part 83, the procedures
for Federal acknowledgment of Indian
tribes.
Response: The Department relies on
Federal statutes, Congressional
preambles to the findings, case law and
independent research in setting out
relevant historical events in the
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proposed and final rules. As the Federal
agency with primary jurisdiction over
and subject-matter expertise on Native
Hawaiian affairs, the Department
reviewed the sources cited in the
proposed rule and determined that they
were sufficiently reliable before citing
them. In response to this comment,
however, the Department welcomed
additional information from
commenters, reviewed commenters’
suggested sources, and included new
citations to supplement the final rule.
With regard to 25 CFR part 83, the
Ninth Circuit concluded that the
regulations for Federal acknowledgment
of tribes in the continental United States
do not apply to Native Hawaiians.
Kahawaiolaa v. Norton, 386 F.3d at
1274 (citing 25 CFR 83.3 (2004),
restricting application of part 83 to
‘‘those indigenous groups indigenous to
the continental United States’’). In
upholding part 83’s express geographic
limitation, the Ninth Circuit concluded
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. Id. 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-togovernment basis.’’ Id. But unlike a part
83 petitioner, the Native Hawaiian
community has already been
‘‘acknowledged’’ or ‘‘recognized’’ by
Congress in over 150 enactments.
Accordingly, this rule establishes a
process for determining how (not
whether) a representative sovereign
government of the Native Hawaiian
community can relate to the United
States on a formal government-togovernment basis, in addition to the
existing special political and trust
relationship. See 80 FR at 59122.
(2) Section-by-Section Response to
Comment
(a) Section 50.1—Purpose
(1) Comment: A commenter suggested
adding an additional purpose for the
rule: ‘‘To more effectively implement
and administer—‘(c) Native Hawaiians’
exercise of their inherent sovereignty
and right to self-determination.’ ’’
Response: The Department agrees
with the substance of this comment and
revised the purpose section of the rule.
The rule identifies that one of its
purposes is to provide the Native
Hawaiian community the opportunity to
more effectively exercise its inherent
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sovereignty and exercise selfdetermination.
(2) Comment: One commenter noted
that the listed purposes of the rule
(§ 50.1(a), (b)) are inadequate and that
the Department should indicate how the
rule will improve Federal
implementation of existing Native
Hawaiian benefits.
Response: The Department made no
changes to the rule in response to this
comment. As stated in the preamble,
strong Native governments are critical to
exercising inherent sovereign powers,
preserving Native culture, and
sustaining Native communities. A
unified, reorganized Native Hawaiian
government could provide a formal,
direct link on a government-togovernment basis between the Native
Hawaiian community as a whole and
the United States.
(3) Comment: A commenter suggested
adding an additional purpose for the
rule that describes the HHCA Native
Hawaiian community as having its own
right to self-determination and land use.
Response: The Department made no
changes to the rule in response to this
comment because the Department will
only reestablish a formal government-togovernment relationship with a single
Native Hawaiian government in order to
be consistent with Congress’s statutory
treatment of Native Hawaiians. See
response to comment (m)(18).
(b) Section 50.3—Political Subdivisions
(1) Comment: Commenters suggested
amending the rule to provide for more
than one Native Hawaiian government
that could seek a government-togovernment relationship with the
United States. They assert that allowing
multiple Native Hawaiian governments
would more accurately reflect the
composition of the Native Hawaiian
community, particularly HHCA Native
Hawaiians who already have a special
relationship with the United States
under the HHCA. Similarly,
commenters suggested amending the
rule to allow homestead associations or
mokupuni (island-wide councils) to
seek formal relationships with the
United States.
Response: The Department made no
changes to the rule in response to this
comment. The Department appreciates
that the Native Hawaiian community
has a rich history of self-governance
both as geographically defined
chiefdoms and as a unified government
under one Native Hawaiian monarch.
Congress, however, has dealt with
Native Hawaiians as a single
community. As a result, the Department
will reestablish a government-togovernment relationship with a single
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Native Hawaiian government although
that government may recognize political
subdivisions based on this history or
other distinctions within the
community consistent with Federal law.
See response to comment (f)(2).
(2) Comment: One commenter
suggested that the final rule should
define the scope of or clarify a political
subdivision’s ‘‘limited powers’’ in
§ 50.3.
Response: The Department made no
changes to the rule in response to this
comment. By definition, any political
subdivision provided for in the
governing document would not be
independent of the Native Hawaiian
Governing Entity and thus would have
only governmental authorities derived
from the larger entity, i.e., ‘‘limited
powers.’’ The scope of those ‘‘limited
powers’’ would be determined by the
Native Hawaiian community and
defined in the governing document.
(3) Comment: One commenter
suggested revising the proposed rule to
require that the Native Hawaiian
governing document include a provision
establishing a political subdivision
limited to HHCA Native Hawaiians
‘‘with the express purpose of managing
the federal and state relationships
involved in the implementation of the
HHCA and the HHLRA.’’
Response: The Department made no
changes to the proposed rule in
response to this comment. The
Department respects a Native Hawaiian
government’s inherent authority to
exercise self-determination and selfgovernance by developing a governing
document that best suits its needs and
those of its citizenry. The proposed rule
accordingly permitted the Secretary to
reestablish a government-to-government
relationship with a single Native
Hawaiian government that may include
political subdivisions based on island or
other geographic, historical, or cultural
ties out of respect for the Native
Hawaiian community’s unique history
of self-governance prior to and during
the Kingdom of Hawaii. If HHCA Native
Hawaiians determine that their interests
are best served by participating in a
Native Hawaiian government through a
political subdivision with specific
authorities, they may advocate for such
a requirement during development of
the community’s governing document. If
the governing document adopted by the
community as a whole provides specific
authorities to political subdivisions
defined in a fair and reasonable manner,
the Department will respect that grant of
authorities. The Department expects
that HHCA Native Hawaiians will play
a key role in developing the governing
document, which must be ratified to
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reflect the will of the Native Hawaiian
community as a whole through a
process that is free and fair.
(c) Section 50. 4—Definitions
(1) Comment: A number of
commenters claimed that by defining
the term ‘‘Native Hawaiian’’ consistent
with past Congressional usage of the
term, the Department potentially
undermines attempts by the Native
Hawaiian community to identify their
own membership.
Response: Congress has already
established a special political and trust
relationship with the Native Hawaiian
community. Accordingly, in this
rulemaking the Department applies
existing definitions Congress has
adopted in establishing this
relationship. The Department recognizes
and supports the community’s interest
in self-governance, and notes that any
governing document that the
community adopts will appropriately
include membership criteria that reflect
the community’s own definition of its
membership consistent with § 50.13(f).
(2) Comment: A commenter suggested
revising the definition of ‘‘HHCAeligible Native Hawaiian’’ to parallel the
definition of ‘‘native Hawaiian’’ under
HHCA sec. 201(a)(7), reasoning that
‘‘HHCA-eligible Native Hawaiian’’ is
‘‘overly complicated’’ and could cause
confusion in the community, among
other reasons.
Response: The Department amended
the definition of ‘‘HHCA-eligible Native
Hawaiian’’ in the final rule to more
clearly reflect the definition of ‘‘native
Hawaiian’’ under the HHCA, as
suggested. And for simplicity, the
Department changed the term to ‘‘HHCA
Native Hawaiian.’’
(3) Comment: A commenter notes that
the definition of HHCA Native Hawaiian
‘‘seems to disallow descent by out-ofwedlock birth or claiming a different
father than your mother’s husband,’’ as
well as descent by adoption or from
outside the Native Hawaiian
community.
Response: The Department made no
changes to the rule in response to this
comment. Nothing in the definition of
‘‘HHCA Native Hawaiian’’ requires a
marriage certificate or would preclude
an out-of-wedlock child from qualifying
under the definition. In contrast, a nonNative Hawaiian child adopted within
the community would not be eligible to
participate in the ratification
referendum. See § 50.13; response to
comment (c)(1); (i)(3).
(4) Comment: A commenter requested
that the Department add ‘‘which was
not repealed and remains in effect with
the elements of both Federal and State
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law’’ to the definition of ‘‘HHCA’’ in the
definitions section of subpart C in order
to clarify that this law was not repealed
two years after Hawaii became a state.
Response: The Department agrees that
the HHCA remains in effect and has
elements of both Federal and State law.
It is unnecessary to include clarifying
language to that effect in the final rule.
(5) Comment: A commenter requested
that the Department add definitions for
the terms ‘‘Secretary,’’ ‘‘Rehabilitation
of native Hawaiians’’ and ‘‘State.’’
Response: The Department made no
changes to the definition of Secretary.
The Department chose not to define
‘‘rehabilitation of Native Hawaiians’’
because the term is not used in the rule
and is outside of the scope of the
rulemaking. The Department added a
definition of ‘‘State.’’
(6) Comment: A commenter asked
whether the term ‘‘Native Hawaiian
community’’ refers to ‘‘the Hawaiian
Nation’’ as defined to mean ‘‘a large
aggregate of people united by common
descent, history, culture, or language
inhabiting a particular country or
territory.’’
Response: The term ‘‘Hawaiian
Nation’’ has a variety of different
meanings and the Department is not
aware of any single, authoritative
definition of that term. The term
‘‘Native Hawaiian community’’ is
defined in the final rule as ‘‘the distinct
Native Hawaiian 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.’’ The
term ‘‘Native Hawaiian community’’
includes the entire community
recognized by Congress and excludes all
individuals outside of that community.
(7) Comment: One commenter was
concerned that the proposed rule
indicated that individuals with
leaseholds on Hawaiian home lands
were, by definition, considered ‘‘Native
Hawaiian,’’ and that such a definition
was problematic because some
individuals have Hawaiian home land
leaseholds because they lived on lands
that were subject to the Hawaiian
Homes Commission Act. In short, these
individuals became lessees simply
because of the location of their ancestral
homestead, not due to their ancestry.
Examples included lands that currently
make up the Papakolea community
(including Papakolea, Kewalo, and
Auwailimu).
Response: Ancestry is a crucial
component to the definitions of ‘‘Native
Hawaiian’’ and ‘‘HHCA Native
Hawaiian’’ in the rule, and a non-Native
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Hawaiian lessee would not meet these
definitions.
(8) Comment: One commenter
expressed concern that the proposed
rule defines ‘‘Native Hawaiian’’ in the
same terms the Supreme Court found to
be racial in Rice v. Cayetano, 528 U.S.
495 (2000). Numerous commenters
stated, more generally, that the
Department’s proposed action was
unconstitutional and violated the Equal
Protection Clause of the U.S.
Constitution.
Response: The Department disagrees
that it defines ‘‘Native Hawaiian’’ in
racial terms. Rather, it defines ‘‘Native
Hawaiian’’ consistent with the special
political and trust relationship Congress
acknowledged and recognized in over
150 statutes. The final rule sets out
procedures to reestablish a formal
government-to-government relationship
with a distinct indigenous political
community recognized by Congress, and
therefore does not violate the Equal
Protection Clause of the U.S.
Constitution for the same reasons that
the Supreme Court found provisions of
Title 25 of the United States Code
relating to Indians and Indian tribes
constitutional in Morton v. Mancari, 417
U.S. at 554 (‘‘The preference, as applied,
is granted to Indians not as a discrete
racial group, but, rather, as members of
quasi-sovereign tribal entities whose
lives and activities are governed by the
BIA in a unique fashion.’’). The rule is
distinguishable from the provisions
found unconstitutional in Rice v.
Cayetano. In Rice, the Court expressly
recognized that Mancari and its progeny
authorize distinct treatment of tribes
and their members. 528 U.S. at 518–19.
(9) Comment: Several commenters
noted that the proposed definition of
‘‘HHCA-eligible Native Hawaiian’’ does
not include individuals who obtained
their homestead leases through either
Section 208 or 209 of the HHCA, that is,
through valid successorship or transfer
pursuant to federally approved
amendments to the HHCA.
Response: The Department made no
changes to the rule in response to these
comments. The State proposed an
amendment to the HHCA to allow
certain relatives of HHCA lessees to
receive a lease through successorship or
transfer; and Congress approved that
amendment, making it law. In general,
the amendment permits a homestead
lessee to designate a husband, wife,
child, or grandchild who is at least onequarter Native Hawaiian ancestry to
receive a lease through succession or
transfer. Congress also approved
amendments to permit succession to
certain others who meet the definition
of ‘‘native Hawaiian’’ in HHCA sec.
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201(a)(7). Notably, these amendments
do not expand the definition of ‘‘native
Hawaiian’’ in HHCA sec. 201(a)(7), and
only permit certain individuals to
receive leases through successorship or
transfer. Further, Congress in enacting
the HHLRA, defined ‘‘beneficiary’’ in
terms of the HHCA definition of ‘‘native
Hawaiian’’ without reference to these
transfer and successorship amendments.
Congress also provided that the
Department ‘‘advance the interest of the
beneficiaries’’ in administering the
HHLRA and HHCA. The Department
therefore concludes that the HHCA
definition in sec. 201(a)(7), as originally
enacted, remains the controlling
Congressional definition for purposes of
this rulemaking.
(10) Comment: A commenter
suggested that in lieu of eliminating the
U.S. citizenship requirement, the
Department could consider amending
the definition in § 50.4 to read that
Native Hawaiians must be ‘‘eligible to
be considered within the Citizenship
clause of the U.S. Constitution.’’ The
commenter stated that this amendment
would allow the Native Hawaiian
government to include individuals who
may have reasonable concern about
being classified as a U.S. citizen, given
the history of the overthrow, but who
would otherwise be eligible for such
status under the Constitution.
Response: The Department eliminated
the U.S. citizenship requirement from
the rule as unnecessary and inconsistent
with many Federal statutes concerning
Native Hawaiians.
(d) Section 50.10—Elements of a
Request
(1) Comment: A commenter suggested
that the final rule permit an appointed
interim Native Hawaiian governing
body to submit a request for
reestablishment of a formal governmentto-government relationship, noting that
‘‘Federal law and policy respects the
rights of Native people in determining
their own political priorities.’’ Others
agreed and suggested such a governing
body could additionally assist in
organizing the organic activities of the
reorganized government.
Response: The Department made no
changes to the rule in response to this
comment. Section 50.10(f)–(g) requires
that an officer of the Native Hawaiian
government submit and certify a duly
enacted resolution of the governing
body requesting a formal government-togovernment relationship. This provision
presupposes that government officers
would be elected and seated before a
request to reestablish a formal
government-to-government relationship
could be ‘‘duly’’ enacted and submitted
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under the rule. To ensure that it is the
will of the Native Hawaiian community
to present a request to reestablish a
formal government-to-government
relationship, the requester must be an
elected governing body, not an
appointed one.
(2) Comment: A commenter noted that
because elections for government offices
would occur prior to submission of a
request to the Department, those
elections seemed ‘‘premature’’ since the
Department could reject the governing
document that sets out the elections
process and procedures.
Response: The Department made no
changes to the proposed rule in
response to this comment. As stated
below, the Department is committed to
providing technical assistance at the
request of the Native Hawaiian
community. In the event the Department
does not accept a governing document
as a basis for a formal government-togovernment relationship, the elected
officials’ status as officers would
presumptively be unaffected, however,
the text of the governing document
would ultimately determine if the
election of officers was premature.
Similarly, if the Secretary denies a
request to reestablish a formal
government-to-government relationship,
that decision would not affect the
authority of the governing document
within the community.
(e) Section 50.11—Process for Drafting
Governing Document
(1) Comment: Commenters suggested
amending the rule to provide the criteria
or types of evidence that the Secretary
will consider in a finding that the
minimum standards for demonstrating
‘‘meaningful input’’ from
‘‘representative segments of the Native
Hawaiian community’’ were met.
Response: The Department made no
changes to the rule in response to this
comment. The Native Hawaiian
community itself is in the best position
to determine how to obtain and
implement ‘‘meaningful input’’ from its
diverse membership. The Department
anticipates deferring to reasonable
approaches adopted by the community
to implement this standard.
(2) Comment: A commenter asked
whether the Department would consult
with the Native Hawaiian government
on laws or policies it proposed for
enactment in order to determine
whether they could conflict with State
or Federal law.
Response: The Department is willing
to provide technical assistance to
facilitate compliance with the final rule
and with other Federal law, upon
request for assistance, but encourages
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the Native Hawaiian community to seek
guidance as to State law from
appropriate State officials and other
non-Federal sources.
(f) Section 50.12—Documents That
Demonstrate who Participates in
Ratification Referendum
(1) Comment: One commenter
suggested removing proposed § 50.12(b)
to accommodate Native Hawaiians who
object to State-led efforts to compile a
roll of Native Hawaiians, such as the
Kanaiolowalu, to ‘‘encourage a more fair
and inclusive referendum for Native
Hawaiians of all political views.’’ By
contrast, another commenter suggested
amending this provision of the proposed
rule to specify the NHRC as responsible
for compiling and certifying the roll.
Response: The Department revised
§ 50.12 to make clear that the Native
Hawaiian community must develop its
own voter list but may rely on a roll of
Native Hawaiians prepared by others,
provided certain conditions are met.
Since it is the Native Hawaiian
community’s voter list, the Department
rejected the suggestion that the final
rule place responsibility for carrying out
the conditions set forth in § 50.12 on the
NHRC.
(3) Comment: To accommodate Native
Hawaiians who lack traditional ‘‘paper’’
documentation of their status, one
commenter recommended enhancing
the rule’s criteria for demonstrating
Native Hawaiian and HHCA Native
Hawaiian status for ratification purposes
to include ‘‘verification by kupuna
(elders) or kamaaina (long term
community residents)’’ which some
Federal laws currently provide.
Response: The Department made
changes to § 50.12 to enhance the ability
of individuals who may not have
traditional documentation to document
descent. It is for the Native Hawaiian
community to determine in the first
instance whether this commenter’s
suggestions should be adopted as
‘‘[o]ther similarly reliable means’’ under
§ 50.12(b)(5) and (c)(4), and the
Department would expect to give
deference to the community’s judgment.
(4) Comment: The DHHL expressed
concern that the integrity of its
processes for certifying eligibility for
HHCA programs and benefits could be
negatively impacted if alternative
methods for certification of ‘‘HHCAeligible Native Hawaiian’’ status are
accepted as proposed in § 50.12(a)(2)(ii).
Moreover, citing ‘‘significant
administrative burden’’ and its
‘‘responsibility and . . . obligation to
lessees, wait-listers, and applicants to
maintain the confidentiality and
security of their personally identifiable
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information,’’ among other concerns,
DHHL objected to being identified as a
source to demonstrate ‘‘HHCA Native
Hawaiian’’ status in the proposed rule at
§ 50.12(a)(1)(i) and (a)(2)(i).
Response: The proposed rule did not
intend to burden or assign a role for
DHHL in the verification process, and
nothing in the rule mandates such
involvement. For instance, DHHL may
be willing to certify to an individual
that he or she is a Native Hawaiian
lessee under HHCA sec. 201(a)(7), but
the rule does not require DHHL to do so.
Individuals who are enumerated on a
DHHL roll or list as HHCA-eligible
should have some kind of
documentation from DHHL indicating
their status under HHCA sec. 201(a)(7)
and such documents are sufficient proof
of their status as ‘‘HHCA Native
Hawaiians’’ without further
involvement by DHHL. Further, the
Department sees no reason to require
such individuals to resubmit ancestry
documentation that DHHL previously
found acceptable to those compiling the
list of eligible voters. The Department
also finds that persons who meet the
definition of ‘‘native Hawaiian’’ in
HHCA sec. 201(a)(7) should be
permitted to document such status by
using other records or documentation
demonstrating such eligibility, see final
rule § 50.12(c), even if they have not
applied to DHHL or their application
has not been acted upon by DHHL.
Finally, as to DHHL’s concern about
collateral effects on its certification
processes, a determination by the Native
Hawaiian community that an individual
is an ‘‘HHCA Native Hawaiian’’ for
purposes of compliance with this rule
would not have any collateral effect on
eligibility determinations made by
DHHL for its own purposes under its
own processes, which may rely on a
distinct methodology or distinct
documentation standards.
(g) Section 50.13—Contents of
Governing Documents
(1) Comment: Commenters objected to
the proposed rule’s requirement
excluding non-Native Hawaiians from
membership. They expressed their
belief that the Native Hawaiian
government should have the
opportunity to decide whether to
include non-Native Hawaiians in the
formulation of its governing documents.
Response: The Department made no
changes to the rule in response to this
comment. Federal law requires a
demonstration of Native ancestry to be
eligible for membership. See response to
comment (i)(3).
(2) Comment: A commenter suggested
either eliminating § 50.13(j)’s
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requirement that the Native Hawaiian
governing document ‘‘[n]ot contain
provisions contrary to Federal law’’ or
amending it to read: ‘‘Not contain
provisions contrary to current Federal
law’’ (emphasis added).
Response: The Department made no
changes to the rule in response to this
comment. The ordinary reading of
§ 50.13(j) is that the governing
document must comply with thenapplicable Federal law. The comment is
correct, however, in noting that Federal
law can change over time, and the result
may be to broaden or narrow the scope
of Native governments’ ability to
exercise their inherent sovereign
authorities, including authorities
identified in their governing documents.
See United States v. Lara, 541 U.S. 193
(2004). Thus, if a governing document
contains a provision that may not be
exercised because it is inconsistent with
Federal law, that provision will not
necessarily render that document
‘‘contrary to Federal law’’ for purposes
of this section. The result instead would
be that the provision will not be
enforceable.
(3) Comment: One commenter asked
for guidance on the meaning of
§ 50.13(b), which requires the Native
Hawaiian governing document to
‘‘prescribe the manner in which the
government exercises its sovereign
powers.’’
Response: This language is intended
to refer to a governing document’s
enumeration of powers of the respective
branches of government and of officials,
and establishment of the processes by
which governmental power is exercised.
It is intended to be read together with
§ 50.13(c), which references
establishment of ‘‘the institutions and
structure of the government, and of its
political subdivisions (if any).’’
(4) Comment: One commenter
expressed the opinion that the
Department would be unable to
‘‘enforce’’ the terms of the Native
Hawaiian Governing Entity’s initial
governing document because the entity,
like an Indian tribe, would be able to
amend this document without
Secretarial approval.
Response: The Department made no
changes to the rule in response to this
comment. § 50.13 provides minimum
requirements for a governing document,
including that it must ‘‘[d]escribe the
procedures for proposing and ratifying
amendments to the governing
document.’’ Section 50.13(i). Under this
rule, the Department does not have a
responsibility to approve or disapprove
amendments to the governing document
that are ratified after the formal
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government-to-government relationship
has been reestablished.
(h) Section 50.14—Ratification
Referendum
(1) Comment: One commenter
suggested adding a provision requiring
verified Native Hawaiians and HHCA
Native Hawaiians to ‘‘indicate[] a
willingness to participate in the
referendum by enrolling on the
referendum voter list acknowledging
U.S. citizenship and the Native status
recognized by Congress. A willingness
to participate, regardless of a vote for or
against ratification, is a key baseline
criteria that should be included’’ in the
final rule. Others echoed the substance
of this comment requiring that the voter
list be created through an ‘‘opt-in’’
process.
Response: The Department made no
changes to the rule in response to these
comments. The proposed and final rules
provide that the voter list exclude any
individual who requests to be removed,
which can be characterized as the
ability to ‘‘opt-out.’’ Whether ‘‘opt-in’’
or ‘‘opt-out,’’ each process ensures that
individuals are empowered to exclude
themselves from the list. The Native
Hawaiian community, however, may
not impose additional criteria, as
suggested by the commenter, which
could result in excluding individuals
recognized by Congress as part of the
Native Hawaiian community.
(2) Comment: One commenter
observed that while the proposed rule
requires a written narrative of the Native
Hawaiian government’s ratification
process and procedures, there is no
‘‘real review’’ by the Department until
after the ratification concludes. This
commenter suggested the final rule
include authority for the Native
Hawaiian government to submit its
proposed ratification procedures for the
Department’s review prior to
implementation as an ‘‘intermediate
step’’ that could potentially prevent
avoidable delay or disapproval of the
request on procedural grounds.
Response: The Department made no
changes to the rule in response to this
comment. Section 50.21 of the rule
authorizes technical assistance to
facilitate compliance with the final rule
and other Federal law upon request by
the Native Hawaiian community.
Technical assistance could, for instance,
include providing Departmental
expertise related to the community’s
ratification process and other technical
matters.
(i) Section 50.16—Secretarial Criteria
Comment: One commenter requested
that the requirement that the ratification
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referendum and elections for public
office were ‘‘conducted in a manner not
contrary to Federal law’’ be revised to
refer to ‘‘then established Federal law’’
because of the possibility that Federal
law would change at some point
following the ratification referendum.
Response: The Department notes that
Federal law imposes fairly few
limitations on a referendum or election
conducted by a Native sovereign. The
Voting Rights Act does not apply to
such elections, for example. See Akina
v. Hawaii, 141 F. Supp. 3d 1106, 1125–
26 (D. Haw. 2015); Gardner v. Ute Tribal
Court Chief Judge, 36 Fed. App’x 927,
928 (10th Cir. 2002); Cruz v. Ysleta Del
Sur Tribal Council, 842 F. Supp. 934,
935 (W.D. Tex. 1993). The reference to
Federal law may therefore have a fairly
limited application. Moreover, the
Department believes that the ordinary
reading of this provision is that the
referendum and election must comply
with then-applicable Federal law. The
Department accordingly believes that no
revision to this provision of the rule text
is necessary, as this is the most natural
interpretation of the existing language.
(j) Section 50.21—Technical Assistance
Comment: Commenters requested that
the Department be required to provide
technical assistance on all aspects of the
rule, from drafting of organic documents
to compliance with various standards
articulated in the proposed rule, and
that such technical assistance include
Federal grants.
Response: The Department made no
changes to the rule in response to this
comment. The Department is committed
to assisting the Native Hawaiian
community’s efforts to exercise selfdetermination and reorganize its
government, and therefore will provide
technical assistance upon request of the
Native Hawaiian community.
Regulations, however, cannot
independently authorize Federal grants;
statutory authority is required. The
Native Hawaiian community may seek
financial assistance from various
funding sources.
(k) Section 50.30 to 50.32—Public
Comment/Deadline Extension
(1) Comment: A few commenters
stated that the 30-day public comment
period on a request submitted under the
proposed rule was insufficient for
substantive review of any request. These
commenters urged the Department to
increase the public comment period to
90 days. Others urged the Department to
limit the number of days by which a
deadline may be extended and the
number of times those deadline
extensions may be granted. These
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commenters specifically urged that
deadlines should only be extended by
30 or 60 days, and that deadlines should
only be extended once or twice.
Response: The Department agrees that
more time for substantive review of any
request submitted under this Part is
warranted. The final rule allows 60 days
for the public to submit any comments
on the request and permits a single
extension by a maximum of 90 days for
good cause. Similarly, the requester will
have 60 days to respond to any
comment or evidence, which may be
extended by up to 90 days for good
cause. Accordingly, the amount of time
the Department has for posting any
comments received during this period is
extended to a total of 20 days in
§ 50.30(b).
(2) Comment: A commenter urged
limiting the Secretary to a maximum of
210 days to review any request,
including any extensions granted.
Others added that the Department
should not be given complete discretion
to extend its own deadlines and that it
should be required to seek the
requester’s consent prior to issuing an
extension to itself. Finally, commenters
urged amendment of the proposed rule
to mandate action within the allowable
timeframes so that the Secretarial
review process is not ‘‘unduly delayed.’’
Response: The Department
appreciates the importance of timely
review of and action on a request. In
response to the comments, the final rule
requires notice to the requester,
including an estimate of when the
decision will issue, if the Secretary is
unable to act within 120 days. The
Department made no further changes to
the rule in response to this comment.
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(l) Section 50.40—Secretary’s Decision
Comment: Commenters urged that the
final rule impose a limit to the
Secretary’s decision-making time frame,
and if the Secretary fails to act within
that time frame, the request should be
deemed approved.
Response: The Department clarified
that the Secretary may request
additional documentation and
explanation from the requester and the
public with respect to the material
submitted, including whether the
request is consistent with this part. The
Department made no further changes to
the rule in response to this comment.
The significance of reestablishing a
formal government-to-government
relationship requires an affirmative act
by the Secretary, so that there can be no
question about the status of that formal
relationship.
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(m) Section 50.44—Implementation of
Government-to-Government
Relationship
(1) Comment: Commenters requested
that the final rule be amended by
adding: ‘‘Nothing in this part explicitly
or implicitly abrogates, affects, or
impairs any claim or claims of the
Native Hawaiian people under Federal
law or International law or affects the
ability of the Native Hawaiian people or
their representatives to pursue such
claim or claims in Federal or
International forums.’’ Similarly, other
commenters requested that the final rule
include a provision stating that the rule
itself shall not serve as a settlement of
any such claims.
Response: The Department made no
changes to the final rule in response to
these comments. As stated above, this
rule does not address any existing
claims that the Native Hawaiian people,
either individually or collectively, may
assert for redress under Federal or
international law. All such claims are
outside the scope of this rulemaking, as
also discussed above.
(2) Comment: Commenters suggest
amending § 50.44(a) to make express
that the Native Hawaiian Governing
Entity will have the same privileges and
immunities as federally-recognized
Indian tribes in the continental United
States. Another commenter suggested
amendments to the contrary, urging the
Department to eliminate language in the
rule that ‘‘may unduly imply that the
Native Hawaiian Governing Entity must
be exactly the same as an Indian tribe
in all respects.’’
Response: Section 50.44(a) states that
the Native Hawaiian Governing Entity
would have the same inherent sovereign
governmental authorities as do
federally-recognized tribes in the
continental United States and the same
government-to-government relationship
under the U.S. Constitution and Federal
law. Accordingly, the Native Hawaiian
Governing Entity would have the same
inherent privileges and immunities as
do federally-recognized tribes in the
continental United States. See response
to comment (1)(m)(12). As to the
question whether the Native Hawaiian
Governing Entity is ‘‘exactly the same as
an Indian tribe in all respects,’’ the
Department responds that Congress
systematically treats the Native
Hawaiian community separately from
tribes in the continental United States.
The Native Hawaiian Governing Entity
will have the inherent sovereign
governmental authorities of a tribe,
except to the extent that Federal law
constrains those authorities. For
example, because there is no land in
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Hawaii meeting the definition of
‘‘Indian country’’ and no authority to
take land into trust, the Native Hawaiian
Governing Entity will necessarily have
limited territorial authority in the
absence of Congressional action to
establish such authority.
(3) Comment: A commenter expressed
concern that the rule did not provide a
‘‘list of permitted powers’’ that the
Native Hawaiian Governing Entity could
exercise, such as powers that federallyrecognized Indian tribes in the
continental United States exercise.
Response: The Native Hawaiian
Governing Entity may exercise all its
inherent sovereign powers, and all
powers vested in it by Congress, subject
to the limitations in its governing
document or established by Federal law.
(4) Comment: One commenter stated
that the proposed rule’s restriction on
Native Hawaiians’ eligibility for Federal
Indian programs, services, and benefits
would be unenforceable because the
Native Hawaiian Governing Entity
would be able to amend its initial
governing document without Federal
approval just as federally-recognized
Indian tribes in the continental United
States are able to do under 25 CFR part
81.
Response: The Native Hawaiian
Governing Entity may not alter
Congress’s approach that distinguishes
between programs, services, and
benefits provided to federallyrecognized tribes in the continental
United States and programs, services,
and benefits provided to Native
Hawaiians by amending its governing
document after a government-togovernment relationship is
reestablished. This rulemaking carefully
adheres to Congress’s separate treatment
of federally-recognized tribes in the
continental United States and the Native
Hawaiian community for purposes of
funding programs, services, and
benefits. Congress’s approach binds the
Department and the community. See
response to comment (1)(g)(4).
(C) 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
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 rule
(1) describes the extent of the
Department’s prior consultation with
tribal officials; (2) summarizes the
nature of their concerns and the
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Department’s position supporting the
need to issue the rule; and (3) 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.
Comments regarding access to Federal
programs, services, and benefits
available to federally-recognized Indian
tribes: The Department received
comments strongly supporting Federal
rulemaking to reestablish a formal
government-to-government relationship
between the United States and the
Native Hawaiian community. Comments
expressed concern about 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
federally-recognized Indian tribes in the
continental United States. Comments
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, services,
and benefits for a reorganized Native
Hawaiian government remain separate
from programs and services dedicated to
tribes in the continental United States.
Response: The Department agrees
with these comments. Native Hawaiians
are ineligible for Federal Indian
programs and services absent express
Congressional declarations to the
contrary.
When creating programs, services,
and benefits, Congress systematically
distinguishes between programs,
services, and benefits to Indian tribes in
the continental United States and those
provided to the Native Hawaiian
community. Congress enacted programs
and services expressly and specifically
for the Native Hawaiian community that
are in many respects parallel and
analogous to—but distinct from—the
programs and services enacted for
federally-recognized tribes in the
continental United States. Federal
Native Hawaiian programs and services
are provided to Native Hawaiians as an
indigenous Native Hawaiian community
under the Indian affairs power, just as
Federal Indian programs and services
are provided to Indian tribes in the
continental United States under the
Indian affairs power.
In some instances, Congress expressly
provided for Native Hawaiians to
receive benefits as part of a program
provided to Native Americans generally;
in others, Congress has provided a
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distinct program or set of programs,
parallel to those that exist for other
Native American communities. To the
extent that Native Hawaiians are not
eligible for certain programs under
current law, it follows that this
treatment reflects a conscious decision
by Congress. Moreover, because of the
structure of many Federal programs,
treating a Native Hawaiian Governing
Entity or its members as eligible for
programs provided generally to
federally-recognized Indian tribes in the
continental United States or their
members could result in duplicative
services or benefits.
Congress’s systematic provision of
separate benefits for Native Hawaiians
gives rise to a presumption that
Congress did not intend that Native
Hawaiians would also receive
essentially duplicative programs,
services, and benefits through programs
available to tribes in the continental
United States.7 The Department
accordingly concludes that, absent
Congressional action that provides
Federal programs directed towards
Indians to include Native Hawaiians,
the Native Hawaiian community cannot
be treated as ‘‘eligible for the special
programs and services provided by the
United States to Indians because of their
status as Indians.’’ 25 U.S.C. 479a–1(a).
The distinction between Federal
Native Hawaiian programs and services
and Federal Indian programs and
services is apparent in the List Act,
which requires the Secretary to publish
in the Federal Register a list of those
Indian tribes that ‘‘the Secretary
recognizes to be eligible for the special
programs and services provided by the
United States to Indians because of their
status as Indians.’’ 25 U.S.C. 479a–1(a).
A comparison of the definition of
‘‘Indian tribe’’ in 25 U.S.C. 479a(2), with
the narrower specification of which
tribes may appear on the list itself, see
25 U.S.C. 479a–1(a), indicates that the
reference to ‘‘programs and services’’ in
section 479a–1(a) is limited to those
Federal programs and services available
to tribes generally, i.e., those in the
continental United States, as opposed to
Federal programs and services
identified for specific tribes or
communities, such as the Native
Hawaiian community.8 As explained
7 Cf. Kahawaiolaa, 386 F.3d at 1283 (noting
Congress’s intent to treat Native Hawaiians and
members of Indian tribes ‘‘differently’’ and
reasoning that allowing Native Hawaiians to apply
for Federal recognition under part 83 could ‘‘allow
native Hawaiians to obtain greater benefits than the
members of all American Indian tribes’’).
8 The definition in 25 U.S.C. 479a(2) specifies that
the term ‘‘Indian tribe’’ includes an ‘‘Indian or
Alaska Native tribe’’ because Congress wished to
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above, Congress provides a separate
suite of programs and services targeted
directly to Native Hawaiians, and not
through programs broadly applicable to
Indians. Congress thus makes plain that
Native Hawaiians receive a distinct set
of Federal programs and services so that
they are not eligible for general Indian
programs and services.9
This unique provision of separate
programs and services removes Native
Hawaiians from the scope of the Federal
Register list published under the List
Act. Therefore, following any
reestablishment of a formal governmentto-government relationship with the
United States, the Native Hawaiian
community would not be recognized by
the Secretary ‘‘to be eligible for the
special programs and services provided
by the United States to Indians because
of their status as Indians,’’ 25 U.S.C.
479a–1(a), and the Native Hawaiian
Governing Entity would not appear on
the list compiled under the List Act.
Section 50.44(c)–(d) of the final rule
similarly implements Congress’s
longstanding distinction between Native
Hawaiian programs and services and
remove any doubt that Alaska Natives were
included within the scope of that term. Indeed, the
definition makes clear that an Alaska Native tribe
could be acknowledged by the Secretary ‘‘to exist
as an Indian tribe.’’ And the use of the term
‘‘Indian’’ in section 479a–1(a) confirms that the
term was being used broadly and must necessarily
include Alaska Natives. 25 U.S.C. 479a–1(a)
(instructing the Secretary to publish a list of ‘‘all
Indian tribes which the Secretary recognizes to be
eligible for the special programs and services
provided by the United States to Indians because
of their status as Indians’’ (emphasis added)); see
also 25 U.S.C. 1212–1215 (provisions enacted
together with the List Act that reaffirmed the
eligibility of an Alaska Native tribe, and which refer
to a ‘‘federally recognized Indian tribe’’ and an
‘‘Alaska Native tribe’’ interchangeably); H.R. Rep.
No. 103–781 at 5 (noting that the List Act ‘‘requires
that the Secretary continue the current policy of
including Alaska Native entities on the list of
federally-recognized Indian tribes which are eligible
to receive services’’).
9 Even before adoption of the List Act, the
Department maintained a list of tribes that were
generally eligible for BIA programs and services.
See Indian Tribal Entities That Have a Governmentto-Government Relationship with the United States,
44 FR 7235 (1979). The List Act ratified and
codified the process for preparing that list. Notably,
25 CFR part 83, ‘‘Procedures for Federal
Acknowledgment of Indian Tribes,’’ contains a
provision stating that its purpose is to ‘‘determine
whether a petitioner is an Indian tribe eligible for
the special programs and services provided by the
United States to Indians because of their status as
Indians.’’ 25 CFR 83.2. Hawaii is outside the scope
of part 83, which further demonstrates the
Department’s longstanding conclusion that Native
Hawaiians fall outside the scope of these general
programs and services. See 25 CFR 83.3 (stating that
‘‘this part applies only to indigenous entities that
are not federally recognized Indian tribes’’); 25 CFR
83.1 (defining ‘‘indigenous’’ to mean ‘‘native to the
continental United States in that at least part of the
petitioner’s territory at the time of first sustained
contact extended into what is now the continental
United States’’).
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general Indian programs and services for
tribes in the continental United States.10
The List Act’s central purpose is to
provide ‘‘various departments and
agencies of the United States’’ with an
‘‘accurate, regularly updated, and
regularly published’’ list that they could
use ‘‘to determine the eligibility of
certain groups [in the continental
United States] to receive services from
the United States.’’ List Act findings,
sec. 103(7) (codified at 25 U.S.C. 479a
note). The List Act is mandatory and
prescriptive, stating that the Secretary
‘‘shall publish’’ a list of ‘‘all Indian
tribes which the Secretary recognizes to
be eligible for the special programs and
services provided by the United States
to Indians because of their status as
Indians.’’ 25 U.S.C. 479a–1(a) (emphasis
added); see also List Act findings, sec.
103(8). In enacting the List Act,
Congress specifically sought to
eliminate inconsistencies, to ensure
uniformity in the treatment of federallyrecognized tribes in the continental
United States, and to accord those tribes
and their membership access to the
same Federal programs and services.
See H.R. Rep. No. 103–781. It follows
that federally-recognized tribes in the
continental United States are all
‘‘eligible for the special programs and
services provided by the United States
to Indians because of their status as
Indians,’’ and that the Secretary has no
authority to exclude a federallyrecognized tribe in the continental
United States from the list compiled
under the List Act.
The vast bulk of Federal Indian
statutes providing programs and
services expressly state that they cover
only those Indian tribes that the
Secretary deems eligible for the special
programs and services that the United
States provides to Indians because of
their status as Indians. Such statutes
include the Indian Self-Determination
and Education Assistance Act
(ISDEAA), 25 U.S.C. 450b(e). These
Federal Indian statutes do not currently
cover the Native Hawaiian community,
nor would they cover that governing
entity with which the United States
reestablishes the formal government-togovernment relationship.
Some Federal statutes, however,
extend to all Indian tribes without
expressly stating that they cover only
those Indian tribes that the Secretary
deems eligible for the special programs
and services that the United States
provides to Indians in the continental
10 See § 50.4 of the final rule defining the terms
‘‘Federal Indian programs, services, and benefits’’
separately from ‘‘Federal Native Hawaiian
programs, services, and benefits.’’
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United States. Unless the statute’s text,
structure, purpose, or legislative history
is to the contrary, these statutes would
cover the Native Hawaiian Governing
Entity. See, e.g., 25 U.S.C. 1301(1)–(2)
(Indian Civil Rights Act definitions)
(covering ‘‘any tribe, band, or other
group of Indians subject to the
jurisdiction of the United States and
recognized as possessing powers of selfgovernment,’’ which include ‘‘all
governmental powers possessed by an
Indian tribe, executive, legislative, and
judicial, and all offices, bodies, and
tribunals by and through which they are
executed’’); 25 U.S.C. 2801(6) (using the
same definition, in the law-enforcement
context); 28 U.S.C. 1362 (providing
Federal-court jurisdiction over Federal
claims ‘‘brought by any Indian tribe or
band with a governing body duly
recognized by the Secretary of the
Interior’’).
For certain Federal statutes there may
be additional indicators that particular
provisions should or should not be
available to the Native Hawaiian
Governing Entity or its members. The
Department’s interpretation of a Federal
statute providing programs and services
to tribes and their members typically
will turn on the statute’s definition of
the term ‘‘Indian tribe,’’ but a clear
expression of Congressional intent will
control. Also, a Federal agency
administering a statute will have
authority to resolve any question that
may arise as to the meaning of that
statute and the scope of available
programs, services, and benefits.
This determination that the Native
Hawaiian Governing Entity is not
eligible for general Federal Indian
programs, services, and benefits also
comports with Congress’s express intent
that the Department’s Assistant
Secretary for Policy, Management and
Budget (PMB), not the Assistant
Secretary for Indian Affairs, oversee
Native Hawaiian matters, as stated in
the HHLRA, sec. 206, 109 Stat. 363.
(V) Public Meetings and Tribal
Consultations
The Department held public meetings
to gather testimony at both the ANPRM
and proposed rule stages of this
rulemaking. In June and July 2014, staff
from the Departments of the Interior and
Justice traveled to Hawaii to conduct 15
public meetings on the ANPRM across
the State. Hundreds of stakeholders and
interested parties attended sessions on
the islands of Hawaii, Kauai, Lanai,
Maui, Molokai, and Oahu. Also during
that time, staff conducted extensive,
informal outreach with Native Hawaiian
organizations, groups, and community
leaders. Following the public meetings
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in Hawaii, the Department held five
U.S. mainland regional consultations in
Indian country, supplemented with
targeted community outreach in
locations with significant Native
Hawaiian populations. To build on the
extensive record gathered during the
ANPRM, in October and November
2015, the Department held four threehour teleconferences on the NPRM: two
teleconferences that were open to the
public, one specifically targeted to
Native Hawaiian organizations, and one
specifically targeted to tribal leaders.
Transcripts from all public meetings
held during the ANPRM and NPRM
stages are available in the online docket
as well as on the Department’s Web site
(www.doi.gov/hawaiian).
(VI) 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 final 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 the Executive
Order.
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 final rule in a manner
consistent with these requirements.
B. Regulatory Flexibility Act
The Department certifies that this
final 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.).
Under the Regulatory Flexibility Act
(as amended by the Small Business
Regulatory Enforcement Fairness Act
(SBREFA) of 1996; 5 U.S.C. 601 et seq.),
whenever a Federal agency is required
to publish a notice of rulemaking for
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any proposed or final rule, it must
prepare, and make available for public
comment, a regulatory flexibility
analysis that describes the effect of the
rule on small entities (i.e., small
businesses, small organizations, and
small government jurisdictions).
However, no regulatory flexibility
analysis is required if the head of an
agency, or his designee, certifies that the
rule will not have a significant
economic impact on a substantial
number of small entities. SBREFA
amended the Regulatory Flexibility Act
to require Federal agencies to provide a
statement of the factual basis for
certifying that a rule will not have a
significant economic impact on a
substantial number of small entities.
The Department certified that the
proposed rule to implement these
changes to 43 CFR part 50 regulations
would not have a significant economic
impact on a substantial number of small
entities (80 FR 59113). The Department
did not receive any information during
the public comment period that changes
this certification.
The Regulatory Flexibility Act, as
amended, requires that Federal agencies
evaluate the potential incremental
impacts of rulemaking only on those
entities directly regulated by the
rulemaking itself and, therefore, not on
indirectly regulated entities. If a
reorganized Native Hawaiian
government decides to seek a formal
government-to-government relationship
with the United States, the rule provides
the requirements for submitting a
written request to the Secretary of the
Interior. The rule would directly affect
any such Native Hawaiian government.
A small governmental jurisdiction is the
government of a city, town, township,
village, school district, or special
district, with a population of less than
fifty thousand, unless the agency
establishes a different definition that is
appropriate to the activities of the
agency by notice and comment. See 5
U.S.C. 601(5). The Department has not
established a different definition by
notice and comment. Therefore, a
Native Hawaiian government would not
be considered a small entity under the
Regulatory Flexibility Act. See 5 U.S.C.
601(6). No other small entities would be
directly affected by the rule, thus no
small entities will be affected by this
rule.
C. Small Business Regulatory
Enforcement Fairness Act (SBREFA)
This final 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
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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 final rule does not impose an
unfunded mandate on state, local, or
tribal governments or the private sector
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 final 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 final 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 final 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.
addressed them, where possible, in the
final rule.
I. Paperwork Reduction Act
This final 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. An
OMB form 83–I is not required.
J. National Environmental Policy Act
This final 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 final 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 final 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.
List of Subjects in 43 CFR Part 50
Administrative practice and
procedure, Indians—tribal government.
For the reasons stated in the
preamble, the Department of the Interior
amends title 43 of the Code of Federal
Regulations by adding part 50 as set
forth below:
PART 50—PROCEDURES FOR
REESTABLISHING A FORMAL
GOVERNMENT-TO-GOVERNMENT
RELATIONSHIP WITH THE NATIVE
HAWAIIAN COMMUNITY
H. Consultation With Indian Tribes
(E.O. 13175)
Sec.
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
50.1
50.2
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Subpart A—General Provisions
What is the purpose of this part?
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?
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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 the 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?
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-togovernment 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; 25
U.S.C. 479a, 479a–1 (2015) (reclassified to 25
U.S.C. 5130, 5131 (2016)); 43 U.S.C. 1457;
Pub. L. 67–34, 42 Stat. 108, as amended; Pub.
L. 86–3, 73 Stat. 4; Pub. L. 103–150, 107 Stat.
1510; sec. 148, Pub. L. 108–199, 118 Stat.
445; 112 Departmental Manual 28.
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Subpart A—General Provisions
§ 50.1
What is the purpose of this part?
This part sets forth the Department’s
administrative procedure and criteria
for reestablishing a formal governmentto-government relationship between the
United States and the Native Hawaiian
community that will allow:
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(a) The Native Hawaiian community
to more effectively exercise its inherent
sovereignty and self-determination; and
(b) The United States to more
effectively implement and administer:
(1) The special political and trust
relationship that exists between the
United States and the Native Hawaiian
community, as recognized by Congress;
and
(2) 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).
§ 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 § 50.10. Reestablishment
of a formal government-to-government
relationship will occur if the Secretary
grants the request as described in
§§ 50.40 through 50.43.
§ 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.
§ 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 the
United States to any Indian or Alaska
Native tribe, band, nation, pueblo,
village, or community in the continental
United States that the Secretary of the
Interior acknowledges to exist as an
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Indian tribe, or to its 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
the United States to a Native Hawaiian
government, its political subdivisions (if
any), its members, the Native Hawaiian
community, Native Hawaiians, or
HHCA 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 Native Hawaiian means a
Native Hawaiian individual who meets
the definition of ‘‘native Hawaiian’’ in
HHCA sec. 201(a)(7).
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 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 Native Hawaiian 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-togovernment relationship.
Request means an express written
submission to the Secretary asking for
recognition as the Native Hawaiian
Governing Entity.
Requester means the government that
submits to the Secretary a request
seeking to be recognized as the Native
Hawaiian Governing Entity.
Secretary means the Secretary of the
Interior or that officer’s authorized
representative.
Sponsor means an individual who
makes a sworn statement that another
individual is:
(1) A Native Hawaiian or an HHCA
Native Hawaiian; and
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(2) The sponsor’s parent, child,
sibling, grandparent, grandchild, aunt,
uncle, niece, nephew, or first cousin.
State means the State of Hawaii,
including its departments and agencies.
Sworn statement means a statement
based on personal knowledge and made
under oath or affirmation which, if false,
is punishable under Federal or state
law.
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?
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 § 50.11;
(b) A written narrative with
supporting documentation thoroughly
describing how the Native Hawaiian
community determined who could
participate in ratifying the governing
document, consistent with § 50.12;
(c) The duly ratified governing
document, as described in § 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 § 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 § 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.
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§ 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.
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§ 50.12 What documentation is required to
demonstrate how the Native Hawaiian
community determined who could
participate in ratifying the governing
document?
The written narrative thoroughly
describing how the Native Hawaiian
community determined who could
participate in ratifying the governing
document must explain how the Native
Hawaiian community prepared its list of
eligible voters consistent with paragraph
(a) of this section. The narrative must
explain the processes the Native
Hawaiian community used to verify that
the potential voters were Native
Hawaiians consistent with paragraph (b)
of this section, and to verify which of
those potential voters were also HHCA
Native Hawaiians, consistent with
paragraph (c) of this section, and were
therefore eligible to vote. The narrative
must explain the processes,
requirements, and conditions for use of
any sworn statements and explain how
those processes, requirements, and
conditions were reasonable and reliable
for verifying Native Hawaiian descent.
(a) Preparing the voter list for the
Ratification Referendum. The Native
Hawaiian community must prepare a
list of Native Hawaiians eligible to vote
in the ratification referendum.
(1) The list of Native Hawaiians
eligible to vote in the ratification
referendum must:
(i) Be based on reliable proof of Native
Hawaiian descent;
(ii) Be made available for public
inspection;
(iii) Be compiled in a manner that
allows individuals to contest their
exclusion from or inclusion on the list;
(iv) Include adults who demonstrated
that they are Native Hawaiians in
accordance with paragraph (b) of this
section;
(v) Include adults who demonstrated
that they are HHCA Native Hawaiians in
accordance with paragraph (c) of this
section;
(vi) Identify voters who are HHCA
Native Hawaiians;
(vii) Not include persons who will be
younger than 18 years of age on the last
day of the ratification referendum; and
(viii) Not include persons who
requested to be removed from the list.
(2) The community must make
reasonable and prudent efforts to ensure
the integrity of its list.
(3) Subject to paragraphs (a)(1) and (2)
of this section, the community may rely
on a roll of Native Hawaiians prepared
by the State under State law.
(b) Verifying that a potential voter is
a Native Hawaiian. A potential voter
may meet the definition of a Native
Hawaiian by:
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(1) Enumeration on a roll or other list
prepared by the State under State law,
where enumeration is based on
documentation that verifies Native
Hawaiian descent;
(2) Meeting the requirements of
paragraph (c) of this section;
(3) A sworn statement by the potential
voter that he or she:
(i) Is enumerated on a roll or other list
prepared by the State under State law,
where enumeration is based on
documentation that verifies Native
Hawaiian descent;
(ii) Is identified as Native Hawaiian
(or some equivalent term) on a birth
certificate issued by a state or territory;
(iii) Is identified as Native Hawaiian
(or some equivalent term) in a Federal,
state, or territorial court order
determining ancestry;
(iv) Can provide records documenting
current or prior enrollment as a Native
Hawaiian in a Kamehameha Schools
program; or
(v) Can provide records documenting
generation-by-generation descent from a
Native Hawaiian ancestor;
(4) A sworn statement from a sponsor
who meets the requirements of
paragraph (b)(1), (2), or (3) of this
section that the potential voter is Native
Hawaiian; or
(5) Other similarly reliable means of
establishing generation-by-generation
descent from a Native Hawaiian
ancestor.
(c) Verifying that a potential voter is
an HHCA Native Hawaiian. A potential
voter may meet the definition of an
HHCA Native Hawaiian by:
(1) Records of DHHL, including
enumeration on a roll or other list
prepared by DHHL, documenting
eligibility under HHCA sec. 201(a)(7);
(2) A sworn statement by the potential
voter that he or she:
(i) Is enumerated on a roll or other list
prepared by DHHL, documenting
eligibility under HHCA sec. 201(a)(7);
(ii) Is identified as eligible under
HHCA sec. 201(a)(7) in specified State
or territorial records;
(iii) Is identified as eligible under
HHCA sec. 201(a)(7) in a Federal, state,
or territorial court order; or
(iv) Can provide records documenting
eligibility under HHCA sec. 201(a)(7)
through generation-by-generation
descent from a Native Hawaiian
ancestor or ancestors;
(3) A sworn statement from a sponsor
who meets the requirements of
paragraph (c)(1) or (2) of this section
that the potential voter is an HHCA
Native Hawaiian; or
(4) Other similarly reliable means of
establishing eligibility under HHCA sec.
201(a)(7).
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§ 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, and political
subdivisions of the State, and with nongovernmental 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 Native
Hawaiians to enroll;
(2) May permit Native Hawaiians who
are not HHCA 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.
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§ 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
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 Native Hawaiians, who cast
a ballot in the ratification referendum;
(4) The number of HHCA Native
Hawaiians who cast a vote in favor of
the governing document; and
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(5) The total number of HHCA 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
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
§ 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 Native Hawaiians votes cast
by persons who were not HHCA 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 Native Hawaiian, consistent with
§ 50.12.
§ 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
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(c) Open to all eligible Native
Hawaiian members as defined in the
governing document.
§ 50.16 What criteria will the Secretary
apply when deciding whether to reestablish
the formal government-to-government
relationship?
The Secretary will grant a request if
the Secretary determines that each
criterion on the following list of eight
criteria has been met:
(a) The request includes the seven
required elements described in § 50.10;
(b) The process by which the Native
Hawaiian community drafted the
governing document met the
requirements of § 50.11;
(c) The process by which the Native
Hawaiian community determined who
could participate in ratifying the
governing document met the
requirements of § 50.12;
(d) The duly ratified governing
document, submitted as part of the
request, meets the requirements of
§ 50.13;
(e) The ratification referendum for the
governing document met the
requirements of § 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
§ 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 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 presumption that this criterion
is satisfied; and
(h) The number of votes that HHCA
Native Hawaiians cast in favor of the
governing document exceeded half of
the total number of ballots that HHCA
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
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HHCA Native Hawaiians; and Provided
Further, that, if fewer than 9,000 HHCA
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 Native
Hawaiians cast votes in favor of the
governing document, the Secretary shall
apply a presumption that this criterion
is satisfied.
Subpart C—Process for Reestablishing
a Formal Government-to-Government
Relationship
Submitting a Request
§ 50.20
How may a request be submitted?
If the Native Hawaiian community
seeks to reestablish a formal
government-to-government relationship
with the United States, the request
under this part must be submitted to the
Secretary, Department of the Interior,
1849 C Street NW., Washington, DC
20240.
§ 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
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§ 50.30 What opportunity will the public
have to comment on a request?
(a) Within 20 days after receiving a
request that appears to the Department
to be consistent with §§ 50.10 and
50.16(g) and (h), the Department will:
(1) Publish in the Federal Register
notice of receipt of the request and
notice of the opportunity for the public,
within 60 days following publication of
the Federal Register notice, to submit
comment and evidence on whether the
request meets the criteria described in
§ 50.16; and
(2) Post on the Department Web site:
(i) The request, including the
governing document;
(ii) The name and mailing address of
the requester;
(iii) The date of receipt; and
(iv) Notice of the opportunity for the
public, within 60 days following
publication of the Federal Register
notice, to submit comment and evidence
on whether the request meets the
criteria described in § 50.16.
(b) Within 20 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 in accordance with
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paragraphs (a)(1) and (a)(2)(iv) of this
section.
§ 50.31 What opportunity will the requester
have to respond to comments?
Following the Web site posting
described in § 50.30(b), the requester
will have 60 days to respond to any
comment or evidence that was timely
submitted to the Department in
accordance with § 50.30(a)(1) and
(a)(2)(iv).
§ 50.32 May the deadlines in this part be
extended?
Yes. Upon a finding of good cause, the
Secretary may extend any deadline in
§ 50.30 or § 50.31 by a maximum of 90
days and post on the Department Web
site the length of and the reasons for the
extension: Provided, that any request for
an extension of time is in writing and
sets forth good cause.
The Secretary’s Decision
§ 50.40 When will the Secretary issue a
decision?
The Secretary will apply the criteria
described in § 50.16 and endeavor to
either grant or deny a request within
120 days of determining that the
requester’s submission is complete and
after receiving all the information
described in §§ 50.30 and 50.31. The
Secretary may request additional
documentation and explanation from
the requester or the public with respect
to the material submitted, including
whether the request is consistent with
this part. If the Secretary is unable to act
within 120 days, the Secretary will
provide notice to the requester, and
include an explanation of the need for
more time and an estimate of when the
decision will issue.
§ 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 § 50.16 and is consistent
with this part.
§ 50.42 When will the Secretary’s decision
take effect?
The Secretary’s decision will take
effect 30 days after the publication of
notice in the Federal Register.
§ 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
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governing document), the special
political and trust relationship between
the United States and the Native
Hawaiian community will be
reaffirmed, and a formal government-togovernment relationship will be
reestablished with the Native Hawaiian
Governing Entity as the sole
representative sovereign government of
the Native Hawaiian community.
§ 50.44 How will the formal government-togovernment 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
formal government-to-government
relationship under the United States
Constitution and Federal law as the
formal government-to-government
relationship between the United States
and a federally-recognized tribe in the
continental United States, in recognition
of the existence of the same inherent
sovereign governmental authorities,
subject to the limitation set forth in
paragraph (d) of this section.
(b) The Native Hawaiian Governing
Entity will be subject to the plenary
authority of Congress to the same extent
as are federally-recognized tribes in the
continental United States.
(c) Absent Federal law to the contrary,
any member of the Native Hawaiian
Governing Entity presumptively 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 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, tax, or otherwise 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
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(4) The Act of November 11, 1993,
secs. 10001–10004, 107 Stat. 1418,
1480–84.
(f) Reestablishment of the formal
government-to-government relationship
does not affect the title, jurisdiction, or
status of Federal lands and property in
Hawaii.
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(g) Nothing in this part impliedly
amends, repeals, supersedes, abrogates,
or overrules any applicable Federal law,
including case law, affecting the
privileges, immunities, rights,
protections, responsibilities, powers,
limitations, obligations, authorities, or
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jurisdiction of any federally-recognized
tribe in the continental United States.
Michael L. Connor,
Deputy Secretary.
[FR Doc. 2016–23720 Filed 10–13–16; 8:45 am]
BILLING CODE 4334–63–P
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[Federal Register Volume 81, Number 199 (Friday, October 14, 2016)]
[Rules and Regulations]
[Pages 71278-71323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23720]
[[Page 71277]]
Vol. 81
Friday,
No. 199
October 14, 2016
Part IV
Department of Interior
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43 CFR Part 50
Procedures for Reestablishing a Formal Government-to-Government
Relationship With the Native Hawaiian Community; Final Rule
Federal Register / Vol. 81 , No. 199 / Friday, October 14, 2016 /
Rules and Regulations
[[Page 71278]]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 50
[Docket No. DOI-2015-0005; 145D010DMDS6CS00000.000000 DX.6CS252410]
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule establishes the Secretary of the Interior's
(Secretary) administrative process for reestablishing a formal
government-to-government relationship with the Native Hawaiian
community to more effectively implement the special political and trust
relationship that Congress established between that community and the
United States. The 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 rule establishes an
administrative procedure and criteria that the Secretary would use if
the Native Hawaiian community forms a unified government that then
seeks a formal government-to-government relationship with the United
States. Consistent with the Federal policy of self-determination and
self-governance for indigenous communities, the Native Hawaiian
community itself would determine whether and how to reorganize its
government.
DATES: This rule is effective November 14, 2016.
FOR FURTHER INFORMATION CONTACT: Jennifer Romero, Senior Advisor for
Native Hawaiian Affairs, Office of the Secretary, 202-208-3100.
SUPPLEMENTARY INFORMATION:
(I) Executive Summary
(II) Background
(III) Overview of Final Rule
(A) How the Rule Works
(B) Major Changes
(C) Key Issues
(D) Section-by-Section Analysis
(IV) Public Comments on the Proposed Rule and Responses to Comments
(A) Overview
(B) Responses to Significant Public Comments on the Proposed
Rule
(1) Issue-Specific Responses to Comments
(2) Section-by-Section Responses to Comments
(C) Tribal Summary Impact Statement
(V) Public Meetings and Tribal Consultations
(VI) Procedural Matters
(I) Executive Summary
The final rule sets forth an administrative procedure and criteria
that the Secretary would use if the Native Hawaiian community forms a
unified government that then seeks a formal government-to-government
relationship with the United States. The rule does not provide a
process for reorganizing a Native Hawaiian government. The decision to
reorganize a Native Hawaiian government and to establish a formal
government-to-government relationship is for the Native Hawaiian
community to make as an exercise of self-determination.
Congress already federally acknowledged or recognized the Native
Hawaiian community by establishing a special political and trust
relationship through over 150 enactments. This unique special political
and trust relationship exists even though Native Hawaiians have not had
an organized government since the overthrow of the Kingdom of Hawaii in
1893. Accordingly, this rule provides a process and criteria for
reestablishing a formal government-to-government relationship that
would enable a reorganized Native Hawaiian government to represent the
Native Hawaiian community and conduct government-to-government
relations with the United States under the Constitution and applicable
Federal law. The term ``formal government-to-government relationship''
in this rule refers to the working relationship with the United States
that will occur if the Native Hawaiian community reorganizes and
submits a request consistent with the rule's criteria.
Importantly, the process set out in this rule is optional and
Federal action will occur only upon an express, formal request from the
reorganized Native Hawaiian government. The rule also provides a
process for public comment on the request and a process for the
Secretary to receive, evaluate, and act on the request.
(II) Background
The Native Hawaiian community has a unique legal relationship with
the United States, as well as inherent sovereign authority that has not
been abrogated or relinquished, as evidenced by Congress's consistent
treatment of this community over an extended period of time. Over many
decades, Congress enacted more than 150 statutes recognizing and
implementing a special political and trust relationship with the Native
Hawaiian community. ``Recognition is a formal political act [that]
permanently establishes a government-to-government relationship between
the United States and the recognized tribe as a `domestic dependent
nation,' and imposes on the government a fiduciary trust relationship
to the tribe and its members. Recognition is also a constitutive act:
It institutionalizes the tribe's quasi-sovereign status, along with all
the powers accompanying that status such as the power to tax, and to
establish a separate judiciary.'' Cohen's Handbook of Federal Indian
Law sec. 3.02[3], at 134 (2012 ed.) (citing H.R. Rep. No. 103-781, at 2
(1994)) (footnotes and internal quotation marks and brackets omitted).
A government-to-government relationship encompasses the political
relationship between sovereigns and a working relationship between the
officials of those two sovereigns. Although the Native Hawaiian
community has been without a formal government for over a century,
Congress recognized the continuity of the Native Hawaiian community
through over 150 separate statutes, which ensures it has a special
political and trust relationship with the United States. At the same
time, a working relationship between government officials is absent.
This rulemaking provides the Native Hawaiian community with an
opportunity to have a working relationship, referred to as the ``formal
government-to-government relationship.'' The Native Hawaiian
community's current relationship with the United States has
substantively all of the other attributes of a government-to-government
relationship, and might be described as a ``sovereign to sovereign'' or
``government to sovereign'' relationship. It is important to note that
a special political and trust relationship may continue to exist even
without a formal government-to-government relationship.
Among other things, the more than 150 statutes that Congress has
enacted over many decades 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 Indian tribes in the continental United States.
But during this same period, the United States has not had a formal
government-to-government relationship with Native Hawaiians 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
[[Page 71279]]
overthrow the Kingdom of Hawaii. Many Native Hawaiians contend that
their community's opportunities to thrive would be significantly
bolstered through a sovereign Native Hawaiian government whose
leadership could engage the United States in a formal government-
togovernment 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 Constitution, treaties, statutes, Executive Orders, administrative
regulations, and judicial precedent. The Federal Government's
relationship with federally-recognized tribes includes 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, developed processes to
help tribes in the continental United States establish mechanisms to
conduct formal 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 an administrative process for establishing a formal
government-to-government relationship has long been denied to members
of one of the Nation's largest indigenous communities: Native
Hawaiians. This 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.'' Native Hawaiian
Education Act, 20 U.S.C. 7512(2); accord Native Hawaiian Health Care
Act, 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 (2015), available at https://www.regulations.gov/document?D=DOI-2015-0005-4290 (comment number 4290)
(Moolelo Ea O Na Hawaii); Ralph S. Kuykendall, The Hawaiian Kingdom
Vol. I: 1778-1854, Foundation and Transformation (1947). Kamehameha I's
reign ended with his death in 1819 but the Kingdom of Hawaii, led by
Native Hawaiian monarchs, continued. Id.
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 Hawaiian monarchs.'' 42 U.S.C.
11701(6); accord 20 U.S.C. 7512(4); see Rice, 528 U.S. at 504 (citing
treaties that the United States and the Kingdom of Hawaii concluded in
1826, 1849, 1875, and 1887); S. Rep. No. 103-126 (1993) (compiling
conventions, treaties, and presidential messages extending U.S.
diplomatic recognition to the Hawaiian government); Moolelo Ea O Na
Hawaii at 209-11, 240-47. But during that same period, Westerners
became ``increasing[ly] involve[d] . . . in the economic and political
affairs of the Kingdom,'' Rice, 528 U.S. at 501, 504-05, over vocal
protest by Native Hawaiians. See, e.g., Kuykendall at 258-60. An
example of such involvement was adoption of the 1887 ``Bayonet
Constitution'' that resulted in mass disenfranchisement of Native
Hawaiians by imposing wealth and property qualifications on voters,
among other changes in Kingdom governance. See, e.g., Noenoe K. Silva,
Kanaka Maoli Resistance to Annexation, 1 Oiwi: A Native Hawaiian
Journal 43 (1998); Kuykendall, The Hawaiian Kingdom Vol. III: 1874-
1893, The Kalakaua Dynasty (1967); Neil M. Levy, Native Hawaiian Land
Rights, 63 Cal. L. Rev. 848, 861 (1975) (chronicling the displacement
of Native Hawaiians from their land). Although Native Hawaiian monarchs
continued to rule the Kingdom, the Bayonet Constitution triggered mass
meetings and other forms of organized political protest by Native
Hawaiians. This led to the establishment of Hui Kalaiaina, a Native
Hawaiian political organization that advocated the replacement of that
Constitution and protested subsequent annexation efforts. See Noenoe K.
Silva, Aloha Betrayed 127-29 (2004); S. Rep. No. 107-66, at 19 n.29
(2001). It also foreshadowed the overthrow of the Kingdom in 1893 by a
small group of non-Native Hawaiians, aided by the United States
Minister to Hawaii and the Armed Forces of the United States. See
generally Moolelo Ea O Na Hawaii at 387-402; 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.); Kuykendall, The Hawaiian Kingdom Vol. III at 582-
605.
The Kingdom was overthrown in January 1893 by a ``Committee of
Safety'' comprised of American and European sugar planters, descendants
of missionaries, and financiers. S. Rep. No. 103-126, at 21 (1993). The
Committee established a provisional government, which later declared
itself to be the Republic of Hawaii, and the U.S. Minister to the
Kingdom of Hawaii ``immediately extended diplomatic recognition'' to
the provisional government ``without the consent of Queen Liliuokalani
or the Native Hawaiian people.'' Id. at 21. Indeed, in his December 18,
1893 message to Congress concerning the Hawaiian Islands, President
Grover Cleveland described the provisional government as an ``oligarchy
set up without the assent of the [Hawaiian] people,'' id. at 32, and
noted, ``there is no pretense of any [ ] consent on the part of the
Government of the Queen, which at that time was undisputed and was both
the de facto and the de jure government,'' and that ``it appears that
Hawaii was taken possession of by the United State forces without the
consent or wish of the government of the islands, or of anybody else so
far as shown, except the United States Minister.'' Id. at 27-28
(quoting President Cleveland's Message Relating to the Hawaiian
Islands--December 18, 1893) (italics in original). Following the
overthrow of Hawaii's monarchy, Queen Liliuokalani, while yielding her
authority under protest to the United States, called for
[[Page 71280]]
reinstatement of Native Hawaiian governance. Joint Resolution of
November 23, 1993, 107 Stat. 1511 (Apology Resolution). 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 45-50. In
1895, Hawaiian nationalists loyal to Queen Liliuokalani attempted to
regain control of the Hawaiian government. Id. at 49-50. 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.
See Moolelo Ea O Na Hawaii at 424-28. These ``Kue Petitions'' are part
of this rule's administrative record.
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.'' Native Hawaiian Health Care Act, 42 U.S.C.
11701(11). The Republic of Hawaii ceded 1.8 million acres of land to
the United States ``without the consent of or compensation to the
Native Hawaiian people of Hawaii or their sovereign government,''
Apology Resolution at 1512, and Congress passed a joint resolution--the
Newlands Resolution (also known as the Joint Resolution of
Annexation)--annexing the islands in 1898. See Rice, 528 U.S. at 505.
Under the Newlands Resolution, the United States accepted the
Republic of Hawaii's cession of ``all rights of sovereignty of
whatsoever kind in and over the Hawaiian Islands and their
dependencies,'' and resolved that the Hawaiian Islands were ``annexed
as part of the territory of the United States'' and became subject to
the ``sovereign dominion'' of the United States. No consent to these
terms was provided by the Kingdom of Hawaii; rather, the joint
resolution ``effectuated a transaction between the Republic of Hawaii
and the United States'' without direct relinquishment by the Native
Hawaiian people of their claims to sovereignty as a people or over
their national lands to the United States. Moolelo Ea O Na Hawaii at
431 (citing the Apology Resolution). Indeed, at the time of annexation,
Native Hawaiians did not have an opportunity to vote on whether they
favored annexation by the United States. Jon M. Van Dyke, The Political
Status of the Native Hawaiian People, 17 Yale L. & Pol'y Rev. 95, 103
(1998).
The Hawaiian Organic Act, enacted in 1900, established the
Territory of Hawaii, extended the U.S. Constitution to the territory,
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 (Organic Act).
Hawaii was a U.S. territory for six decades prior to becoming a
State, during which time the Hawaiian government's ``English-mainly''
policy of the late 1850s was replaced by the territorial government's
policy of ``English-only'' and outright suppression of the Hawaiian
language in public schools. See Paul F. Lucas, E Ola Mau Kakou I Ka
Olelo Makuahine: Hawaiian Language Policy and the Courts, 34 Hawaiian
J. Hist. 1 (2000); see also Kuykendall, The Hawaiian Kingdom Vol. I at
360-62. See generally Maenette K.P. Ah Nee Benham & Ronald H. Heck,
Culture and Educational Policy in Hawaii: The Silencing of Native
Voices ch. 3 (1998); Native Hawaiian Law: A Treatise at 1259-72 (Melody
Kapilialoha MacKenzie ed., 2015). But various entities connected to the
Kingdom of Hawaii adopted other methods of continuing their internal
governance and social cohesion. Specifically, the Royal Societies, the
Bishop Estate (now Kamehameha Schools), the Alii trusts, and civic
clubs are organizations, each with direct ties to their royal Native
Hawaiian founders, and are prime examples of Native Hawaiians'
continuing efforts to keep their culture, language, governance, and
community alive. See Moolelo Ea O Na Hawaii at 560-63; id., appendix 4.
Indeed, post-annexation, Native Hawaiians maintained their separate
identity as a single distinct 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 (the Hawaiian
Protective Association) was an 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 at 501-07. The Association established twelve 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 provide for the
welfare of the Native Hawaiian people by setting aside and protecting
Hawaiian home lands.
(B) Congress's Recognition of Native Hawaiians as a Political Community
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,'' Native Hawaiian Health Care Improvement Act, 42 U.S.C.
11701(1); accord Native Hawaiian Education Act, 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 Indian 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.'' Native Hawaiian Health Care Improvement Act, 42
U.S.C. 11701(17); see H.R. Rep. No. 66-839, at
[[Page 71281]]
11 (1920) (finding constitutional precedent for the HHCA ``in previous
enactments granting Indians . . . special privileges in obtaining and
using the public lands''); see also Native Hawaiian Education Act, 20
U.S.C. 7512(12)(B). Indeed, since Hawaii's admission to the United
States, Congress has enacted dozens of statutes on behalf of Native
Hawaiians. For example, 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 of 1988, 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. 3221; 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., Kaloko-Honokokau
National Park Re-establishment Act, 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. Native Hawaiian
Health Care Improvement Act, 42 U.S.C. 11701(19); accord Native
Hawaiian Education Act, 20 U.S.C. 7512(13); see, e.g., American Indian
Religious Freedom Act, 42 U.S.C. 1996-1996a. See generally Native
Hawaiian Education Act, 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 Hawaiian Homelands Homeownership Act, 114 Stat. 2874-
75, 2968-69 (2000).
These more recent enactments followed Congress's enactment of the
HHCA, a Federal law that 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 at 507-09, 520-35. The HHCA was enacted
in response to the precipitous decline in the Native Hawaiian
population since Western contact; by 1919, the Native Hawaiian
population declined by some estimates from several hundred thousand in
1778 to only 22,600. 20 U.S.C. 7512(7). Delegate Prince Kuhio, Native
Hawaiian politician and Hawaiian Civic Clubs co-founder John Wise, and
U.S. Secretary of the Interior Franklin Lane urged Congress to set
aside land to ``rehabilitate'' and help Native Hawaiians reestablish
their traditional way of life. See H.R. Rep. No. 66-839, at 4
(statement of Secretary Lane) (``One thing that impressed me was the
fact that the natives of the islands, who are our wards, I should say,
and for whom in a sense we are trustees, are falling off rapidly in
numbers and many of them are in poverty''). Other HHCA 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.'').
Congress found constitutional precedent for the HHCA in previous
enactments addressing Indian rights in using public lands, H.R. Rep.
No. 66-839, at 11, and has since acknowledged that the HHCA
``affirm[ed] the trust relationship between the United States and the
Native Hawaiians.'' 42 U.S.C. 11701(13); accord 20 U.S.C. 7512(8).
In 1938, Congress again exercised its trust responsibility by
preserving 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
contained two provisions expressly recognizing Native Hawaiians and
requiring the State of Hawaii to manage lands for the benefit of the
indigenous Native Hawaiian people. Act of March 18, 1959, 73 Stat. 4
(Admission Act). 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 trust for specific purposes, including the
betterment of 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 an oversight role with
respect to the home lands. See Admission Act sec. 4; Hawaiian Home
Lands Recovery Act (HHLRA), Act of November 2, 1995, 109 Stat. 357.
Congress again recognized in more recent statutes 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.'' Native Hawaiian Education Act, 20 U.S.C.
7512(12)(A); accord Hawaiian Homelands Homeownership Act, 114 Stat.
2968 (2000); Native Hawaiian Health Care Improvement Act, 42 U.S.C.
11701(1) (``The Congress finds that: Native Hawaiians comprise a
distinct and unique indigenous people with a historical continuity to
the original inhabitants of the Hawaiian archipelago whose society was
organized as a Nation prior to the arrival of the first nonindigenous
people in 1778.''); see also Hawaiian Homelands Homeownership Act, 114
Stat. 2966 (2000); 114 Stat. 2872, 2874 (2000); Consolidated
Appropriations Act, 118 Stat. 445 (2004) (establishing the U.S. Office
of Native Hawaiian Relations). Notably, in 1993, Congress enacted the
Apology Resolution to acknowledge the 100th anniversary of the
overthrow of the Kingdom of Hawaii and to offer an apology to Native
Hawaiians. In that Resolution, Congress acknowledged that the overthrow
of the Kingdom of Hawaii resulted in the suppression of Native
Hawaiians' ``inherent sovereignty'' and deprived them of their ``rights
to self-determination,'' and that ``long-range economic and social
changes in Hawaii over the nineteenth and early twentieth centuries
have been devastating to the population and to the health and well-
being of the Hawaiian people.'' It further recognized 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.''
Apology Resolution at 1512-13; see Native Hawaiian Education Act, 20
U.S.C. 7512(20); Native Hawaiian Health Care Improvement Act, 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.'' Apology Resolution at 1513. Congress also urged the President
of the United States to ``support reconciliation efforts
[[Page 71282]]
between the United States and the Native Hawaiian people.'' Id. at
1511. These Congressional findings and other Congressional actions
demonstrate that indigenous Hawaiians, like numerous tribes in the
continental United States, have both an historical and existing
cohesive political and social existence, derived from their inherent
sovereign authority, which has survived despite repeated external
pressures to abandon their way of life and assimilate into mainstream
American society.
The Executive Branch also made findings and recommendations
following a series of hearings and meetings with the Native Hawaiian
community in 1999, when the U.S. Departments of the Interior and of
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 found that ``the injustices
of the past have severely damaged the culture and general welfare of
Native Hawaiians,'' and that exercising self-determination over their
own affairs would enable Native Hawaiians to ``address their most
pressing political, health, economic, social, and cultural needs.''
Department of the Interior & Department of Justice, From Mauka to Makai
at 4, 46-48, 51 (2000) (citing Native Hawaiians' poor health, poverty,
homelessness, and high incarceration rates, among other socioeconomic
impacts). The report ultimately recommended as its top priority that
``the Native Hawaiian people should have self-determination over their
own affairs within the framework of Federal law.'' Id. at 3-4.
Congress also found it significant 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.'' Native Hawaiian Education Act, 20 U.S.C. 7512(21); see
also Native Hawaiian Health Care Improvement Act, 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 it repeatedly 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 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.'' Hawaiian Homelands Homeownership Act, 114 Stat. 2968
(2000). Thus, ``the political status of Native Hawaiians is comparable
to that of American Indians and Alaska Natives.'' Native Hawaiian
Education Act, 20 U.S.C. 7512(12)(B), (D). Congress's treatment of
Native Hawaiians flows from that political status of the Native
Hawaiian community.
Congress, under its plenary authority over Indian affairs,
repeatedly acknowledged its special relationship with the Native
Hawaiian community since the overthrow of the Kingdom of Hawaii more
than a century ago. Congress concluded that it has a trust obligation
to Native Hawaiians in part because it bears responsibility for the
overthrow of the Kingdom of Hawaii and suppression of Native Hawaiians'
sovereignty over their land. But the Federal Government has not
maintained a formal government-togovernment relationship with the
Native Hawaiian community as 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 and self-governance of Native
Hawaiians 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 formal government-to-
government relationship.
Consistent with the HHCA, which is the first Congressional
enactment clearly recognizing the Native Hawaiian community's special
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 implementation of the Native Hawaiian
community's special trust relationship with the United States affirmed
the continuing Federal role in Native Hawaiian affairs, such as 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 Consolidated Appropriations Act, 118 Stat. 445-46 (2004).
(C) Actions by the Continuing Native Hawaiian Community
As discussed above, Native Hawaiians were active participants in
the political life of the Kingdom of Hawaii, and this activity
continued following the overthrow through coordinated resistance to
annexation and a range of other organized forms of political and social
organizations. See generally Silva, Aloha Betrayed; Silva, 1 Oiwi: A
Native Hawaiian Journal 40 (examining Hawaiian-language print media and
documenting the organized Native Hawaiian resistance to annexation);
Silva, I Ku Mau Mau: How Kanaka
[[Page 71283]]
Maoli Tried to Sustain National Identity Within the United States
Political System (documenting mass meetings, petitions, and citizen
testimonies by Native Hawaiian political organizations during and after
the annexation period). The Native Hawaiian community maintained its
cohesion and its distinct political voice 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 at 535-
55; see id. at 606-30 & appendix 4 (listing organizations, their
histories, and their accomplishments). Native Hawaiians' organized
action to advance Native Hawaiian self-determination resulted in the
passage of a set of amendments to the State Constitution in 1978 to
reaffirm the ``solemn trust obligation and responsibility to native
Hawaiians'' by providing additional protection and recognition of
Native Hawaiian interests--a key example of political action in the
community. Haw. Rev. Stat. 10-1(a) (2016). Those amendments established
the Office of Hawaiian Affairs (OHA), which administers trust monies to
benefit the Native Hawaiian community and generally promotes Native
Hawaiian affairs, Hawaii Const. art. XII, secs. 4-6, and provided for
recognition of certain traditional and customary legal rights of Native
Hawaiians, id. art. XII, sec. 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 active engagement within
the community on issues of self-determination and preservation of
Native Hawaiian culture and traditions: 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 nonprofit 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 (2016). 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 also
Native Hawaiian Law: A Treatise at 779-1165, encouraged development of
traditional justice programs, including a method of alternative dispute
resolution, ``hooponopono,'' that the Native Hawaiian Bar Association
endorses. 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 unique history of Hawaii and
the history of separate Congressional enactments regarding the two
groups. Kahawaiolaa v. Norton, 386 F.3d 1271, 1283 (9th Cir. 2004),
cert. denied, 545 U.S. 1114 (2005). 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 believed it appropriate for the Department to apply its expertise
to ``determine whether native Hawaiians, or some native Hawaiian
groups, could be acknowledged on a government-to-government basis.''
\1\ Id.
---------------------------------------------------------------------------
\1\ The Department carefully reviewed the Kahawaiolaa briefs, in
which the United States suggested that Native Hawaiians have not
been recognized by Congress as an Indian tribe. That suggestion,
however, must be read in the context of the Kahawaiolaa litigation,
which challenged the validity of regulations determining which
Native groups should be recognized as tribes eligible for Federal
Indian programs, services, and benefits and as having a formal
government-to-government relationship with the United States. See 25
CFR 83.2 (2004). As noted throughout this rule, Congress has not
recognized Native Hawaiians as eligible for general Federal Indian
programs, services, and benefits; and while Congress has provided
separate programs, services, and benefits for Native Hawaiians in
the exercise of its constitutional authority with respect to
indigenous communities in the United States, Congress has not itself
established a formal government-to-government relationship with the
Native Hawaiian community. That matter has been left to the
Executive or for later action by Congress itself. So, in context,
the suggestion in the United States' Kahawaiolaa briefs is not
inconsistent with the positions taken in this rulemaking. To the
extent that other positions taken in this rulemaking may be seen as
inconsistent with statements or positions of the United States in
the Kahawaiolaa litigation, for the reasons stated in the proposed
rule, and in this final rule, the views in this rulemaking reflect
the Department's policy.
---------------------------------------------------------------------------
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
[[Page 71284]]
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
legal relationship with the Native Hawaiian people'' and established a
process for ``the Native Hawaiian people to exercise their inherent
rights as a distinct, indigenous, native community to reorganize a
single unified Native Hawaiian governing entity.'' Some in Congress,
however, expressed a preference for allowing the Native Hawaiian
community to petition 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).
In 2011, in Act 195, the State of Hawaii 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 established the Native Hawaiian Roll Commission to oversee
the process for compiling the roll of qualified Native Hawaiians. The
Commission accepted registrations from individuals subject to
verification of their Native Hawaiian ancestry while also ``pre-
certifying'' for the roll individuals who were listed on any registry
of Native Hawaiians maintained by OHA. Haw. Rev. Stat. 10H-
3(a)(2)(A)(iii) (2015). On July 10, 2015, the Commission certified an
initial list of more than 95,000 qualified Native Hawaiians, as defined
by Haw. Rev. Stat. 10H-3 (2015). In addition to the initial list, the
Commission certified supplemental lists of qualified Native Hawaiians
and published a compilation of the certified lists online--the
Kanaiolowalu. See Kanaiolowalu, Certified List (Oct. 19, 2015), https://www.kanaiolowalu.org/list (last visited Apr. 19, 2016).
In December 2014, a private nonprofit organization known as Nai
Aupuni formed to support efforts to achieve Native Hawaiian self-
determination. It originally planned to hold a month-long, vote-by-mail
election of delegates to an Aha, a convention to consider paths for
Native Hawaiian self-governance. Nai Aupuni limited voters and
delegates to Native Hawaiians and it relied on the roll compiled by the
Commission to identify Native Hawaiians. Delegate voting was to occur
throughout the month of November 2015, but a lawsuit by six individuals
seeking to halt the election delayed those efforts. See Akina v.
Hawaii, 141 F. Supp. 3d 1106, 1111 (D. Haw. 2015).
Plaintiffs alleged, among other things, violations of the Fifteenth
Amendment to the U.S. Constitution and the Voting Rights Act. The
district court ruled that plaintiffs did not demonstrate a likelihood
of success on their claims and denied their motion for a preliminary
injunction. The district court also found that the scheduled election
was a private election ``for delegates to a private convention, among a
community of indigenous people for purposes of exploring self-
determination, that will not--and cannot--result in any federal, state,
or local laws or obligations by itself.'' The court found it was ``not
a state election.'' Plaintiffs appealed to the Ninth Circuit.
During the appeal, Nai Aupuni mailed the delegate ballots to
certified voters and the voting for delegates began. Plaintiffs filed
an urgent motion for an injunction pending appeal in the Ninth Circuit,
which was denied. Plaintiffs then filed an emergency application for an
injunction pending appellate review in the U.S. Supreme Court on
November 23, 2015. Justice Kennedy enjoined the counting of ballots on
November 27, 2015. Five days later, the Supreme Court, by a vote of 5
to 4, granted plaintiffs' request and enjoined the counting of ballots
and the certifying of winners, pending the final disposition of the
appeal in the Ninth Circuit. See Akina v. Hawaii, 136 S. Ct. 581
(2015). These orders were not accompanied by opinions. On August 29,
2016, the Ninth Circuit dismissed plaintiffs' appeal of the
preliminary-injunction order as moot. Akina v. Hawaii, No. 15-17134,
2016 WL 4501686 (9th Cir. Aug. 29, 2016). The litigation remained
pending in Federal district court at the time this final rule was
issued.
After the Supreme Court enjoined the counting of the ballots, Nai
Aupuni, citing concerns about the potential for years of delay in
litigation, terminated the election and chose to never count the votes.
Instead, Nai Aupuni invited all registered candidates participating in
the election to participate in the Aha. During February 2016, nearly
130 Native Hawaiians took part in the Aha. On February 26, 2016, by a
vote of 88-to-30 with one abstention (not all participants were present
to vote), the Aha delegates voted to adopt a constitution. See Press
Release, Native Hawaiian Constitution Adopted (Feb. 26, 2016);
Constitution of the Native Hawaiian Nation (2016), available at https://www.aha2016.com (last visited Apr. 19, 2016). Aha participants also
adopted a declaration that lays out a history of Native Hawaiian self-
governance ``so the world may know and come to understand our cause
towards self-determination through self-governance.'' Declaration of
the Sovereignty of the Native Hawaiian Nation: An Offering of the Aha,
available at https://www.aha2016.com (last visited Apr. 19, 2016).
The development of the roll of qualified Native Hawaiians, the
effort to elect delegates to an Aha, and the adoption of a constitution
by the Aha participants are all events independent of this rule. The
purpose of the rule is to provide a process and criteria for
reestablishing a formal government-to-government relationship that
would enable a reorganized Native Hawaiian government to represent the
Native Hawaiian community and conduct formal government-to-government
relations with the United States under the Constitution and applicable
Federal law. These events, however, provide context and significant
evidence of the community's interest in reorganizing and reestablishing
the formal government-to-government relationship that warrants the
Secretary proceeding with this rulemaking process.
(III) Overview of Final Rule
The final rule reflects the totality of the comments from the
Advance Notice of Proposed Rulemaking (ANPRM) and the Notice of
Proposed Rulemaking (NPRM or proposed rule) stages of the rulemaking
process in which commenters urged the Department to promulgate a rule
announcing a procedure and criteria by which the
[[Page 71285]]
Secretary could reestablish a formal government-to-government
relationship with the Native Hawaiian community. The Department will
rely on this final rule as the sole administrative avenue for doing so
with the Native Hawaiian community.
In accordance with the wishes of the Native Hawaiian community as
expressed in the comments on the ANPRM and the NPRM, the final rule
does 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 the request satisfies the rule's requirements,
enabling the Secretary to reestablish a formal government-to-government
relationship with the 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 is optional, and Federal action would
occur only upon an express formal request from the reorganized Native
Hawaiian government.
Existing Federal Legal Framework. In adopting this rulemaking, the
Department must adhere to the legal framework, discussed above, that
Congress already established 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 within
the scope of the Federal Government's powers over Native American
affairs and with which the United States has already acknowledged or
recognized an ongoing special political and trust relationship.
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 ``[t]hrough the enactment of
the Hawaiian Homes Commission Act, 1920, Congress affirmed the special
relationship between the United States and the Native Hawaiians,'' 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). 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.
Authority.\2\ The authority to issue this rule is vested in the
Secretary by 25 U.S.C. 2, 9, 479a, 479a-1; 43 U.S.C. 1457; Act of
January 23, 2004, sec. 148, 118 Stat. 445; and 5 U.S.C. 301. See also
United States v. Holliday, 70 U.S. 407, 419 (1865) (``In reference to
all matters of [tribal status], it is the rule of this court to follow
the action of the executive and other political departments of the
government, whose more special duty it is to determine such
affairs.'').
---------------------------------------------------------------------------
\2\ Effective September 1, 2016, the U.S. House of
Representatives' Office of the Law Revision Counsel reclassified
certain statutory provisions in Title 25 cited in the proposed rule.
Because the reclassified version of Title 25 is not widely available
in printed form as of the date of this publication, the Department
retained the statutory citations referenced in the proposed rule.
The new citations and more information about the reclassification of
Title 25 can be found at: https://uscode.house.gov/editorialreclassification/t25/ (last visited Sept. 14,
2016).
---------------------------------------------------------------------------
Congress has plenary power with respect to Indian affairs. See
Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2030 (2014);
United States v. Lara, 541 U.S. 193, 200 (2004); Morton v. Mancari, 417
U.S. 535, 551-52 (1974). Congress's plenary power over Indian affairs
flows in part from the Indian Commerce Clause, which authorizes
Congress to ``regulate Commerce with . . . Indian Tribes.'' \3\ U.S.
Const. art. I, sec. 8, cl. 3. ``[N]ot only does the Constitution
expressly authorize Congress to regulate commerce with the Indian
tribes, but long continued legislative and executive usage and an
unbroken current of judicial decisions have attributed to the United
States . . . the power and the duty of exercising a fostering care and
protection over all dependent Indian communities.'' United States v.
Sandoval, 231 U.S. 28, 45-46 (1913). Congress's authority to aid Indian
communities, moreover, extends to all such communities within the
borders of the United States, ``whether within its original territory
or territory subsequently acquired.'' Sandoval, 231 U.S. at 46. Thus,
despite differences in language, culture, religion, race, and community
structure, Native people in the East, Oneida Indian Nation v. County of
Oneida, 414 U.S. 661 (1974), the Plains, Kansas Indians, 72 U.S. (5
Wall.) 737 (1867), the Southwest, Sandoval, 231 U.S. at 46, the Pacific
Northwest, Washington v. Yakima Indian Nation, 439 U.S. 463 (1979), and
Alaska, Organized Village of Kake v. Egan, 369 U.S. 60 (1962), all fall
within Congress's Indian affairs power. See Solicitor's Opinion, Status
of Alaskan Natives, 53 I.D. 593, 605 (Decisions of the Department of
the Interior, 1932) (It is ``clear that no distinction has been or can
be made between the Indians and other natives of Alaska so far as the
laws and relations of the United States are concerned whether the
Eskimos and other natives are of Indian origin or not as they are all
wards of the Nation, and their status is in material respects similar
to that of the Indians.''); Felix Cohen's Handbook of Federal Indian
Law, at 401, 403 (1942 ed.) (Constitution is source of authority over
Alaska Natives). So too, Congress's Indian affairs power under the
Constitution extends to the Native Hawaiian community. See Organic Act
(applying Constitution to Territory of Hawaii and declaring all persons
who were citizens of the Republic of Hawaii on August 12,
[[Page 71286]]
1898 citizens of the United States); see also Nationality Act of 1940,
54 Stat. 1137, 1138 (making every ``person born in the United States to
a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe'' a
citizen).
---------------------------------------------------------------------------
\3\ ``The term ``Indian'' was first applied by Columbus to the
native people of the New World based on the mistaken belief that he
had found a sea route to India. The term has been understood ever
since to refer to the indigenous people who inhabited the New World
before the arrival of the first Europeans. See Worcester v. Georgia,
31 U.S. (6 Pet.) 515, 544 (1832) (referring to Indians as ``those
already in possession [of the land], either as aboriginal occupants,
or as occupants by virtue of a discovery made before the memory of
man''); Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 572-74 (1823)
(referring to Indians as ``original inhabitants'' or ``natives'' who
occupied the New World before discovery by ``the great nations of
Europe'').
At the time of the Framers and in the nineteenth century, the
terms ``Indian,'' ``Indian affairs,'' and ``Indian tribes'' were
used to refer to the indigenous peoples not only of the Americas but
also of the Caribbean and areas of the Pacific extending to
Australia, New Zealand, and the Philippines. See, e.g., W. Dampier,
A New Voyage Around the World (1697); Joseph Banks, The Endeavor
Journal of Sir Joseph Banks (1770); William Bligh, Narrative of the
Mutiny on the Bounty (1790); A.F. Gardiner, Friend of Australia
(1830); James Cook, A Voyage to the Pacific Ocean (1784) (referring
to Native Hawaiians).
---------------------------------------------------------------------------
Exercising this plenary power over Indian affairs, Congress
delegated to the President the authority to ``prescribe such
regulations as he may think fit for carrying into effect the various
provisions of any act relating to Indian affairs, and for the
settlement of the accounts of Indian affairs.'' 25 U.S.C. 9. Congress
charged the Secretary with directing, consistent with ``such
regulations as the President may prescribe,'' the ``management of all
Indian affairs and of all matters arising out of Indian relations.'' 25
U.S.C. 2. And Congress expressly authorized the Secretary to supervise
``public business relating to . . . Indians,'' 43 U.S.C. 1457(10), and
to ``prescribe regulations for the government of [the Department of the
Interior] . . . [and for] the distribution and performance of its
business,'' 5 U.S.C. 301.
Congress recognized and ratified its delegation of authority to the
Secretary to recognize self-governing Native American groups in the
Federally Recognized Indian Tribe List Act of 1994, 108 Stat. 4791 (the
List Act). See 25 U.S.C. 479a & note (recognizing the Secretary's
authority to acknowledge that Native American groups ``exist as an
Indian tribe''). The Congressional findings included in the List Act
confirm the ways in which an Indian tribe gains acknowledgment or
recognition from the United States, including that ``Indian tribes
presently may be recognized by Act of Congress . . . .'' 25 U.S.C. 479a
note. Here, Congress recognized Native Hawaiians through more than 150
separate statutes. At the same time, the language of the List Act's
definition of the term ``Indian tribe'' is broad and encompasses the
Native Hawaiian community. See 25 U.S.C. 479a(2).\4\
---------------------------------------------------------------------------
\4\ As discussed more fully in Section (IV)(C), Native Hawaiians
would not be added to the list that the Secretary is required to
publish under sec. 104 of the List Act, 25 U.S.C. 479a-1(a), because
Congress provides a separate suite of programs and services targeted
directly to Native Hawaiians and not through programs broadly
applicable to Indians in the continental United States.
---------------------------------------------------------------------------
Over many decades and more than 150 statutes, Congress exercised
its plenary power over Indian affairs to recognize that the Native
Hawaiian community exists as an Indian tribe within the meaning of the
Constitution. Through these statutes, the United States maintains a
special political and trust relationship with the Native Hawaiian
community. Congress also charged the Secretary with the duty to
``effectuate and implement the special legal relationship between the
Native Hawaiian people and the United States.'' Act of January 23,
2004, sec. 148, 118 Stat. 445. The Secretary's promulgation of a
process and criteria by which the United States may reestablish a
formal government-to-government relationship with a reorganized Native
Hawaiian government whose request satisfies the rule's requirements
simply acknowledges and implements what Congress already made clear on
more than 150 occasions, stretching back nearly a century. 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; HHCA,
42 Stat. 108; Admission Act, 73 Stat. 4; Apology Resolution, 107 Stat.
1510; HHLRA, 109 Stat. 357 (1995).
Reestablishment of a formal government-to-government relationship
would allow the United States to more effectively implement the special
political and trust relationship that Congress established between the
United States and the Native Hawaiian community and administer the
Federal programs, services, and benefits that Congress created
specifically for the Native Hawaiian community. As discussed above,
Native Hawaiians are indigenous people of the United States who have
retained inherent sovereignty and with whom Congress established a
special political and trust relationship through a course of dealings
over many decades. Congress repeatedly regulated the affairs of the
Native Hawaiian community as it has with other Indian tribes,
consistent with its authority under the Constitution. Hence, Sec.
50.44(a) of the final rule states that upon reestablishment of the
formal government-to-government relationship, the Native Hawaiian
Governing Entity will have the same formal government-to-government
relationship under the United States Constitution as the formal
government-to-government relationship between the United States and a
federally-recognized tribe in the continental United States (subject to
the limitation on programs, services, and benefits appearing in Sec.
50.44(d)), will have the same inherent sovereign governmental
authorities, and will be subject to the same plenary authority of
Congress, see Sec. 50.44(b).
Definitions. Congress employs two definitions of ``Native
Hawaiians,'' which the rule labels as ``HHCA Native Hawaiians'' and
``Native Hawaiians.'' The former is a subset of the latter, so every
HHCA Native Hawaiian is by definition a Native Hawaiian. But the
converse is not true: Some Native Hawaiians are not HHCA Native
Hawaiians.
As used in the rule, the term ``HHCA 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, 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.
Satisfying this definition generally requires that documentation
demonstrating eligibility under HHCA sec. 201(a)(7) be available, such
as official Department of Hawaiian Home Lands (DHHL) records or other
State records. See response to comment (1)(c)(1) below for further
discussion. The availability of such documentation may be attested to
by a sworn statement which, if false, is punishable under Federal or
state law. See, e.g., Haw. Rev. Stat. 710-1062 (2016). Alternatively, a
sworn statement of a close family relative who is an HHCA Native
Hawaiian may be used to establish that a person meets the HHCA's
definition.
The term ``Native Hawaiian,'' as used in the rule, means an
individual who is 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(a)(6); 25
U.S.C. 3001(10); 25 U.S.C. 4221(9); 42 U.S.C. 254s(c); 42 U.S.C.
11711(3). Satisfying this definition generally requires that records
documenting generation-by-generation descent be available, such as
enumeration on a roll or list 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, or through current or
prior enrollment as a Native Hawaiian in a Kamehameha Schools program.
The availability of such documentation may be attested to by sworn
statement which, if false, is punishable under state law. A Native
Hawaiian may also sponsor a close family relative through a sworn
statement attesting that the relative meets the definition of Native
Hawaiian. 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 Native
Hawaiian and by definition a ``Native
[[Page 71287]]
Hawaiian'' as that term is used in this rule.
In keeping with the framework created by Congress, the rule
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 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 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. Recognizing that the community may seek further
explanation on the technical aspects of the rule, including the
ratification process explained below and the use of sworn statements
explained in Section (IV)(B), the Department will provide technical
assistance at the request of the Native Hawaiian community.
Form of ratification. The rule does not fix the form of the
ratification referendum. For example, 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 adopted through other means.
The ratification referendum by the Native Hawaiian community need not
be the same election in which the Native Hawaiian community initially
adopts a governing document. The referendum could be conducted
simultaneously or separately for both HHCA Native Hawaiians and Native
Hawaiians. The ratification process must, however, provide separate
vote tallies for (a) HHCA Native Hawaiian voters and (b) all Native
Hawaiian voters.
Thresholds indicating broad-based community support. To ensure that
the ratification vote reflects the views of the whole Native Hawaiian
community, the turnout in the ratification referendum must be
sufficiently large to demonstrate broad-based community support.
Accordingly, the rule focuses on the number who vote in favor of the
governing document rather than the number of voters who participate in
the ratification referendum. Specifically, the rule requires a minimum
of 30,000 affirmative votes from Native Hawaiian voters, including a
minimum of 9,000 affirmative votes from HHCA Native Hawaiians, as an
objective measure to ensure that the vote represents the views of the
Native Hawaiian community as a whole. The Secretary will only evaluate
a request under this rule that meets this minimum broad-based community
participation threshold.
In addition to this minimum affirmative-vote threshold, the rule
creates a presumption of broad-based community support if the
affirmative votes exceed 50,000, including affirmative votes from at
least 15,000 HHCA Native Hawaiians. If a request meets these thresholds
(50,000 and 15,000), the Secretary would be well justified in finding
broad-based community support among Native Hawaiians.
Explanation of data used to support thresholds. There is no
existing applicable numerical standard for measuring broad-based
community support. The Department accordingly applied its expertise to
develop such a standard based on available data. For reasons explained
in the proposed rule (see 80 FR at 59124-25) and in this rule's
Responses to Comments (Section (IV)(B)), the Department took a range of
evidence into account, including actual data on voter turnout in the
State of Hawaii, which indicates that the above thresholds are
appropriate and achievable in practice. Based on the volume of comments
received on the issue during the proposed-rule stage, the Department
determined there is a need for further explanation about how it
calculated the range of voter turnout. Described below is one of the
reasoned methods the Department used to calculate the numerical
thresholds for community support as well as the ranges for affirmative
votes. The following method illustrates one of the many reasonable
methods for calculating the required thresholds.
Summary
The Department first reviewed Native Hawaiian voter turnout numbers
in Hawaii for national and State elections and determined those numbers
indicate broad-based participation within Hawaii in those elections.
Actual voter data from 1998 supports this conclusion. There were just
over 100,000 Native Hawaiian registered voters, nearly 65,000 of whom
cast ballots in that off-year (i.e., non-presidential) Federal
election. That same year, the total number of registered voters in
Hawaii (Native Hawaiian and non-Native Hawaiian) was about 601,000, and
about 413,000 of those voters 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. The Department concludes that such
turnouts are a valid measure of broad-based participation in elections.
Second, to determine the turnout numbers today that indicate broad-
based participation by the Native Hawaiian community, the Department
estimated the percentage of Native Hawaiian voters within that general
voter turnout. This estimate is based on actual voter data from 1988 to
1998 (see table below). The Department then adjusted that estimate to
account for the growth in the number of Native Hawaiians as a
percentage of the general population of Hawaii, and projected the
percentage of Native Hawaiians within the reported voter turnout in
recent elections in Hawaii, discussed below in more detail.
Third, the Department adjusted the estimate upward to account for
out-of-State Native Hawaiian voters. These calculations result in a
range of the number of anticipated Native Hawaiian voters, between
60,000 and 100,000, which the Department determined indicates broad-
based community participation. The minimum required number of
affirmative votes by Native Hawaiians is based on the low-end figure of
this range, i.e., 30,000.
Finally, the Department estimated the number of affirmative votes
required of HHCA Native Hawaiians to demonstrate their broad-based
support as 30 percent of the Native Hawaiian threshold, since HHCA
Native Hawaiian adults are approximately 30 percent of the Native
Hawaiian adult population, as discussed in more detail below.
Supporting Explanation
Different approaches result in different estimates based on the
broad range of evidence that the Department examined. The Department is
reassured, however, by the fact that different methods produced roughly
similar estimates. Weighing the available data, and applying different
methods to analyze those data, the Department
[[Page 71288]]
concluded that it is reasonable to expect that a Native Hawaiian
ratification referendum would have a turnout somewhere in the range
between 60,000 and 100,000, although a figure outside that range is
possible. The Department concludes that turnout within this range
demonstrates broad-based participation.
Of course, turnout in a Native Hawaiian ratification referendum
could diverge from Native Hawaiian turnout in a regular general
election; but the year-to-year consistency of turnout figures from
regular general elections in Hawaii suggests strong patterns that are
likely to be replicated in a Native Hawaiian ratification referendum.
Generally, more recent data are preferable to older data when
projecting future turnout. If Native Hawaiian voter-turnout data for
the most recent elections existed, the Department would have considered
it. Because such data are not available, however, the Department
analyzed the last six elections in which separate voter-turnout figures
specifically for Native Hawaiians are available (1988 to 1998), as well
as overall (Native Hawaiian and non-Native Hawaiian) voter-turnout
figures for 1988 to 2014, the date of the most recent biennial general
election. The figures are reproduced in the following table:
----------------------------------------------------------------------------------------------------------------
Overall voter
turnout Native
(native Hawaiian
Year Hawaiian and Native Hawaiian voter turnout ** voters as % of
non-native voter turnout
Hawaiian, ***
combined) *
----------------------------------------------------------------------------------------------------------------
1988.......................................... 368,567 48,238.......................... 13.09
1990.......................................... 354,152 49,231.......................... 13.90
1992.......................................... 382,882 51,029.......................... 13.33
1994.......................................... 377,011 55,424.......................... 14.70
1996.......................................... 370,230 52,102.......................... 14.07
1998.......................................... 412,520 64,806.......................... 15.71
2000.......................................... 371,379 Unknown.........................
2002.......................................... 385,462 Unknown.........................
2004.......................................... 431,662 Unknown.........................
2006.......................................... 348,988 Unknown.........................
2008.......................................... 456,064 Unknown.........................
2010.......................................... 385,464 Unknown.........................
2012.......................................... 437,159 Unknown.........................
2014.......................................... 369,642 Unknown.........................
----------------------------------------------------------------------------------------------------------------
* Data from the Hawaii Office of Elections, which recorded on its Web site the actual voter-turnout figures from
presidential-year (e.g., 2012, 2008, 2004) and off-year or gubernatorial (e.g., 2014, 2010, 2006) general
elections in Hawaii.
** For biennial general elections prior to the Supreme Court's decision in Rice v. Cayetano, 528 U.S. 495
(2000), the Office of Elections' Web site shows voter-turnout figures for the State as a whole and also
specifically for Native Hawaiian voters (because only Native Hawaiian voters were qualified to vote in OHA
elections prior to 2000). Starting in 2000, the same source shows voter-turnout figures only for the State as
a whole, that is, for the undifferentiated combination of Native Hawaiians and non-Native Hawaiians.
*** Native Hawaiian voters average 14.13 percent of the voter turnout in these six elections.
These figures show that overall turnout generally increased during
the 1988-to-2014 period, although not always smoothly, and that Native
Hawaiian turnout was doing the same during the 1988-to-1998 period, but
at a somewhat faster rate than the overall turnout was increasing.
These trends are consistent with census data showing Hawaii's
population increasing and showing Hawaii's Native Hawaiian population
increasing more rapidly than its non-Native population.
As the table above shows, overall turnout for this entire period
(1988 to 2014) ranged from a low of 348,988 to a high of 456,064. The
Native Hawaiian percentage of the overall turnout, for the years for
which the table contains such data (1988 to 1998), ranged from a low of
13.1 percent in 1988 (48,238 divided by 368,567) to a high of 15.7
percent in 1998 (64,806 divided by 412,520). Since 1998, the fraction
of the State's population that is Native Hawaiian grew by about 14.4
percent (this figure is derived by extrapolating from data showing
Hawaii's Native Hawaiian population and Hawaii's total population in
the 2000 and 2010 Federal decennial censuses).
Applying the population growth percentage of 14.4 to the voter-
turnout numbers and then applying the Native Hawaiian voter-turnout
percentage figures to those adjusted numbers results in a potential
turnout of in-State Native Hawaiians that ranges from a low of about
52,300 (1.144 x 348,988 x 0.131= 52,300) to a high of about 81,913
(1.144 x 456,064 x 0.157 = 81,913). The Department concludes that this
voter-turnout range would reflect broad-based community participation
of in-State Native Hawaiians.
The rule also accounts for Native Hawaiians residing out-of-State
who can participate in the ratification referendum. The out-of-State
Native Hawaiian population is roughly comparable in size to the in-
State Native Hawaiian population. Many Native Hawaiians living outside
Hawaii remain strongly engaged with the Native Hawaiian community, as
reflected in the substantial number of comments on this rule from
Native Hawaiians residing out-of-State and by many Native Hawaiian
civic organizations in the continental United States. Notwithstanding
the number of comments, the Department concludes that the rate of
participation of this population in a nation-building process is likely
to be considerably lower than that of in-State Native Hawaiians.
One indicator of lower out-of-State Native Hawaiian voter turnout
is the relatively low number of out-of-State Native Hawaiians on the
Native Hawaiian Roll Commission's (NHRC's) Kanaiolowalu roll. Although
the precise number of out-of-State Native Hawaiians on the roll is not
public information, delegates were initially apportioned based on their
percentage participation in the roll. Seven of the 40 delegates were
apportioned to out-of-State Native Hawaiians, indicating that
approximately 17.5 percent of the persons on the roll are from out-of-
State, even though approximately half of all Native Hawaiians reside
out-of-State. Based on these figures, the Department projected a
significantly lower participation rate for out-of-State Native
Hawaiians, and adjusted its in-State
[[Page 71289]]
voter turnout figures upward by approximately 20-percent to reflect
anticipated participation by out-of-State Native Hawaiians. Since the
seven out-of-State delegates are equivalent to 21.2 percent of the 33
in-State delegates, the 20-percent adjustment factor is generally
consistent with available information about the likely rate of
engagement of the out-of-State Native Hawaiian population (33 times 120
percent equals approximately 40 delegates total).
Some data would point to a lower adjustment factor and some would
point to a higher factor. For example, in 1996 when the Hawaiian
Sovereignty Elections Council (HSEC) conducted its ``Native Hawaiian
Vote'' election, which asked Native Hawaiians whether they wished to
elect delegates to propose a Native Hawaiian government, only 3.2
percent of the more than 30,000 returned ballots came from out of
State. The Department did not use this low percentage, however, as it
appears to be attributable, at least in part, to the fact that the
HSEC's list of potential voters contained relatively few Native
Hawaiians living outside Hawaii. See Hawaiian Sovereignty Elections
Council, Final Report 28 (Dec. 1996).
Census data is another source of information about the potential
participation in, or affiliation with, the Native Hawaiian community is
the distribution of speakers of the Hawaiian language. Census data from
2009 to 2013 indicate that about 29 percent of U.S. residents who speak
the Hawaiian language (7,595 out of 26,205) resided out-of-State.
Although use of native language indicates strong ties to the community,
the Department gave the language data less weight than information on
actual participation in voting or other political or nation-building
processes, because official efforts in Hawaii to suppress the Hawaiian
language in the early twentieth century artificially alters the
significance of this distribution.
In sum, the Department concludes that 20 percent is a reasonable
adjustment factor given the limits of available data and the
uncertainties with respect to participation of the out-of-State
population. Applying that 20-percent adjustment factor for out-of-State
voters to the in-State turnout estimate (52,300 to 81,913) results in a
total range (in-State plus out-of-State) from about 62,760 to about
98,296. This range is an estimate, based on one specific methodology.
This range--like the ranges produced by many other methodologies,
employing a broad set of data--comports with the Department's
conclusion that it is reasonable to expect that a Native Hawaiian
ratification referendum would have a turnout somewhere in the range
between 60,000 and 100,000, although a figure outside that range is
possible.
A majority vote is necessary to support a governing document. With
voter turnout of 60,000, a majority would require over 30,000
affirmative votes; with a voter turnout of 100,000, a majority would
require over 50,000 affirmative votes. On this basis, the Department
determined that 30,000 affirmative votes (where they represent a
majority of those cast) is the rule's minimum threshold for potentially
showing broad-based community support, and 50,000 affirmative votes
(where they represent a majority of those cast) creates a presumption
of such support.
Finally, for the HHCA Native Hawaiians, each figure in the rule is
exactly 30-percent of the equivalent figure for Native Hawaiians. As
explained in detail below, the Department's best estimate is that adult
HHCA Native Hawaiians comprise approximately 30 percent of adult Native
Hawaiians. This estimate is based not on DHHL records, but on the
Department's best estimate of the respective populations of the two
groups.
The derivation of this 30-percent figure requires some background.
Justice Breyer's concurring opinion in Rice v. Cayetano, 528 U.S. 495,
526 (2000), cited the Native Hawaiian Data Book, which indicated 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 rule's definition of an HHCA Native Hawaiian. See Native
Hawaiian Data Book (2015), 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 Native Hawaiians with at least 50 percent
Native Hawaiian ancestry constituted about 20.0 percent of Native
Hawaiians born between 1980 and 1984, about 29.5 percent of Native
Hawaiians born between 1965 and 1979, about 42.4 percent of Native
Hawaiians born between 1950 and 1964, and about 56.7-percent of Native
Hawaiians 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 group born between 1965 and 1979. Therefore, the current population
of HHCA Native Hawaiian voters is estimated to be about 30 percent as
large as the current population of Native Hawaiian voters.
The conclusion that the median voter in an election held in 2016
(and for the next several years) is likely to fall into the 1965-to-
1979 group is bolstered by data from the Hawaiian Sovereignty Elections
Council's 1996 ``Native Hawaiian Vote.'' In that election, the median
voters were in their low- to mid-40s, roughly the equivalent of a voter
today who was born in 1971 or 1972. See Hawaiian Sovereignty Elections
Council, Final Report 28 (Dec. 1996).
Although the data from DHHL records are of limited relevance here,
the rule's 9,000- and 15,000-affirmative-vote thresholds appear to be
in harmony with key DHHL data. According to the 2014 DHHL Annual Report
there were 9,838 leases of Hawaiian home lands as of June 30, 2014, of
which 8,329 were residential (the remaining leases were for either
agricultural or pastoral land). Therefore, it is reasonable to assume
there are at least 8,329 families living in homestead communities
throughout Hawaii, in addition to the nearly 28,000 individual
applicants awaiting a homestead lease award. And a significant number
of HHCA Native Hawaiians likely are neither living in homestead
communities nor awaiting a homestead lease award. The DHHL data
therefore are consistent with the Department's conclusion that it is
reasonable to expect that a ratification referendum would have a
turnout of HHCA Native Hawaiians somewhere in the range between 18,000
and 30,000, although a figure outside that range is possible. And to
win a majority vote in that range would require over 9,000 (for a
turnout of 18,000) to over 15,000 (for a turnout of 30,000) affirmative
votes from HHCA Native Hawaiians. On this basis, the Department
determined that 9,000 affirmative votes from HHCA Native Hawaiians
(where they represent a majority of those cast) is the rule's minimum
threshold for potentially showing broad-based community support and
15,000 affirmative votes from HHCA Native Hawaiians (where they
represent a majority of those cast) creates a presumption of such
support.
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 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
[[Page 71290]]
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 accord 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, 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 concerns that a subsequent amendment to a governing 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 rule therefore provides only minimal guidance about what
the governing document must say with regard to membership criteria.
HHCA Native Hawaiians must be included, non-Natives must be excluded,
and membership must be voluntary and relinquishable. But the community
itself would otherwise be free to decide its membership criteria.
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. The Native Hawaiian community will
decide what form of government to adopt, and may provide for political
subdivisions if it so chooses. Such political subdivisions could be
defined by island, by geographic districts, by historic circumstances,
or otherwise in a fair and reasonable manner. Allowing for political
subdivisions is consistent with principles of self-determination
applicable to Native groups, and provides some flexibility should
Native Hawaiians wish to provide for subdivisions with whatever degree
of autonomy the community determines is appropriate, although only a
single formal government-to-government relationship with the United
States would be established.
The Formal Government-to-Government Relationship. Statutes such as
the National Historic Preservation Act of 1966, the Native American
Graves Protection and Repatriation Act, and the HHLRA established
specific processes for interaction between the Native Hawaiian
community and the U.S. government. The rule provides a process and
criteria for reestablishing a ``formal government-to-government
relationship,'' which would, among other benefits, enable the Native
Hawaiian community to work directly with the Federal Government to
implement additional appropriate Native Hawaiian programs. The rule
requires that the request to reestablish a formal government-to-
government relationship reflect the will of the Native Hawaiian people
through broad-based community support.
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
from the authorized officer of the governing body 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.
Because Congress has already acknowledged or recognized the Native
Hawaiian community, the Secretary's determination in this part is
limited to the process for reestablishing a formal government-to-
government relationship with the Native Hawaiian Governing Entity.
Additional processes are not required.
Other Provisions. The rule also contains provisions governing
technical assistance, clarifying the implementation of the formal
government-to-government relationship, and addressing related issues.
The rule explains that the formal government-to-government relationship
with the Native Hawaiian Governing Entity would have virtually the same
legal basis and structure as the formal government-to-government
relationship between the United States and 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 federally-
recognized tribes in the continental United States are subject and
would remain ineligible for Federal Indian programs, services, and
benefits provided to Indian tribes in the continental United States and
their members (including funding from the Bureau of Indian Affairs and
the Indian Health Service) unless Congress expressly declared
otherwise.
The rule also clarifies that neither this rulemaking nor granting a
request submitted under the 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 does not affect the title, jurisdiction, or status of
Federal lands and property in Hawaii. This provision does not affect
lands owned by the State or provisions of state law. Cf. Haw. Rev.
Stat. 6K-9 (2016) (``[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.''). Section 50.44 also explains 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 if
the Secretary determines to grant the request to reestablish a formal
government-to-government relationship, the Department will publish
notice in the Federal Register and the determination will be effective
30 days after publication, at which time the formal government-to-
government relationship will be reestablished. Individuals' eligibility
for any program, service, or
[[Page 71291]]
benefit under any Federal law that was in effect before the final
rule's effective date would be unaffected. Likewise, the rule does not
affect Native Hawaiian rights, protections, privileges, immunities, and
benefits under Article XII of the Constitution of the State of Hawaii.
This rule would not alter the sovereign immunity of the United States
or the sovereign immunity of the State of Hawaii.
(A) How the Rule Works
If a reorganized Native Hawaiian government decides to seek a
formal government-to-government relationship with the United States, it
must submit a written request to the Secretary, as provided in Sec.
50.20. The request must include a written narrative with supporting
documentation thoroughly addressing the elements set forth in Sec.
50.10. If the Secretary determines that the request appears to contain
these elements and is consistent with the affirmative-vote requirements
set out in Sec. 50.16(g)-(h), the Secretary will publish notice of
receipt of the request in the Federal Register and post the request to
the Department's Web site. The public will have the opportunity to
comment on the request and submit evidence on whether the request meets
the criteria described in Sec. 50.16, and the requester may respond to
those comments or evidence. The Secretary will review the request to
determine whether it meets the criteria described in Sec. 50.16 and is
consistent with this part, along with any public comments and evidence
and the requester's responses to those comments and evidence, to make a
decision granting or denying the request. If the request is granted,
the Secretary's decision will take effect 30 days after publication of
a notice in the Federal Register and the requester will be identified
as the Native Hawaiian Governing Entity (or the official name stated in
that entity's governing document), 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.
(B) Major Changes
After the Department reviewed and considered public comments, it
made several key clarifications and changes in this final rule
(indicated below in italics). The final rule:
Includes the Native Hawaiian community's ability to more
effectively exercise its inherent sovereignty and self-determination as
an additional purpose of the rule (Sec. 50.1(a));
Adds definitions of ``sponsor,'' ``State,'' and ``sworn
statement'' (Sec. 50.4);
Eliminates the U.S. citizenship requirement (Sec. Sec.
50.4; 50.12);
Provides that the Native Hawaiian community itself must
prepare a list of eligible voters to ratify its governing document and
clarifies that reliance on existing rolls prepared by others is
optional (Sec. 50.12(a));
Clarifies means for individuals to demonstrate a right to
vote in the ratification referendum, e.g., individuals may use sworn
statements for self-certification or for sponsoring a close family
relative to demonstrate ``HHCA Native Hawaiian'' and ``Native
Hawaiian'' status for purposes of voting in the ratification referendum
(Sec. 50.12(b), (c));
Increases the comment period for the public to submit
comments and evidence on a request to reestablish a government-to-
government relationship to 60 days, provides the Department 20 days
after the close of that comment period to post comments/evidence to its
Web site (Sec. 50.30), and permits the requester 60 days to respond to
any such comments/evidence (Sec. 50.31);
Limits extensions of any deadline under Sec. Sec. 50.30
and 50.31 to a total of 90 days, provided that an extension request is
in writing and sets forth good cause (Sec. 50.32);
Clarifies that if the Secretary is unable to render a
decision on a request within 120 days following close of the comment
periods, the Secretary will provide notice to the requester, and
include an explanation of the need for more time and an estimate of
when a decision will be made (Sec. 50.40);
Delays the effective date of the Secretary's decision
until 30 days after publication in the Federal Register (Sec. 50.42);
and
Further clarifies that reestablishment of the formal
government-to-government relationship does not affect the title,
jurisdiction, or status of Federal lands and property in Hawaii (Sec.
50.44(f)).
(C) Key Issues
The Department reviewed comments on a wide range of issues, but
received significant comment on a narrow set of key issues. These
issues are more fully addressed in responses to comments in Section
(IV)(B) below, but are summarized here:
Land into trust. The Department's ability to take land
into trust for the Native Hawaiian Governing Entity is constrained by
Federal law. The Indian Reorganization Act does not apply to Hawaii and
therefore does not authorize the Department to take land into trust for
the Native Hawaiian Governing Entity. And no other current Federal law
authorizes such action. See Section (IV)(B).
Indian Gaming Regulatory Act. The Native Hawaiian
Governing Entity may not conduct gaming activities under the Indian
Gaming Regulatory Act (IGRA). See Section (IV)(B).
Federally Recognized Indian Tribe List Act of 1994 (List
Act). The Native Hawaiian Governing Entity will not appear on the list
of federally-recognized Indian tribes required under the List Act. See
Section (IV)(C).
(D) Section-by-Section Analysis
This portion of the preamble previews the final rule and highlights
certain aspects of the rule that may benefit from additional
explanation.
Subpart A--General Provisions, Sections 50.1, 50.2, 50.3, and 50.4
These provisions establish the purpose of this rule and explain
that if a Native Hawaiian government requests a formal government-to-
government relationship with the United States, as described in Sec.
50.10, such a relationship will be reestablished only if the request is
granted as described in Sec. Sec. 50.40 to 50.43. The general
provisions also provide that the United States will reestablish a
formal government-to-government relationship with only a single Native
Hawaiian government.
These provisions also define key terms used throughout the rule.
Native Hawaiian community and Native Hawaiian are defined in terms that
encompass all the Native Hawaiians recognized by Congress, while HHCA
Native Hawaiian is limited to Native Hawaiians as defined in the HHCA.
The rule defines Federal Indian programs, services, and benefits
separately from Federal Native Hawaiian programs, services, and
benefits to parallel Congress's approach limiting eligibility for
specific programs, services, and benefits. Federal Indian programs,
services, and benefits include, but are not limited to, those provided
by the Bureau of Indian Affairs and the Indian Health Service, which do
not extend to Native Hawaiians.
Subpart B--Criteria for Reestablishing a Formal Government-to-
Government Relationship, Sections 50.10, 50.11, 50.12, 50.13, 50.14,
50.15, and 50.16
These provisions collectively explain what the Native Hawaiian
community must include in its request submitted under this part.
Section 50.10 sets out the elements of the request itself. Those
elements include specific written narratives for
[[Page 71292]]
four elements, a ratified governing document that meets the
requirements of Sec. 50.13, a resolution of the Native Hawaiian
governing body authorizing its officer to submit a request for a
government-to-government relationship, and the officer's certification
of that request. The narratives must describe: how the governing
document reflects the will of the Native Hawaiian community (Sec.
50.11); who could participate in ratifying the governing document, and
how the community distinguished HHCA Native Hawaiians from other Native
Hawaiians (Sec. 50.12); information about the ratification referendum
(Sec. 50.14); and information about the elections for government
offices (Sec. 50.15). The Department respects the Native Hawaiian
community's self-determination, particularly through drafting a
governing document. As a result, the rule's provisions relating to the
process of drafting the community's governing document provide only
minimum criteria that must be satisfied for the Secretary to
reestablish a formal government-to-government relationship with the
community. And, while the rule text refers to ``periodic elections for
government offices identified in the governing document,'' nothing in
the rule precludes the establishment of appointed positions as well.
Section 50.16 lists the eight criteria that the Secretary will consider
when determining whether to reestablish a formal government-to-
government relationship. The final rule makes clear that, in
determining whether the request meets the criteria described in Sec.
50.16, the Secretary may also consider whether the request is
consistent with this part. See Sec. Sec. 50.40, 50.41.
Subpart C--Process for Reestablishing a Formal Government-to-Government
Relationship
This subpart addresses the procedural aspects of the rule, from the
mechanics of submission to the notice-and-comment process. The final
two sections, Sec. Sec. 50.43 and 50.44, discuss the impact and
implementation of reestablishing a formal government-to-government
relationship.
The provisions of this rule are generally applicable only in
response to a specific request for the reestablishment of a formal
government-to-government relationship. Section 50.21 recognizes that
the Department is prepared to provide technical assistance if
requested. The rule does not, however, create an individual interest or
cause of action allowing a challenge to the Native Hawaiian community's
drafting, ratification, or implementation of a governing document,
separate and apart from any proceedings that would follow the
submission of a request under this part. By their terms, Sec. Sec.
50.43 and 50.44 only apply following reestablishment of a formal
government-to-government relationship and define the implementation of
that relationship.
(IV) Public Comments on the Proposed Rule and Responses to Comments
(A) Overview
The Department actively sought public input in two stages on the
rule's administrative procedure and criteria for reestablishing a
formal government-to-government relationship with the Native Hawaiian
community.
First, in June 2014, the Department published an ANPRM seeking
input from leaders and members of the Native Hawaiian community and
federally-recognized tribes in the continental United States. 79 FR
35296-303 (June 20, 2014). 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 extensive public comments on the ANPRM. 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.
Second, after careful review and analysis of the comments on the
ANPRM, in October 2015 the Department issued a Notice of Proposed
Rulemaking, Procedures for Reestablishing a Government-to-Government
Relationship with the Native Hawaiian Community, 80 FR 59113-132 (Oct.
1, 2015), setting forth an administrative procedure and criteria that
the Secretary would use if the Native Hawaiian community forms a
unified government that then seeks a formal government-to-government
relationship with the United States. The proposed rule did not provide
a process for reorganizing a Native Hawaiian government, agreeing with
many ANPRM commenters that 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 Federal Government. Over
the course of a 90-day comment period that ended on December 30,
2015,\5\ the Department again received extensive public comments,
including unique public submissions and duplicate mass mailings
covering a wide range of issues. The issues discussed in Section
(IV)(B) encompass the range of significant issues presented in the
comments on the proposed rule.
---------------------------------------------------------------------------
\5\ The comment period closed on Wednesday, December 30, 2015,
at 11:59 p.m. Eastern Time. The time zone of the submissions
deadline was not indicated in the Federal Register document (80 FR
59113, 59114), though it was indicated on www.regulations.gov.
Additionally, the deadline occurred during a busy holiday period.
The Department received 277 submissions within three business days
after the comment period closed, with many of those comments
arriving electronically to part50@doi.gov (an email address set up
specifically to receive comments during the comment period) in the
early-morning hours of December 31 (Eastern Time), when it was still
December 30 in Hawaii. The Department kept a running tally of all
comments submitted to part50@doi.gov after the deadline. As of
January 8, 2016, the Department received four more comments to
part50@doi.gov in addition to the 277. Given the Department's
interest in considering the full range of public comments, the
confusion caused by omitting time zone information in the Federal
Register, and the volume of comments received after the published
deadline, the Department determined to consider all public comments
received by January 8, 2016.
---------------------------------------------------------------------------
Comments came from Members of Congress, Hawaii State government
offices and legislators, academics, members of the public residing in
Hawaii and in the continental United States, as well as individuals
residing internationally. Specifically, many Native Hawaiian Civic
Clubs and Native Hawaiian community, legal, cultural, and business
organizations, as well as
[[Page 71293]]
the National Congress of American Indians, submitted comments.
Numerous commenters expressed support for the Department's proposal
without suggesting any changes and requested that the Department
proceed to implement the rule as quickly as possible. Commenters who
expressed general support frequently stated that the rule would provide
a foundation for achieving parity in Federal policy related to
indigenous communities in the United States. These commenters
recognized and anticipated that there would be benefits to the Native
Hawaiian Governing Entity from working directly with the Federal
Government to implement existing Federal programs, and listed several
other perceived benefits of a government-to-government relationship,
including the Native Hawaiian Governing Entity's ability to (in no
particular order): (1) Acquire land and create affordable housing
solutions for its members; (2) enable more direct and effective
management of assets and resources by Native Hawaiians in accordance
with customary and traditional practices; (3) facilitate negotiations
regarding the return of land and other assets to the Native Hawaiian
people; (4) formalize management agreements with Federal, State, and
local governments that enhance the ability of Native Hawaiians to
contribute their knowledge and expertise to care for the environment
and natural resources; (5) improve Native Hawaiians' ability to
strengthen and perpetuate their indigenous culture and languages; (6)
access certain veterans' benefits and health services for Native
Hawaiian veterans; (7) compete for certain government contracts on a
government-wide basis; and (8) more effectively coordinate health
services with other human services to improve the overall health and
wellness of the Native Hawaiian people. Other supporters noted that a
government-to-government relationship could help preserve existing
Native Hawaiian Federal benefits, such as culture-based charter and
language-immersion schools, scholarships, and training programs, as
well as economic, housing, and health services.
Many commenters, however, expressed opposition to the rule,
advocating that the Department abandon its efforts entirely. Most of
these opponents argued that the United States lacks jurisdiction to
promulgate a rule, is illegally occupying the Hawaiian Islands, and
violated and continues to violate international law respecting what the
commenters argued is Native Hawaiians' right to self-determination
under international law. Others objected to any Federal process that
pertains to Native Hawaiian self-determination, stating that the rule
would violate the U.S. Constitution as impermissibly race-based.
All public comments received on the ANPRM and the NPRM, along with
supporting documents, are available in a combined docket at https://www.regulations.gov/#!docketDetail;D= DOI-2015-0005.
(B) Responses to Significant Public Comments on the Proposed Rule
The Department decided to proceed to the final-rule stage. As
described in Section (III)(B) of this preamble, the Department made
specific changes in response to public comments, including
clarifications to address specific concerns. The Department appreciates
the time commenters took to provide helpful information and valuable
suggestions. Responses to significant comments relating to specific
issues as well as comments relating to particular sections of the
proposed rule follow below.
(1) Issue-Specific Response to Comment
(a) Authority
Issue: Several commenters called into question the Department's
authority to promulgate this rule and Congress's plenary authority over
Native Hawaiians. The Department made no changes to the proposed rule
in response to these comments.
(1) Comment: Several commenters questioned the Department's
authority to reestablish a formal government-to-government relationship
with the Native Hawaiian community, pointing out that former U.S.
Senator Daniel Akaka introduced several bills that would have expressly
established a government-to-government relationship between the Native
Hawaiian community and the United States, but none of those bills
became law. Several commenters also questioned Congress's plenary
authority over Native Hawaiians.
Response: The authority to issue this rule is vested in the
Secretary by 25 U.S.C. 2, 9, 479a, 479a-1; 43 U.S.C. 1457; Act of
January 23, 2004, sec. 148, 118 Stat. 445; 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). The Federal
Government has authority to enter into a government-to-government
relationship with the Native Hawaiian community. 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
indigenous peoples and the Federal Government, relationships that date
to the earliest period of our Nation's history. When enacting Native
Hawaiian statutes, Congress has expressly stated in accompanying
legislative findings that it was exercising its plenary power under the
Constitution 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.'' Native Hawaiian Health Care Act, 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 Native Hawaiian Education Act, 20 U.S.C.
7512(12)(B), (D) (extending services to Native Hawaiians ``because of
their unique status as the indigenous people of a once sovereign
nation'' and explaining that ``the political status of Native Hawaiians
is comparable to that of American Indians and Alaska Natives''). Over
many decades, Congress enacted more than 150 statutes recognizing and
implementing a special political and trust relationship with the Native
Hawaiian community. These Congressional actions establish that the
community is federally ``acknowledged'' or ``recognized'' by Congress.
Thus, the Native Hawaiian community has a special political and trust
relationship with the United States. This final rule addresses the
further and distinct issue of recognizing a government of the Native
Hawaiian community for purposes of entering into a formal government-
to-government relationship. The statutes cited above, in combination
with the Department's existing authorities related to Indian affairs,
establish the Department's authority to promulgate the final rule to
confirm that the reorganized Native Hawaiian government, through which
the Native Hawaiian community can conduct formal government-to-
government relations with the United States, is authorized to represent
the community. The Department accordingly concludes, based on these
Congressional enactments and on its analysis of the record and of
applicable law, that the Secretary may reinstate a formal government-
to-government relationship
[[Page 71294]]
with a Native Hawaiian government in accordance with this rule.
(2) Comment: Some commenters claimed that Congress lacks plenary
authority over Native Hawaiians or any Native Hawaiian governing
entity, and objected to the provision of the proposed rule that
indicated Congress would have such authority.
Response: The United States strongly supports principles of self-
determination and self-governance of indigenous peoples; nevertheless,
if a Native Hawaiian Governing Entity is formed, that entity would
exercise its retained inherent sovereign authority subject to the
plenary authority of Congress. See Section (III) (Authority), supra.
Additionally, to the extent these comments assert that Hawaii is not
part of the United States, that assertion is incorrect. As discussed in
the next response to comment, the Department is bound by Congressional
enactments concerning the status of Hawaii.
(3) Comment: Many commenters objected to any rulemaking by the
Department, indicating their belief that Hawaii was illegally annexed
by the United States, that Hawaii is currently being ``occupied'' by
the United States, and that the Kingdom of Hawaii continues to exist as
a sovereign nation-state independent of the United States. Some
commenters questioned whether Hawaii is properly considered to be part
of the United States, suggesting the Department lacks jurisdiction to
promulgate a rule.
Response: The Department made no changes to the rule in response to
these comments, which address the validity of the relationship between
the United States and the State of Hawaii. To the extent commenters
claim that Hawaii is not a State within United States, the Department
rejects that claim. Congress admitted Hawaii to the Union as the 50th
State. The Admission Act, which was consented to by the State of Hawaii
and its citizens through an election held on June 27, 1959, 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 18, 1959, sec. 1, 73 Stat. 4. This express determination by
Congress is binding on the Department as an agency of the United States
Government that 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.
Agents of the United States were involved in the overthrow of the
Kingdom of Hawaii in 1893; and Congress, through a joint resolution,
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. Apology
Resolution at 1513. This 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
establishing the current status of the State of Hawaii remains the
controlling law.
(4) Comment: One commenter was critical of the Department's
citation to Federal laws relating to, for example, Hawaiian language,
burials, and cultural activities, and appropriations as evidence of
Congress's recognition of a special political and trust relationship
with the Native Hawaiian community. The commenter argued that these
Federal laws do not ``rise to the level of an exercise of plenary power
sufficiently analogous to those addressed in the Commerce Clause of the
[U.S.] Constitution in dealing with Indian Affairs.'' Other commenters
echoed this concern.
Response: The Department interprets Congress's course of dealings
treating Native Hawaiians as a distinctly native community of
indigenous people as analogous to its treatment of tribes in the
continental United States and within the scope of Congress's power to
legislate with respect to ``Indian tribes'' under the U.S.
Constitution. U.S. Const. art. I, sec. 8, cl. 3. In the Apology
Resolution, Congress acknowledged that the illegal overthrow of the
Kingdom of Hawaii ``resulted in the suppression of the inherent
sovereignty of the Native Hawaiian people'' and apologized for the role
its agents and citizens played to ``depriv[e]'' Native Hawaiians of
their ``rights of self-determination''. Apology Resolution, Section
1(1); (2). And by expressing its commitment to a process of
reconciliation with the Native Hawaiian people, the United States
acknowledged the ramifications the Kingdom's overthrow had on Native
Hawaiians, including ``long-range economic and social changes'' that
devastated the indigenous population and contributed to its decline in
health and well-being. Id., Section 1(4). The socioeconomic effects of
the overthrow spanned generations and disparities continue today. But
lack of a formal, organized government after the overthrow did not
extinguish Native Hawaiians' ability to exercise self-determination. As
discussed in Section (II), various Native Hawaiian political,
community, and social organizations connected to the Kingdom continued
to meet and exercise forms of self-governance outside the scope of the
State and local governments. The Native Hawaiian community's
continuation of internal self-governance post-annexation to the current
day demonstrates its resilience and cohesion as a political community.
Indeed, Congress specifically recognized Native Hawaiians' unique needs
as a distinct indigenous community by enacting legislation creating
programs for their exclusive benefit, e.g., the Native Hawaiian
Education Act, 20 U.S.C. 7511 et seq.; the Native Hawaiian Health Care
Act, 42 U.S.C. 11701 et seq.; the Native American Housing Assistance
and Self-Determination Act (NAHASDA), 42 U.S.C. 4221 et seq., and by
specifically including them in other legislation pertaining to Indian
tribes, e.g., American Indian Religious Freedom Act, 42 U.S.C. 1996;
Native American Graves Protection and Repatriation Act, 25 U.S.C. 3001-
3013; Native American Programs Act of 1974, 42 U.S.C. 2991-2992d. These
and other Federal acts contribute to the process of rehabilitating the
Native Hawaiian community in the areas of health care, education,
housing, religious freedom, social welfare, and cultural preservation,
a process that lays the groundwork for the Native Hawaiian community to
formally reorganize its government and exercise self-determination and
self-governance.
Appropriations to fund the programs created by these and other
Federal acts are an essential part of Congress's exercise of its
plenary authority over indigenous peoples. Accordingly, the Department
treats Congressional appropriations laws similar to legislation
respecting programs for the Native Hawaiian community.
(b) Constitutionality
Issue: Commenters opposed to the proposed rule alleged that it
would violate the U.S. Constitution.
Comment: Commenters expressed concern that any government-to-
government relationship is inherently race-based and violates both the
Fourteenth Amendment's Equal Protection Clause and the Fifteenth
Amendment's guarantee of the right to vote regardless of race. Some
commenters expressed the view that it is not appropriate for indigenous
groups to have separate governments that are recognized by the United
States, or that Native Hawaiians are not appropriately accorded that
status.
Response: The U.S. Constitution provides the Federal Government
with authority to recognize and enter into
[[Page 71295]]
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 (Treaty Clause); see also Morton v. Mancari, 417 U.S. 535,
551-52 (1974) (``The plenary power of Congress to deal with the special
problems of Indians is drawn both explicitly and implicitly from the
Constitution itself.''). These constitutional provisions recognize and
provide the foundation for longstanding special relationships between
Native peoples and the Federal Government, relationships that date to
the early days of our Nation's history. Consistent with the Supreme
Court's holding in Morton v. Mancari, and other cases, the United
States' government-to-government relationships with Native peoples do
not constitute ``race-based'' discrimination but rather are political
classifications.
Moreover, this final rule only creates a pathway through which a
formal government-to-government relationship can be reestablished; it
does not by itself establish such a relationship. It is clear that
Congress recognized the Native Hawaiian community as an indigenous
community within the scope of Congress's Indian affairs power under the
Constitution, as well as the community's inherent sovereignty and the
United States' role in suppressing what the Apology Resolution
described as the community's ``rights to self-determination'' through
the overthrow of the Kingdom. It accordingly has provided that
community with certain programs and benefits. See Board of County
Comm'rs v. Seber, 318 U.S. 705, 715 (1943) (once the United States
``overcame the Indians and took possession of their lands, sometimes by
force, leaving them . . . needing protection . . . [it] assumed the
duty of furnishing . . . protection and with it the authority to do all
that was required to perform that obligation''). As Congress 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.'' Native Hawaiian Homelands Homeownership Act of
2000, 114 Stat. 2968. Thus, ``the political status of Native Hawaiians
is comparable to that of American Indians and Alaska Natives.'' Native
Hawaiian Education Act, 20 U.S.C. 7512(12)(B), (D); see Rice, 528 U.S.
at 518-19. Therefore, reestablishing a government-to-government
relationship here gives further expression to the special political and
trust relationship Congress already established with the Native
Hawaiian community, in a manner similar to the United States'
relationship with Indian tribes in the continental United States. Such
a relationship is constitutional. Congress and the Department both
encourage self-government by tribes, and have done so for decades. This
policy is beneficial not only to indigenous communities but also to the
United States as a whole.
(c) Voter Eligibility
Issue: The Department received numerous comments on the provisions
in the proposed rule concerning the Native Hawaiian community's ability
to determine and verify voter eligibility based on Native Hawaiian
ancestry. The Department made key changes to Sec. 50.12 in response to
these comments.
(1) Comment: In the preamble to the proposed rule, 80 FR 59124, the
Department asked for comment on whether there are circumstances in
which the rule should rely on sworn statements punishable under state
law to document ``HHCA Native Hawaiian'' status under Sec. 50.4 and
corresponding sections of the proposed rule. Citing the lack of
official databases that distinguish between ``HHCA Native Hawaiians''
and other ``Native Hawaiians,'' one commenter suggested that sworn
statements punishable under state law should be accepted as sufficient
evidence of ``HHCA Native Hawaiian'' status for voting purposes only.
Other commenters supported the use of sworn statements for ``Native
Hawaiians'' as well.
Response: The Department concludes that sworn statements may be
used to demonstrate ``HHCA Native Hawaiian'' or ``Native Hawaiian''
status for purposes of voting in the ratification referendum. New
language was added to the final rule indicating that reliable self-
certifying sworn statements are sufficient for purposes of
participation in the ratification referendum.
In light of this change, the Department added a definition of
``sworn statement'' and introductory language in Sec. 50.12 requiring
the Native Hawaiian community to explain the procedures it used for
verifying the self-certifying ``Native Hawaiians'' and ``HHCA Native
Hawaiians.'' Section 50.12(b) sets out five ways in which a potential
voter could, through a sworn statement, affirm his or her Native
Hawaiian status. See Sec. 50.12(b)(i)-(v). For example, the sworn
statement could affirm that the potential voter:
Is enumerated on a roll or list prepared by the State of
Hawaii under State law (where enumeration is based on documentation
that verifies Native Hawaiian descent);
is currently or previously enrolled as a Native Hawaiian
in a Kamehameha Schools program;
is identified as ``Native Hawaiian'' (or some equivalent
term) on a birth certificate; or
is identified as ``Native Hawaiian'' (or some equivalent
term) in a Federal, state, or territorial court order determining
ancestry.
A sworn statement is sufficient evidence of HHCA Native Hawaiian
status as long as that statement affirms that there are specific means
to establish the potential voter's eligibility as Native Hawaiian under
HHCA sec. 201(a)(7), or if the statement affirms that a court order
does so. See Sec. 50.12(c). Acceptable documentation to support the
sworn statements could include, but is not limited to, a Hawaiian home-
lands lease as Native Hawaiian under HHCA sec. 201(a)(7) or
correspondence from DHHL indicating such Native Hawaiian beneficiary
status. Notably, documentation of either status need not actually
accompany a sworn statement, unless the community requires it. If the
Native Hawaiian community chooses, it may identify HHCA Native
Hawaiians on its voter list of Native Hawaiians at the time the votes
are cast. Regardless of when the community identifies its HHCA Native
Hawaiian voters, however, the community must account for both HHCA
Native Hawaiians and Native Hawaiians vote tallies.
The rule provides safeguards against potential voter fraud by
requiring specific support for the potential voter's status, Sec.
50.12(b), (c), as well as requiring separate vote tallies for Native
Hawaiians and HHCA Native Hawaiians, Sec. 50.14(b)(5)(v). In addition
to these foundational provisions, the rule provides the public with an
opportunity to present evidence on whether the community's request
meets the standards set out in Sec. 50.16 (Sec. 50.30(a)(2)(iv)),
which could include evidence that, for example, the Native Hawaiian
community did not meet the requirements of Sec. 50.12 or Sec. 50.14.
Finally, the Secretary may request additional documentation and
explanation with respect to the request submitted under this part
(Sec. 50.40).
The comments make clear that there is no comprehensive listing of
``Native Hawaiians'' and ``HHCA Native Hawaiians.'' Therefore, it is
likely that many may not be enumerated in any roll maintained by the
State or other entity. The comments also make clear that many ``Native
Hawaiians'' and ``HHCA Native Hawaiians'' objected to being enumerated
on any roll, State sponsored
[[Page 71296]]
or otherwise, without their consent (even if there is an established
process to have their names removed), and that some may not have any
ancestral documentation. Accordingly, in addition to sworn statements
described above, the Department amended the proposed rule to permit an
eligible voter to sponsor a closely related blood relative (mother,
father, child, brother, sister, grandparent, aunt, uncle, grandchild,
niece, nephew, or first cousin) as qualified for participation in a
ratification referendum through a sworn statement based on the voter's
personal knowledge that the blood relative meets the definition of
Native Hawaiian or HHCA Native Hawaiian, with the consent of that
relative. The sponsor would not be required to document the blood
relative's ancestry because the sponsor's eligibility would already
have been addressed.
To be clear, sworn statements to verify a potential voter's own
ancestry must reliably establish some degree of Native Hawaiian
ancestry. Native Hawaiian ancestry is absolutely required for all
Native Hawaiians seeking to participate in the ratification referendum.
Accordingly, the sworn statement should describe the evidence relied on
to establish eligibility to vote in the ratification referendum. The
Native Hawaiian community could do so by requiring the potential voter
to affirm that he or she is able to establish his or her Native
Hawaiian or HHCA Native Hawaiian status through one of the methods
listed in Sec. 50.12(b)(3)(i)-(v) or (c)(2)(i)-(iv), respectively. The
methods in Sec. 50.12(b) and (c) are optional.
At the end of the sworn statement, the Native Hawaiian community
could require language such as:
``I swear/affirm that the information I have provided is true to
the best of my knowledge and understand that a false statement is
punishable under state law. If I have provided false information, I may
be fined, imprisoned, or both.''
The Native Hawaiian community may verify sworn statements by an
appropriate method, such as through review of such documentation where
it is readily available, or through maintaining a voter registration
list that it makes public to allow for objections, and providing a
mechanism to resolve any challenges by registered voters. Such a list
must be maintained for a reasonable period after the Secretary has made
a determination to accept or reject a request for a government-to-
government relationship based on that ratification vote.
(2) Comment: One commenter suggested that the final rule should
include alternative methods to demonstrate Native Hawaiian ancestry, to
accommodate individuals who do not have written documentation.
Response: For purposes of the ratification vote, the proposed rule
provided for documentation of ancestry using ``other means to document
generation-by-generation descent from a Native Hawaiian,'' and ``other
records or documentation demonstrating eligibility under the HHCA'' in
Sec. 50.12. But to address more specifically those without any written
ancestry documentation, the Department includes new language in the
final rule. The rule accordingly permits an eligible voter to sponsor a
closely related blood relative, i.e., mother, father, child, brother,
sister, grandparent, aunt, uncle, grandchild, niece, nephew, or first
cousin, for participation in a ratification referendum as a Native
Hawaiian or an HHCA Native Hawaiian. Such sponsorship must be made by
sworn statement based on personal knowledge that the relative meets the
definition of Native Hawaiian or HHCA Native Hawaiian. See Sec.
50.12(b), (c); response to comment (c)(1). For the sponsorship to be
valid, the sponsor must be enumerated on a roll certified by the State
of Hawaii under State law, be enumerated in official DHHL records
demonstrating eligibility under the HHCA, provide proof of current or
prior enrollment in Kamehameha Schools as a Native Hawaiian, or provide
a birth certificate or court order listing Hawaiian or Native Hawaiian
ancestry. See Sec. 50.12(a). The rule also permits ``other similarly
reliable means of establishing generation-by-generation descent from a
Native Hawaiian ancestor'' and ``other similarly reliable means of
establishing eligibility under HHCA sec. 201(a)(7)'' in Sec. 50.12.
(3) Comment: On 80 FR 59124, the Department asked for 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.
Response: Commenters who responded to this question supported
``requiring processes and standards of documentation that are
consistent with the processes used by the State of Hawaii Department of
Hawaiian Home Lands (DHHL), the Kamehameha Schools, and other existing
public and private trusts currently providing services to and verifying
the status of individual Native Hawaiians because of their status as
members of Hawaii's only indigenous people, the Hawaiian people.'' They
specifically did not support documenting descent using the 1890, 1900,
or 1910 censuses because DHHL, Kamehameha Schools, and other entities
``have well-established processes that the Native Hawaiian community is
most familiar with, and account for any historical events that present
challenges for Native Hawaiians seeking to establish a generation-by-
generation connection to a census roll that is more than 100 years
old.'' The Department determined that there is a lack of support for
specifically naming the censuses in a final rule for purposes of
documenting generation-by-generation descent and therefore did not
include such references. The rule does not prevent the Native Hawaiian
community from relying on those censuses if it determines that they are
reliable evidence of lineal descent from the native peoples who
occupied and exercised sovereignty over the territory that became the
State of Hawaii.
In further response, the Department determined that current or
prior enrollment as a Native Hawaiian in a Kamehameha Schools program
is acceptable verification of ancestry based on the Department's own
research and commenters' confidence in that process as legitimate and
well-established within the Native Hawaiian community for purposes of
documenting Native Hawaiian descent. This change further necessitated a
change to the introductory provisions of Sec. 50.12 to require that
the Native Hawaiian community explain its requirements for use of any
sworn statements and the procedures it used for verifying the self-
certifying ``Native Hawaiians'' and ``HHCA Native Hawaiians.'' See
response to comment (1)(c)(1).
(4) Comment: One commenter offered that any deliberations about
what constitutes ``sufficient'' proof of descent ``must incorporate
Hawaiian language records,'' arguing that ``a broader literature for
verification needs to be engaged including name chants, birth chants,
and various genres of grief chants which are filled with genealogical
and land information.'' Another commenter suggested that, in the
absence of birth certificates, other documents to verify descent should
be added, such as ``church documents, marriage and death certificates,
land ownership, employment records, etc.''
Response: Although some of the enumerated items may provide
acceptable genealogical evidence,
[[Page 71297]]
particularly in combination with other sources, these items were not
expressly added to the final rule because Sec. 50.12 already provides
for documentation of ancestry using ``other similarly reliable means of
establishing generation-by-generation descent from a Native Hawaiian
ancestor'' and ``other similarly reliable means of establishing
eligibility under HHCA sec. 201(a)(7)'' in Sec. 50.12. These ``other
similarly reliable means'' could include the commenters' proposed
alternative sources as long as the Native Hawaiian community explains
in its written narrative how and when those sources were acceptable as
``reasonable and reliable'' documentation of descent under Sec. 50.12.
In response to these comments, the Department included birth
certificates indicating ``Native Hawaiian'' (or an equivalent term) and
court orders determining such ancestry as acceptable for establishing
Native Hawaiian ancestry.
(d) Membership
(1) Comment: One commenter noted that the proposed rule prevents
the Native Hawaiian community from excluding ``HHCA Native Hawaiians''
from its membership in Sec. 50.13, which ``cuts against'' Santa Clara
Pueblo v. Martinez, 436 U.S. 49 (1978), and could be ``read to prohibit
the Native Hawaiian government from revoking membership, another
practice of tribal sovereignty upheld by the [U.S.] Supreme Court.''
Response: While it is true that Sec. 50.13(f)(1) requires that
``HHCA Native Hawaiians'' be permitted to enroll, nothing in Sec.
50.13 addresses whether and on what basis the Native Hawaiian community
may disenroll individual members. Membership in a political community
is voluntary and not compulsory. Importantly, in the HHCA, Congress
recognized ``HHCA Native Hawaiians'' as a vital part of the Native
Hawaiian community, so any Native Hawaiian government that seeks to
reestablish a formal government-to-government relationship under this
rule must permit them to enroll and guarantee their civil rights.
Section 50.13, however, does not address disenrollment, but any such
action must be done in compliance with due-process principles. See
response to comment (1)(m)(10). Any existing benefits under Federal law
that a member has would be unaffected by the community action. See
response to comment (1)(f).
(2) Comment: One commenter noted that while a Native Hawaiian
ancestral connection is a requirement for membership under the proposed
rule, ``there is no test specified in the rule that must be used,'' and
that ``anyone'' (non-Hawaiians) could be a member if such a test is not
adopted. Another commenter suggested that genealogical DNA testing
should be listed as a method to determine ancestry.
Response: Neither the proposed nor final rules specify what
``tests'' the Native Hawaiian community must use in order to verify
that the individuals who apply for membership meet the community's
membership requirements. Such ``tests'' are for the Native Hawaiian
community to decide in accord with Santa Clara Pueblo. Although the
rule specifies criteria for participation in the ratification process,
that is a distinct question from the issue of membership in the
community's governing entity, which will be determined by the community
itself.
(3) Comment: Some commenters expressed the view that decisions as
to the membership and scope of the community should be left for the
community itself to decide. One commenter recommended deleting Sec.
50.13(f), which requires the Native Hawaiian community's governing
document to describe its criteria for membership subject to certain
conditions.
Response: The Department agrees that the Native Hawaiian community
should define its own membership as an exercise of self-determination,
but rejects the commenter's suggestion to eliminate Sec. 50.13(f).
Section 50.13(f) provides certain minimum criteria that must be met by
any governing document, including, among other provisions, safeguards
for HHCA Native Hawaiians to ensure that the governing document fairly
reflects the composition of the Native Hawaiian community that Congress
recognized and to which Congress provided special programs and
services. 80 FR at 59125-26. These criteria provide the Native Hawaiian
community with firmly established standards consistent with
Congressional intent and provide the Department clear criteria to apply
when considering a request to reestablish a formal government-to-
government relationship. Section 50.13(f) seeks to ensure that the
community represented by the Native Hawaiian Governing Entity is the
community recognized by Congress, and is a reasonable exercise of
Department's authority in determining the community it is responsible
to serve.
(e) Terminology
Issue: The Department received extensive comments on the effect and
impact of the proposed rule's use and distinction between the terms
``Native Hawaiian'' and ``HHCA Native Hawaiian.'' The Department made
no changes to the proposed rule in response to these comments.
(1) Comment: Multiple commenters objected to the proposed rule's
distinction between ``Native Hawaiians'' and ``HHCA-eligible Native
Hawaiians,'' arguing that such a distinction based on blood quantum is
a ``foreign concept'' within their community. Others similarly objected
to the proposed rule's criteria for membership that excludes non-
Hawaiians.
Response: Congress recognizes both HHCA Native Hawaiians and Native
Hawaiians as one people, but through statutory definition establishes
that the HHCA Native Hawaiians are a subset of the other. Consistent
with Congressional policy, the Department accounted for both statutory
definitions in the process for reestablishing a formal government-to-
government relationship with the recognized Native Hawaiian community .
. . The rule uses these Congressional definitions to ensure that the
will of the recognized community as a whole is reflected in the
ratification process.
The Department is aware of community concerns with respect to
distinguishing between Native Hawaiians and HHCA Native Hawaiians. The
rule includes relatively few conditions on the Native Hawaiian
community's exercise of its inherent sovereignty to determine its own
membership in any governing document. It is important to note that the
rule sets forth a process to facilitate reestablishing a formal
government-to-government relationship between the Native Hawaiian
community and the United States, and does not impose a specific, or
``foreign,'' form of government on the community. Congressional
dealings with the Native Hawaiian community also require that non-
Native Hawaiians be excluded from the ratification vote and membership
because the statutory definitions of the recognized community require a
demonstration of descent from the population of Hawaii as it existed
before Western contact. See 80 FR at 59119. The Department must also
follow Congress's definition of the nature and scope of the Native
Hawaiian community. Therefore, the Department did not make any changes
to the rule in response to these comments.
(2) Comment: Some commenters stated that the term ``Indian'' is not
properly applied to Native Hawaiians, and that the term ``tribe'' is
not properly applied to a Native Hawaiian sovereign or its governing
body. They noted the distinctive history of Native Hawaiians and of the
Kingdom of Hawaii, and asserted that this history renders these
[[Page 71298]]
terms inappropriate for Native Hawaiians and for their government.
Response: As discussed above, the drafters of the U.S. Constitution
used the terms ``Indians'' and ``Indian tribes'' to define Congress's
power and authority with regard to indigenous political sovereigns.
These terms encompass Native peoples who have diverse cultures,
languages, and ethnological backgrounds throughout the United States.
Congress repeatedly exercised its Indian affairs power when legislating
for the Native Hawaiian community over the course of the last century.
It is on that basis that Congress established a special political and
trust relationship with the Native Hawaiian community.
(3) Comment: Some commenters stated that Native Hawaiians do not
consider themselves to be ``Indians'' or members of a ``tribe.''
Response: Congress recognizes the diversity among the indigenous
peoples that fall within the Indian affairs powers. The Department
respects that the Native Hawaiian and Native American communities on
the mainland have exceptionally diverse histories and cultures, and
that many of these communities use their own terminology in referencing
their members and their governments. Accordingly, it is up to the
Native Hawaiian community to establish what terminology it believes is
most appropriate, in accordance with principles of self-determination.
(4) Comment: A commenter noted that Native Hawaiians became United
States citizens at the time of Hawaii's annexation, and that this
distinguished them from Indians elsewhere in the United States, who did
not become citizens until enactment of the Indian Citizenship Act of
1924.
Response: Congress accorded U.S. citizenship to many groups of
Indians, by treaty and by statute, throughout the course of the
nineteenth century and continued to do so until the adoption of the
Indian Citizenship Act. See Cohen's Handbook of Federal Indian Law sec.
14.01[3], at 926-31 (2012 ed.). The fact that Congress accorded Native
Hawaiians U.S. citizenship at the time of Hawaii's annexation, well
before passage of the Indian Citizenship Act, is therefore not a
meaningful distinction.
(f) HHCA Native Hawaiian rights
Issue: The Department received numerous comments on the proposed
rule's express protections for ``HHCA-eligible Native Hawaiians'' and
their existing rights under Federal law. No changes to the proposed
rule were made in response to these comments.
(1) Comment: Many commenters were concerned that the proposed rule
would permit the Native Hawaiian Governing Entity to ``take control of
the Hawaiian home lands,'' and otherwise ``deprive the [HHCA
beneficiaries and] homesteaders of protections they have come to
expect.'' In the process, the commenters allege, the Department would
``abdicate'' its fiduciary duties to this new entity that has no
enforceable commitment to protect HHCA Native Hawaiians, thus
jeopardizing their rights and protections under Federal law.
Response: The Department appreciates the importance of protecting
HHCA beneficiaries' unique status under Federal law. The rule protects
that status in a number of ways:
The rule requires that the governing document protect and
preserve rights, protections, and benefits under the HHCA.
The rule leaves intact rights, protections, and benefits
under the HHCA.
The rule does not authorize the Native Hawaiian government
to sell, dispose of, lease, tax, or otherwise encumber Hawaiian home
lands or interests in those lands.
The rule does not diminish any Native Hawaiian's rights or
immunities, including any immunity from State or local taxation, under
the HHCA.
The rule defines the term ``HHCA Native Hawaiians'' to
include any Native Hawaiian individual who meets the definition of
``native Hawaiian'' in the HHCA.
The 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 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 broadly objectionable to HHCA Native
Hawaiians. The Department expects that the participation of HHCA Native
Hawaiians in the referendum process will ensure that the structure of
any ratified Native Hawaiian government will include long-term
protections for HHCA Native Hawaiians.
The rule prohibits the Native Hawaiian government's
membership criteria from excluding any HHCA Native Hawaiian who wishes
to be a member.
See 80 FR at 59120. Moreover, because Federal law provides both
defined protections for HHCA beneficiaries and specific guarantees of
individual civil rights, HHCA beneficiaries would continue to be
protected after a formal government-to-government relationship is
established. See Sec. 50.13(g)-(j); 80 FR 59125-26.
In short, HHCA beneficiaries' existing rights under Federal law,
and the Secretary's and the State's authority and concurrent
obligations, are unchanged by promulgation of this rule or the
reestablishment of a formal government-to-government relationship with
the Native Hawaiian Governing Entity. Ultimately, only Congress can
diminish or otherwise modify the existing rights of HHCA beneficiaries,
and the Native Hawaiian Governing Entity is bound by Federal law.
Similarly, Congressional action would be required before the Native
Hawaiian Governing Entity, or any political subdivision within it,
would be authorized to manage Hawaiian home lands.
(2) Comment: Some HHCA beneficiaries expressed concern that they
will be reduced to a political subdivision when they currently have the
most rights under Federal law.
Response: The Department takes no position on the internal
organization of any Native Hawaiian government, including the existence
and nature of any political subdivisions. The Department notes,
however, that should such political subdivisions exist, being a
political subdivision of a larger political community does not
necessarily mean that the members of the subdivision will lose rights
or benefits. Questions of what political subdivisions to create, if
any, and what authorities those subdivisions should possess, are for
the Native Hawaiian community to decide.
(3) Comment: Commenters argued that the proposed rule pits non-HHCA
Native Hawaiians against HHCA Native Hawaiians by providing express
protections for the latter while offering the former only the ability
to participate in a government with no guarantee of lands or power over
non-Hawaiians.
Response: As explained above, the rule reflects distinctions
between HHCA Native Hawaiians and Native Hawaiians made by Congress,
and in so doing, protects those existing rights that Congress provided
in the HHCA and in over 150 other statutes relating to the Native
Hawaiian community. If a Native Hawaiian government reorganizes and a
formal government-to-government relationship is reestablished pursuant
to the rule, all Native Hawaiians would benefit through improved
facilitation of
[[Page 71299]]
their existing Federal benefits and a government-to-government
relationship.
(4) Comment: One commenter suggested that the Secretary's role and
responsibility to the HHCA beneficiaries should be defined in the rule;
as an alternative, this commenter suggested authorizing an Inspector
General or Ombudsman specifically for HHCA beneficiaries.
Response: The Secretary's role and responsibilities toward Native
Hawaiians are defined by multiple Acts of Congress, see, e.g., the
HHCA, the Admission Act, and the HHLRA. Congress specifically
authorized the Department's Office of Native Hawaiian Relations within
the Office of Policy, Management, and Budget to focus on Native
Hawaiian relations, including HHCA beneficiaries' rights and benefits
under the HHCA. That office is the primary office to address concerns
by these constituents, and can involve other Departmental offices or
agencies as necessary. The Department made no changes to the rule in
response to this comment.
(5) Comment: Commenters stated that the HHCA Native Hawaiians
should be permitted to submit a separate request to the Secretary based
on broad-based support within that group.
Response: Congress consistently treated the Native Hawaiian
community as a single entity through more than 150 Federal laws.
Congress's recognition of a single Native Hawaiian community reflects
the fact that a single Native Hawaiian government was in place prior to
the overthrow of the Kingdom of Hawaii. See response to comment
(1)(m)(18). Congress established a special political and trust
relationship with a single Native Hawaiian community, even as it used
different definitions to focus on specific persons within that one
community. For example, in 2000, Congress enacted the American
Homeownership and Economic Opportunity Act to help satisfy the need for
affordable homes in Indian communities. 12 U.S.C. 1701, 25 U.S.C. 4101;
Act of December 27, 2000, 114 Stat. 2944. As part of that program,
Congress addressed housing assistance for Native Hawaiians and broadly
defined the term ``Native Hawaiian'' consistent with the definition of
Native Hawaiians in this rule. See 25 U.S.C. 4221(9). In the same
statute, Congress separately recognized that the ``beneficiaries of the
Hawaiian Homes Commission Act'' should be given a unique opportunity to
comment on particular aspects of the program. 25 U.S.C. 4239(d). In the
Act's findings, Congress specifically stated that, among the Native
Hawaiian population, those eligible to reside on the Hawaiian home
lands have the most severe housing needs. 25 U.S.C. 4221 Note; Act of
December 27, 2000, 114 Stat. 2944. It follows that the Department
cannot support an approach that would permit a subset of the Native
Hawaiian community to separately request a government-to-government
relationship independent of the rest of the community recognized by
Congress. Instead, any request must demonstrate broad-based support
from the recognized Native Hawaiian community as a whole.
(g) Ratification Referendum
Issue: The Department received numerous comments on the proposed
rule's provisions related to the requirements of and the process for
voting in the ratification referendum for the Native Hawaiian
government's governing document, as well as who may vote and how those
votes must be tallied.
(1) Comment: Commenters state that the rule should not set
numerical thresholds for the ratification referendum. Instead,
ratification of the governing document should be demonstrated by a
majority (or a plurality) of actual voters, regardless of turnout.
Response: The Department disagrees. The ratification vote must
reflect the views of the Native Hawaiian community as demonstrated
through broad-based community participation in the ratification
referendum and broad-based community support for the governing
document. Broad-based community participation and support are essential
to ensuring the legitimacy of the Native Hawaiian government and the
viability of its formal government-to-government relationship with the
United States.
A low vote in favor of the governing document would demonstrate a
lack of broad-based community support. Similarly, a high voter turnout
that fails to secure a majority of votes in favor of the governing
document would also demonstrate a lack of broad-based community
support. Accordingly, the rule sets numerical thresholds for community
participation in support and requires that the number of votes in favor
be a majority of all votes cast. These thresholds are based on an
objective measure of broad-based community participation and on the
requirement that votes in favor constitute a majority of all votes
cast. Without them, multiple Native Hawaiian groups could purport to
lead the effort to reestablish a government-to-government relationship
with the United States, each with its own governing document approved
through a ``ratification'' process, each purporting to legitimately
represent the entire community. Establishing reasonable numerical
thresholds at the outset provides a transparent and sound basis for
distinguishing a governing document that has the Native Hawaiian
community's broad-based support from a governing document that lacks
such support.
(2) Comment: Some commenters state that the numerical thresholds in
the proposed rule's Sec. 50.16(g)-(h) are too high and could not be
met as a practical matter. Other commenters stated that they are too
low in light of census data on the size of the Native Hawaiian
population.
Response: A number of commenters urged higher numerical thresholds;
others urged lower thresholds; and many commenters supported the
proposed thresholds. These comments are significant because they
indicate that there is no clear consensus on whether the Department's
threshold numbers are too high or too low. The Department concludes
that the thresholds enumerated in Sec. 50.16 are reasonable and
achievable. The methodology for producing these ranges is explained in
detail in Section (III).
(3) Comment: Commenters questioned the significance of the 50,000
and 15,000 affirmative-vote presumptions of broad-based community
support since the proposed rule requires that a minimum of 30,000
affirmative votes, including a minimum of 9,000 affirmative votes from
HHCA Native Hawaiians, is sufficiently large to show broad-based
community support.
Response: The 30,000 and 9,000 affirmative-vote thresholds are
minimum thresholds designed to help the Department determine whether a
requester demonstrates that the governing document has broad-based
community support. For example, if 29,999 or fewer Native Hawaiians
vote in favor of the requester's governing document, it is reasonable
to find a lack of broad-based community support among Native Hawaiians,
and the Secretary would decline to process the request. In contrast, if
50,000 or more Native Hawaiians vote in favor of the requester's
governing document (and they constitute a majority of all Native
Hawaiians who vote), the Secretary is justified in applying a
presumption that the broad-based community support criterion is
satisfied. The proposed rule referred to the presumption as ``strong.''
The Department has only referenced a ``presumption'' in the final rule,
to clarify that the Secretary has full
[[Page 71300]]
authority to review the request and accompanying materials for
consistency with this rule and with Federal law. If the number of
affirmative votes constitutes a majority and falls in between those
figures--i.e., if the number of affirmative votes is in the range of
30,000 to 49,999--the Secretary will consider the request and will need
to determine, unaided by any presumption, whether the requester
demonstrated that the governing document has broad-based support from
the Native Hawaiian community.
The same approach applies to the tally of affirmative votes cast by
the subset of Native Hawaiians who are also ``HHCA Native Hawaiians,''
except the affirmative vote thresholds are 9,000 (rather than 30,000)
and 15,000 (rather than 50,000).
(4) Comment: Commenters state that the rule's numerical thresholds
should not be based solely on census data, which rely entirely on self-
reporting rather than on documentary verification of Native Hawaiian
descent.
Response: The rule's numerical thresholds are not based solely on
census data, as the sample methodology presented above demonstrates. In
setting the thresholds, the Department not only considered data from
the Federal decennial censuses of 2000 and 2010 (both for Hawaii and
for the United States), but also considered: (1) Voter-registration
data for all Hawaiians; (2) voter-registration data for Native
Hawaiians (when such data were kept); (3) voter-turnout data for all
Hawaiians; (4) voter-turnout data for Native Hawaiians (again, when
such data were kept); (5) data from the 2014 American Community Survey
(ACS) (both for Hawaii and for the United States); (6) data from the
Native Hawaiian Roll Commission's Kanaiolowalu roll; (7) data from a
1984 survey summarized in the Native Hawaiian Data Book; (8) population
projections from the Strategic Planning and Implementation Division of
the Kamehameha Schools; and (9) data from the Hawaiian Sovereignty
Elections Council's 1996 ``Native Hawaiian Vote.''
The Department finds the actual election data particularly
probative. As explained above, in the 1990s, the Hawaii Office of
Elections tracked Native Hawaiian status. The Office 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. Thus, the census data
and voter data are consistent and reliance on the voter data is
reasonable. See also Kamehameha Schools, Ka Huakai: 2014 Native
Hawaiian Education Assessment 16-22 (2014) (population projections)
(citing Justin Hong, Native Hawaiian Population Projections
(unpublished 2012)).
(5) Comment: Commenters state that numerical thresholds in 2016
should not be based on obsolete data from Census 2010.
Response: First, as explained above, the Census Bureau is only one
of several sources used in setting the rule's numerical thresholds.
Second, 2010 is the year of the most recent Federal decennial census of
population, so the Department gave it greater weight than earlier
census data. Third, the Department also considered data from the 2000
Federal decennial census to discern population trends that could be
projected forward to 2016. Finally, the Department considered more
recent census data from the ACS. Figures from the 2014 ACS are based on
statistical sampling rather than an enumerated headcount and therefore
may have a sizable margin of error, but are broadly consistent with
figures from the decennial censuses.
The Department based this analysis on existing, available data. If
significant new data become available, the Secretary may elect to issue
a supplemental rule revising the rule's thresholds.
(6) Comment: The rule provides that those seeking to vote in any
ratification referendum must be able to reliably verify their Native
Hawaiian ancestry. Some commenters stated that the numerical thresholds
should be adjusted downward because some self-reported Native Hawaiians
may not be able to verify their Native Hawaiian ancestry, and because
the verification process will impose administrative burdens that will
reduce participation in the referendum.
Response: The verification process is not likely to be burdensome
enough to significantly deter voter participation. In addition, the
final rule includes new provisions in Sec. 50.12 to afford the Native
Hawaiian community flexibility in compiling a voter list that is based
on documenting Native Hawaiian ancestry without significant
administrative burdens in verifying ancestry.
(7) Comment: Commenters suggest that numerical thresholds should
reflect actual ``participation rates for the larger U.S. citizenry'' in
actual elections.
Response: As described above, in establishing the rule's numerical
thresholds, the Department relied in part on actual turnout figures in
Hawaii's presidential and off-year (gubernatorial) elections, both in
the 1990s and in recent years, and adjusted them for out-of-state
voters. The Department concludes that the adjustments to the voter-
turnout data for in-state Native Hawaiians provide a reasonable
objective measure on which to base its affirmative vote-thresholds to
demonstrate broad-based community support.
(8) Comment: Commenters state that the proposed rule's numerical
thresholds are inconsistent with requirements established for Indian
tribes in the continental United States, including the so-called ``30-
percent rule'' in 25 U.S.C. 478a, a 1935 amendment to the Indian
Reorganization Act of 1934 (IRA), which provides that certain tribal
constitutions may be adopted only by a majority vote in an election
where the total votes cast are at least ``30 per centum of those
entitled to vote.''
Response: The IRA elections referenced by these commenters do not
apply to this rule because the IRA does not encompass Native Hawaiians.
The number of persons ``entitled to vote'' is based on Congressional
definitions and on projections from necessarily imprecise demographic
and voter-turnout data. Some degree of approximation therefore is
inevitable.
Although the IRA's 30-percent rule is not applicable, available
demographic evidence suggests that the threshold numbers the Department
selected are generally consistent with that rule. To take one example:
It appears that, at some point between 2015 and 2017, the number of
Native Hawaiian adults residing in Hawaii topped or will top 200,000.
See Ka Huakai: 2014 Native Hawaiian Education Assessment, supra, at 20.
Thirty percent of 200,000 is 60,000 Native Hawaiian voters--that is,
the number of such adults who would be expected to vote in an election
whose turnout barely meets 25 U.S.C. 478a's 30-percent requirement--and
a majority vote in a 60,000-voter election would require 30,001
affirmative votes. These figures, among others, support the rule's
30,000-affirmative-vote threshold for Native Hawaiians.
Likewise, it is reasonable to estimate the number of HHCA Native
Hawaiian adults residing in Hawaii to now be about 60,000. See infra
(estimating the fraction of Native Hawaiians who are also HHCA Native
Hawaiians). Thirty percent of 60,000 is 18,000 HHCA Native Hawaiian
voters--that is, the number of such adults who would be expected to
vote in an election whose turnout barely meets 25 U.S.C. 478a's
[[Page 71301]]
30-percent requirement--and a majority vote in an 18,000-voter election
would require 9,001 affirmative votes. These figures, among others,
support the rule's 9,000-affirmative-vote threshold for HHCA Native
Hawaiians.
(9) Comment: Commenters state that the rule's numerical thresholds
should account for out-of-state Native Hawaiians and should not
``disenfranchise'' out-of-state Native Hawaiians or assume that they
are not interested in issues involving the Native Hawaiian community.
Other commenters state that the thresholds are too low given census
data on the size of the Native Hawaiian population nationwide.
Response: Many out-of-State Native Hawaiians show great interest in
their community and the Department adjusted the estimated voter turnout
upward to include their participation. They are not disenfranchised by
this rule. Indeed, Sec. 50.14(b)(5)(iii) expressly accounts for them
by requiring that the ratification referendum be ``open to all persons
who were verified as satisfying the definition of a Native Hawaiian . .
. and were 18 years of age or older [on the last day of the
referendum], regardless of residency'' (emphasis added). It is likely,
however, that out-of-State Native Hawaiians will not participate to the
degree that in-state Native Hawaiians will participate in the
ratification referendum. Almost half of all self-identified Native
Hawaiians in the 2010 Census and the 2014 ACS resided out of state, but
fewer than one-fifth of those on the Native Hawaiian Roll Commission's
Kanaiolowalu roll reside out of state. Thus, while the rule does not
disenfranchise out-of-state Native Hawaiians, it significantly
discounts their expected participation rate in calculating numerical
thresholds.
(10) Comment: Commenters suggest that the threshold for HHCA Native
Hawaiians should be based solely on the number of Hawaiian home lands
residential leases and the number of individuals on the DHHL waitlist.
Response: The rule is designed to reestablish a formal government-
to-government relationship with the entire Native Hawaiian community,
not just with the community of Native Hawaiians who reside or wish to
reside on Hawaiian home lands. The rule requires separate tallying of
the ratification referendum ballots cast by HHCA Native Hawaiians
because Congress defined the community using the narrower definition
(limiting the population to what this rule refers to as ``HHCA Native
Hawaiians,'' rather than ``Native Hawaiians''). Further narrowing the
population to exclude HHCA Native Hawaiians who never obtained or even
sought a Hawaiian home lands residential lease would be inconsistent
with Congress's approach.
(11) Comment: Commenters stated that the numerical thresholds for
affirmative votes cast by HHCA Native Hawaiians should be more than 30
percent of the equivalent numbers for Native Hawaiians because the
former will ``(a) be more aware that they actually are Hawaiian, (b)
[be] more aware that there is a nation-building initiative afoot, (c)
have a bigger stake in the issue, and (d) be more likely to be
currently part of an active Hawaiian sovereignty or cultural group.''
Response: Assuming that the assertions listed in the comment are
true, they may render it easier for the community to meet the 9,000-
affirmative-vote threshold. But these assertions do not justify raising
the threshold, which is tied principally to the size of the community
of HHCA Native Hawaiians, just as the 30,000-affirmative-vote threshold
is tied principally to the size of the community of Native Hawaiians.
As explained in detail above, the Department's best estimate of the
size of the HHCA Native Hawaiians is that it is about 30 percent the
size of the Native Hawaiian community (including HHCA Native
Hawaiians).
(12) Comment: Several commenters suggested that the proposed rule
be revised to allow the ratification referendum to consider multiple
potential governing documents, and permit adoption of the document that
secures a plurality of the vote.
Response: After evaluating comments on this issue, the Department
determined to leave these provisions of the rule unchanged.
The proposed and final rules leave open the option of structuring a
referendum process and balloting in such a way that the voters may cast
votes on multiple documents at once--in effect, combining referenda on
several documents into the same proceeding. Such an approach would
provide the members of the Native Hawaiian community options while
still providing clear evidence of which documents have broad-based
support from the community through a majority vote.
But a simple plurality vote is not an appropriate way to measure
whether a governing document has broad-based community support. Under a
``plurality wins'' rule, the number of votes required to prevail
becomes a function of the number of options on the ballot, not how
strongly and broadly supported any one option is. A majority vote is
essential to show that the number of Native Hawaiians supporting a
particular governing document exceeds the number opposing it. If the
Native Hawaiian people want to consider more than one governing
document in a single ratification referendum, they may do so by putting
each document to its own up-or-down vote. Then, if only one governing
document garners a majority of the votes cast, it satisfies the rule's
majority-vote requirement. If two or more governing documents each
garner a majority, then the community must apply a previously announced
method for determining which governing document prevails. For example,
the community could decide, prior to the referendum, that the
``winner,'' as between two (or more) governing documents that each
receive majority support, will be the one that receives the greatest
number of affirmative votes. This approach would also satisfy the
rule's majority-vote requirement. But a document that is not supported
by much more than a third, or a quarter, of Native Hawaiian voters
cannot form the proper basis for a formal government-to-government
relationship with the United States.
(13) Comment: Commenters suggest that the rule should require a
supermajority vote, such as a two-thirds majority, because a
constitutional ratification typically is held to a higher standard than
regular legislation, which may pass with a simple majority vote.
Response: While the Department recognizes that many constitutional
processes, in the United States and elsewhere, require supermajority
votes, the exact fraction (two-thirds, three-quarters, three-fifths,
etc.) is often highly controversial. Furthermore, the broad-based-
community support requirement does not rely on just one simple
majority, but instead turns on both (1) a required voter turnout of
both Native Hawaiians and HHCA Native Hawaiians and (2) a requirement
of a minimum number of affirmative votes from both Native Hawaiians and
HHCA Native Hawaiians. Indeed, if total turnout in a ratification
referendum fell a bit short of 60,000 Native Hawaiians (or 18,000 HHCA
Native Hawaiians), the 30,000- and 9,000-affirmative-vote thresholds
would effectively serve as supermajority-vote requirements. Also, in
calculating a simple majority, the number of votes cast in favor of the
governing document must exceed the sum of the number of votes cast
against the governing document and the number of spoiled ballots (i.e.,
ballots that were mismarked, mutilated, rendered impossible to
determine the voter's intent, or marked so as to violate
[[Page 71302]]
the secrecy of the ballot); this, too, is akin to a slight
supermajority-vote requirement.
Moreover, if the Native Hawaiian community wishes to require a
supermajority vote to adopt its governing document, it certainly may do
so without running afoul of the rule. However, the rule itself does not
impose that requirement.
(14) Comment: Some commenters objected to defining ``Native
Hawaiians'' and ``HHCA Native Hawaiians'' separately for purposes of
voting in the ratification referendum and suggested that all Native
Hawaiians should have ``equal input'' in establishing a formal
relationship with the United States. Some also suggested that the
separate voting unnecessarily divides the community.
Response: In the response to comments section in the proposed rule,
the Department explained the HHCA beneficiaries' unique status under
Federal law and the importance of recognizing and protecting their
Federal rights and benefits in the rule. See 80 FR 59119-20, 59123-24,
59126. See also response to comment (1)(f)(1). The Department further
explained that Congressional definitions of the Native Hawaiian
community, in the HHCA and other Acts of Congress, require that any
reestablishment of a formal government-to-government relationship must
take account of both ``HHCA Native Hawaiians'' and ``Native
Hawaiians,'' respectively, to keep within this statutory framework. 80
FR 59124. Therefore, the rule requires that a majority of the voting
members of both the ``HHCA Native Hawaiians'' and ``Native Hawaiians''
confirm their support for the Native Hawaiian government's structure
and fundamental organic law in order to eliminate any risk that the
United States would reestablish a formal relationship with a Native
Hawaiian government whose form is broadly objectionable to either HHCA
Native Hawaiians or Native Hawaiians, and to ensure that the structure
of any Native Hawaiian government reflects the views of Native
Hawaiians and HHCA Native Hawaiians. 80 FR 59120.
The rule also requires that the Native Hawaiian community
demonstrate in its request to reestablish a formal government-to-
government relationship that its constitution or other governing
document received broad-based community support from both HHCA Native
Hawaiians and Native Hawaiians. Thus, regardless of which Congressional
definition is used, a majority of each defined group within the voting
members of the community must confirm their support for the Native
Hawaiian government's structure and fundamental organic law. Although
the distinction may be viewed unfavorably by some commenters, the
Department chose to defer to the Congressional definition appearing in
the HHCA in defining a class of eligible voters. Accordingly, both
``HHCA Native Hawaiians'' and ``Native Hawaiians'' may participate and
have an opportunity to influence the content of a constitution or other
governing documents and equally decide whether that constitution or
other governing document is ratified. See Sec. 50.16.
(15) Comment: Some commenters supported the proposed rule's
approach of providing for distinct votes by HHCA Native Hawaiians and
Native Hawaiians to be tallied separately--a ``double vote'' based on
the two relevant Congressional definitions. These commenters stated
that this approach was an important safeguard to ensure that ``the
rights of the HHCA-eligible are not subsumed by the rights of the non
HHCA-eligible.'' But others expressed the view that the double-vote
structure of the proposed rule is ``undemocratic'' because it gives
greater voting and veto power to HHCA Native Hawaiians.
Response: The rule provides that a majority of the voting members
of the Native Hawaiian community recognized by Congress must confirm
their support for the Native Hawaiian government's structure and
fundamental organic law in order to demonstrate ``broad-based community
support.'' Congress defines the Native Hawaiian community in two
separate ways, and the Department is simply using the definitions
adopted by Congress. Moreover, this approach is consistent with many
voting systems that reflect existing geographic or legal distinctions,
such as the U.S. Constitution's provision that each State has two
senators irrespective of population.
(16) Comment: Commenters state that distinguishing HHCA Native
Hawaiian voters from other Native Hawaiian voters imposes a significant
administrative burden of verifying HHCA Native Hawaiian status and
cannot be done without substantial monetary and other resources from
the Federal Government.
Response: The response to comment (1)(c)(1) above explains how
sworn statements may be used to demonstrate ``HHCA Native Hawaiian'' or
``Native Hawaiian'' status for purposes of voting in the ratification
referendum. The sworn statement could be an option for the Native
Hawaiian community to establish potential voters' eligibility to vote
in the ratification referendum. Such sworn statements do not impose a
significant administrative burden and do not require financial or other
assistance by the Federal Government.
(17) Comment: Some commenters expressed the view that non-HHCA
Native Hawaiians should not be allowed to ``outvote'' HHCA Native
Hawaiians.
Response: Because the rule requires that a majority of HHCA Native
Hawaiians who participate in the ratification referendum must vote in
favor of the governing document, it is effectively impossible for them
to be ``outvoted.'' See response to comments on Sec. 50.13(4).
(18) Comment: Some commenters stated that participants in the
ratification referendum for the governing document, and candidates for
election to the government established by that document, should be
required to show proof of political loyalty to the Native Hawaiian
community and proof of affiliation with Native Hawaiian cultural,
social, or civic groups. Commenters similarly suggested that the
numerical thresholds should not be based on the total number of Native
Hawaiians, but rather on the total number of Native Hawaiians who
voluntarily seek to participate in exercising a Native status under the
U.S. Constitution. These commenters stated that persons who do not seek
to exercise Native status under the U.S. Constitution, or who
vehemently oppose their status as U.S. citizens because they consider
themselves subjects of their own Kingdom, should not be counted when
determining numerical thresholds.
Response: The Department considered these comments and elected not
to revise the rule to include such limitations. The rule is intended to
promote self-determination and self-governance for the entire Native
Hawaiian community, without distinguishing between members of the
community on the basis of political beliefs or points of view. All
Native Hawaiian adults should have the opportunity to vote in any
ratification referendum, and this broad population also provides a
metric against which broad-based community support is measured. The
goal of the ratification referendum is to measure whether the governing
document has broad-based support within the Native Hawaiian community.
It is appropriate to allow the broadest possible participation in that
referendum. Commenters' suggested requirement of proof of political
loyalty or affiliation with Native Hawaiian cultural, social, or civic
groups would limit participation in the referendum inconsistent with
[[Page 71303]]
Congress's recognition of the entire community and the purposes of this
rule.
The Department did not include any requirements relating to
qualifications for officers in the Native Hawaiian government because
such qualifications are a matter of internal self-government. These
issues should be decided by the Native Hawaiian community and reflected
in its governing document.
(19) Comment: Commenters stated that the Department's voting
requirement is contrary to the methodology used for the Native Hawaiian
Roll Commission's roll under Act 195.
Response: On July 6, 2011, the Hawaii legislature passed SB1520,
which was signed into law as Act 195 by Governor Neil Abercrombie. That
act recognized Native Hawaiians as the indigenous people of the
Hawaiian Islands and established the Native Hawaiian Roll Commission to
certify and publish a roll of ``qualified Native Hawaiians.'' Although
the findings in Act 195 reference the lack of a formal government-to-
government relationship between a Native Hawaiian government and the
United States, the purpose of Act 195 articulates the State's interests
in implementing ``the recognition of the Native Hawaiian people by
means and methods that will facilitate Native Hawaiian self-
governance,'' including the ``use of lands by the Native Hawaiian
people, and by further promoting their culture, heritage, entitlements,
health, education and welfare.'' In 2013, the Hawaii legislature
adopted Act 77, which provided for the inclusion of additional persons
on the roll compiled by the Native Hawaiian Roll Commission.
The Act 195 process is a separate and distinct process from that
set out in this rule, and has a separate, although similar, purpose.
The Department did not conform the requirements in the final rule to
the provisions of any roll or process now existing or underway within
the State of Hawaii. Nonetheless, as the Native Hawaiian community
prepares its list of eligible voters, the rule does not prohibit it, in
the exercise of self-determination over its own affairs, from relying
on a State roll or State documentation that is based on verified
documentation of descent as an alternative to doing its own
verification of descent. The rule is intended to provide guidance and a
process to a Native Hawaiian government that submits a request and can
meet the rule's requirements. Such a request could be submitted at any
time in the future, so the rule is not linked to any existing processes
or circumstances that could limit its future application. Nor does the
Department endorse any particular roll or process over any other.
Commenters refer to the fact that the rule's requirements differ
from those applied by the Native Hawaiian Roll Commission. Differing
requirements reflect the separate nature of the two processes and their
results. Further, the Department notes that the requirements applied by
the Commission have changed since the initial enactment of Act 195, and
may be subject to subsequent changes. If the Department receives a
request seeking to reestablish a government-to-government relationship,
the Department will evaluate whether the request meets the rule's
criteria and is consistent with this part.
(h) U.S. Citizenship
Issue: The proposed rule required that Native Hawaiians be U.S.
citizens. The Department received a significant volume of comments
requesting that the Department eliminate this requirement in the final
rule, noting that Congress frequently defined ``Native Hawaiian''
without requiring U.S. citizenship.
Comment: One commenter conducted a survey of statutes containing a
definition of the term ``Native Hawaiian'' and concluded that of 45
identified Federal statutes containing such a definition, 31 do not
limit that definition to U.S. citizens. The commenter also noted that
the definition of ``native Hawaiian'' in the HHCA does not incorporate
a U.S. citizenship requirement, and that a review of 48 tribal
government constitutions revealed that 92 percent do not require U.S.
citizenship as an express condition of tribal membership. The commenter
stated that, in at least one instance, the Federal Government adjusted
Federal law to accommodate a Native government's citizenship definition
that allowed for non-citizens to become members (citing the Texas Band
of Kickapoo Act, Pub. L. 97-429, 96 Stat. 2269 (1983)). The commenter
also stated that ``the practical reality is that the number of Native
Hawaiians who are not U.S. citizens represents a de minimis percentage
of the overall population of qualified Native Hawaiians.''
Response: After considering these comments, the Department
eliminated the U.S. citizenship requirement in the final rule. Section
4 of the Hawaiian Organic Act declared all persons who were citizens of
the Republic of Hawaii on August 12, 1898, citizens of the United
States. Further, Congress made every ``person born in the United States
to a member of an Indian, Eskimo, Aleutian or other aboriginal tribe''
a citizen with the enactment of the Nationality Act of 1940, 54 Stat.
1137, 1138.\6\
---------------------------------------------------------------------------
\6\ Congress made all non-citizen Indians citizens by the Act of
June 2, 1924, 43 Stat. 253.
---------------------------------------------------------------------------
Although some statutes require U.S. citizenship as an element of
the statutory definition of membership in the Native Hawaiian
community, those statutes generally involve eligibility for federally
funded programs or benefits. See, e.g., 25 U.S.C. 4221(9) (requiring
U.S. citizenship for Native Hawaiians to participate in programs under
the Native American Housing Assistance and Self-Determination Act). It
is common for Congress to restrict availability of programs or benefits
to U.S. citizens; by doing so, however, Congress did not exclude non-
citizens from the Native Hawaiian community with which the United
States established a special political and trust relationship.
Moreover, the Supreme Court has explained that indigenous communities
generally may determine their own membership as a matter of internal
self-governance. E.g., Santa Clara Pueblo, 436 U.S. at 72 n.32. The
Department determined that Congressional requirements for federally
funded programs or benefits do not override this important principle of
self-governance, and eliminated the citizenship requirement in the
final rule.
Although the Department considers membership criteria to be matters
of internal self-governance, to the extent Federal law incorporates
U.S. citizenship as a requirement for participation in a Federal
program or for eligibility for Federal benefits, that requirement
remains in effect, notwithstanding membership provisions adopted by a
Native Hawaiian government.
(i) Roll
Issue: Commenters expressed views on the proposed rule's reliance
on a State roll, also called Kanaiolowalu, compiled by the Native
Hawaiian Roll Commission (NHRC).
(1) Comment: Some commenters stated that they objected to
provisions of the proposed rule, including Sec. 50.12(a)(1)(ii) and
(b), ``that would allow a roll of Native Hawaiians certified by a State
of Hawaii commission like Kanaiolowalu that is being used by Nai Aupuni
to determine participation'' and requested that these provisions be
removed. The commenters stated that it was not appropriate to accord
special status to a roll compiled by a State agency, and also opposed
any
[[Page 71304]]
use of the NHRC Roll because of the nature of the process used by the
NHRC.
Response: The Department considered these comments and determined
it appropriate to revise these provisions of the proposed rule to
address this issue.
The Department agrees with this comment in part. The proposed rule
incorporated distinct standards for use of a roll compiled by a State
agency. In response to these comments, the rule now provides that the
Native Hawaiian community will compile its list of eligible voters. The
rule provides a uniform standard to govern the list of eligible voters
for the ratification referendum, which would apply irrespective of who
prepared the list. That approach allows the Native Hawaiian community
the freedom to determine how it will develop a list for use in
ratification of its governing documents.
The rule does not, however, bar the use of a roll that incorporates
work by State agencies, especially if it is efficient to do so. For
instance, the Department sees little benefit in the Native Hawaiian
community redoing work done by the State that verified Native Hawaiian
ancestry, including its determination that an individual qualifies as
an HHCA Native Hawaiian. To the extent a State roll is based on
documented ancestry, the Native Hawaiian community may rely on it, if
it so chooses. Such reliance will facilitate the process of preparing
its list of voters, particularly if relevant records are within the
exclusive control of State agencies, and will minimize the burdens on
individual Native Hawaiians who previously submitted documentary
evidence and were determined to be qualified. The Department respects
the Native Hawaiian community's ability to reorganize its government
for the purposes of reestablishing a formal government-to-government
relationship as it sees fit, and therefore defers to the community as
to whether and to what extent it wishes to rely on State sources to
tailor a list of eligible voters for ratification purposes. The
Department revised Sec. 50.12 to address these comments.
(2) Comment: Some commenters questioned the methods used to compile
the NHRC roll, stating that the names of deceased individuals, minors,
and persons who did not consent to be listed appear on the roll. Others
stated that ``most Hawaiians have not agreed to'' the NHRC roll process
and that the roll will not benefit the Native Hawaiian people
generally.
Response: The Department reviewed these comments and made changes
in the final rule in Sec. 50.12.
For instance, the Department acknowledged commenters' concerns by
providing a uniform standard for preparation of the list of eligible
voters by the Native Hawaiian community. The criteria for the list
provide that it must not include adults who object to being listed, and
revised Sec. 50.12(a) provides that the community must make reasonable
and prudent efforts to ensure the integrity of its list. Importantly,
the proposed rule did not require use of any State roll; and the final
rule permits, but does not require, the Native Hawaiian community to
use a State roll, with conditions and modifications, for purposes of
demonstrating how it determined who could participate in ratifying a
governing document. See Sec. 50.12(a).
Moreover, the Department defers to the Native Hawaiian community
itself to establish the process by which it will compile any list of
voters, subject to certain requirements set forth in the final rule.
These requirements address some of issues raised by commenters relating
to the NHRC. For instance, the proposed and final rules both contain
provisions that are intended to provide for the integrity of the
process of compiling the list and to protect the integrity of the
voting process itself. The rule permits the community to rely on
documented sources that it determines are reliable in compiling its
list.
If a reorganized government submits a request to the Secretary to
reestablish a formal government-to-government relationship, the rule
provides that the request must include an explanation of the manner in
which the rule's requirements were satisfied. The public will have an
opportunity to comment on any request the Secretary receives.
Individuals who continue to have concerns about the process used in
compiling the voter list may submit comments at that time. In making a
decision, the Secretary will review not only the specific request but
also the overall integrity of the ratification process to determine if
it was free and fair and otherwise complies with the rule's
requirements.
(3) Comment: A commenter said that it was not appropriate for the
roll used in conducting the ratification referendum under Sec. 50.12
to incorporate any considerations of racial ancestry, and that use of
the NHRC roll was inappropriate for this reason.
Response: To the extent that these comments suggest that the
Department must reestablish a formal 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. The Department adheres to Congress's definition of the nature
and extent of the Native Hawaiian community.
(4) Comment: A commenter stated that ``the Supreme Court's
injunction [in the Akina litigation] should caution any prudent public
official to question the wisdom of using Hawaii's tainted registration
roll for any purpose whatsoever.''
Response: As explained above, the proposed and final rules do not
require the use of any particular roll, including the NHRC roll. The
final rule requires the Native Hawaiian community to prepare its list
of voters and sets out the requirements for that list, but it does not
preclude reliance on any pre-existing roll as long as that roll meets
the standards in the rule.
The Department need not and will not address the merits of the
Akina litigation in this rulemaking. The injunction referenced by the
commenter preserved the status quo during a pending appeal, and did not
resolve the merits of the case. The United States' views on the Akina
litigation are available for review in briefs submitted to the United
States District Court for the District of Hawaii and to the United
States Court of Appeals for the Ninth Circuit.
(5) Comment: One commenter objected to the use of the Kanaiolowalu
because it based eligibility to register in part on a declaration of
``civic, cultural, or social connection as demonstrated in their
unrelinquished sovereignty.''
Response: The proposed rule did not require reliance on the
Kanaiolowalu or any other state roll as the sole means to determine
eligibility to vote in the ratification referendum. Sections 50.12;
50.14(b)(5)(iii). The preamble to the proposed rule at 80 FR 59122
provided expressly that such a declaration as referred to by the
commenter was not required for purposes of participation in the
ratification referendum. Further, the proposed rule placed express
conditions on any use of a State roll, such as the Kanaiolowalu, see
Sec. 50.12(b)(2). Nevertheless, the comments indicate some confusion
on the permissible use of any State roll under the terms of the
proposed rule.
Accordingly, the final rule includes a revised Sec. 50.12(a) that
provides that the Native Hawaiian community itself prepares the list of
eligible voters. It also clarifies alternative means by which an
individual Native Hawaiian can demonstrate a right to vote in the
[[Page 71305]]
referendum, even if that individual is not on a roll that the community
may choose as a foundation from which to build its complete voter list.
Finally, the final rule includes, in response to other comments, sworn
statements for self-certification or for sponsoring another, and
reliance on current or prior enrollment as a Native Hawaiian in a
Kamehameha Schools program, certain birth certificates, and court
orders. Such changes also address the commenter's concerns. In sum,
even if a declaration as described by the commenter were required for
purposes of being on a State roll that the community may rely on under
Sec. 50.12(a), the Native Hawaiian community must also accept, for
purposes of the referendum ratification, other persons who demonstrate
eligibility based on HHCA-eligibility or Native Hawaiian ancestry.
(j) Nai Aupuni
Issue: Commenters expressed concern about the nation-building
process facilitated by Nai Aupuni, a nonprofit organization that
convened a constitutional convention, known as an Aha, of Native
Hawaiians to reorganize as a government.
(1) Comment: Several commenters indicated their belief that the
purpose of the proposed rule was to design, implement, or evaluate the
outcome of the Aha coordinated by Nai Aupuni. They suggested that the
proposed rule had a predetermined outcome --either that no entity would
be able to meet the criteria to reestablish a formal relationship with
the United States, particularly because doing so would pose a
significant financial impediment, or that only the entity that emerged
from the Aha coordinated by Nai Aupuni would qualify.
Response: These commenters misunderstood the proposed rule. The
process set forth in the proposed rule is applicable to any entity that
results from the current government-reorganization process, or from any
other such process in the future. The final rule does not change this
broad applicability. It is entirely up to the Native Hawaiian community
to determine whether or when it will reorganize a formal government,
and it may seek financial assistance from various sources to fund its
future governmental activities, including conducting the ratification
referendum. Similarly, it is entirely up to the Native Hawaiian
community to determine the form and functions of such government and to
avail itself of the process established in the final rule. The rule
does not infringe on the self-determination of the Native Hawaiian
community, and addresses only those matters necessary to reestablishing
a formal government-to-government relationship with the United States.
(2) Comment: Some commenters stated that Nai Aupuni did not
represent their views and could not speak for them without their
consent. Others expressed concerns about alleged flaws in the nation-
building process conducted by Nai Aupuni.
Response: Section 50.11 provides that 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. This
general requirement helps to ensure that the process for drafting the
governing document includes input from representative segments of the
community. The regulations do not set specific requirements relating to
the process of nation-building. The process of nation-building is one
for the Native Hawaiian community to undertake on its own, and the
Department will defer to the community to carry out that process.
Accordingly, the proposed rule sets forth only general requirements for
submitting a request to reestablish a formal government-to-government
relationship. The final rule retains these limited general
requirements. The Department takes no position in the rule as to
whether any ongoing nation-building process might meet those
requirements. If Native Hawaiians do not agree with a particular
nation-building process or approach, they will have the opportunity to
vote in a referendum and express that view.
If a reorganized government submits a request to the Secretary to
reestablish a formal government-to-government relationship, the rule
provides that the request must include an explanation of the manner in
which these requirements were satisfied. The public will have an
opportunity to comment on any request the Secretary receives.
Individuals who have concerns about the process used by the Native
Hawaiian community may submit comments at that time.
(k) Land status
Issue: Commenters objected to Sec. 50.44(f) of the proposed rule,
which expressly preserves the title, jurisdiction, and status of
Federal lands and property in Hawaii.
(1) Comment: Some commenters stated that the proposed rule should
provide for certain Federal lands to be transferred to Native Hawaiians
or Native Hawaiian entities, and questioned the legal validity of
Federal acquisition of lands formerly owned by the Kingdom of Hawaii
and its monarchs.
Response: Changes in title to Federal lands require statutory
authority. This rule does not alter any existing Federal law that
authorizes the transfer of Federal property. It is possible, however,
that a future Native Hawaiian Governing Entity may be qualified to
receive Federal property under provisions of Federal law.
With respect to comments questioning the legal status of existing
Federal property, the Supreme Court recently discussed this issue in
Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163 (2009), and found
that title was properly in the Federal government. Therefore, only
Congress can resolve the commenters' concerns.
Several commenters expressed the importance of allowing a future
Native Hawaiian sovereign to hold property, noting that Native
Hawaiians are spiritually connected to the land and that title to land
can facilitate self-governance. Although the rule does not affect
Federal lands, a future Native Hawaiian government could acquire
property by other methods. For example, an existing provision of State
law provides for the transfer of one of the Hawaiian Islands,
Kahoolawe, to ``the sovereign native Hawaiian entity upon its
recognition by the United States and the State of Hawaii.'' Haw. Rev.
Stat. 6K-9 (2016). A future Native Hawaiian government could also
acquire property by other means, and the rule does not affect its
ability to do so.
(2) Comment: Commenters requested that the final rule omit Sec.
50.44(f) entirely, while others suggested revising Sec. 50.44(f) in
the final rule by changing the word ``will'' to ``does'' and adding the
word ``current'' before ``title'' so the paragraph reads:
``Reestablishment of the formal government-to-government relationship
does not affect the current title, jurisdiction, or status of Federal
lands and property in Hawaii'' (emphasis added).
Response: Section 50.44(f) expressly preserves the title,
jurisdiction, and status of Federal lands and Federal property in
Hawaii. Therefore, because reestablishment of the formal government-to-
government relationship, by itself, would not affect title,
jurisdiction, or status of Federal lands either at the time of
reestablishment of the relationship or at any time thereafter, the
Department did not revise Sec. 50.44(f) with ``current'' as suggested.
The Department did, however, revise this paragraph by changing ``will''
to ``does'' to make express that nothing in
[[Page 71306]]
the rule itself would affect the status of Federal lands and property.
As stated above, the Department appreciates that members of the
community believe it is important to secure a land base for the future
reorganized Native Hawaiian government; however, providing for
jurisdiction or changing the status of Federal lands and property may
only occur with statutory authorization. Following reestablishment of a
government-to-government relationship, the Native Hawaiian Governing
Entity may advance any concerns it may have on land-related issues to
the executive and legislative branches of the United States Government
on a government-to-government basis.
(l) Gaming
Issue: The Department solicited public comments in the proposed
rule, 80 FR 59121, about whether the reestablishment of a formal
government-to-government relationship would entitle the Native Hawaiian
government to conduct gaming under the Indian Gaming Regulatory Act
(IGRA).
Comment: Some commenters responded that IGRA should apply, others
commented that the Native Hawaiian Governing Entity's inherent
sovereign powers would include the power to conduct gaming activities,
and that this inherent power could not be limited in any way, or be
``subordinate'' to State law. One commenter suggested that ``[g]aming
by the Native Hawaiian government should be left to . . . negotiations
with the Federal government.''
Response: The Department concludes that IGRA does not apply. For
the reasons set forth below in Section (IV)(C), the Native Hawaiian
Governing Entity would not be within the definition of ``Indian tribe''
appearing in IGRA, which is limited to those tribes that are
``recognized as eligible by the Secretary for the special programs and
services provided by the United States to Indians because of their
status as Indians.'' 25 U.S.C. 2703(5); 25 CFR 292.2. IGRA was enacted
to balance the interest of states and tribes and to provide a framework
for regulating gaming on ``Indian lands.'' There are no such lands in
Hawaii. Even if it could be argued that certain Hawaiian lands are
similar to ``Indian lands'' within the meaning of IGRA, IGRA does not
permit gaming in any State that prohibits all forms of gaming. See 25
U.S.C. 2710(b)(1)(A) and (d)(1)(B). Hawaii statutes broadly prohibit
all forms of gaming. See State v. Prevo, 361 P.2d 1044, 1048-49 (Haw.
1961).
(m) Reestablishment of a Government-to-Government Relationship
Issue: Commenters asked specific questions related to the
reestablishment of a formal government-to-government relationship and
its potential impacts.
(1) Comment: Commenters asserted that the HHCA authorized land to
be taken into trust for the benefit of HHCA beneficiaries, including
acquisitions and land exchanges, citing to HHCA Section 206. These
commenters suggest that the HHCA is sufficient legal authority for the
Department to place lands into trust for the benefit of the Native
Hawaiian Governing Entity without further Congressional authorization.
Response: The Department recognizes the vital importance of a land
base to the governments of indigenous communities in the United States,
including the Native Hawaiian community. There is no present Federal
statutory authority, however, for taking land into trust for the Native
Hawaiian community, including the HHCA, which applies to the Hawaiian
home lands that are under State (not Federal) jurisdiction. A primary
source of the Department's authority to take land in trust for tribes
in the continental United States is the IRA, and Native Hawaiians are
outside its scope. See Kahawaiolaa v. Norton, 386 F.3d at 1280 (noting
that the IRA's geographic-scope provision, 25 U.S.C. 473, expressly
excluded territories but included Alaska, and that the definition of
``Indian'' in 25 U.S.C. 479 specifically referenced aboriginal peoples
of Alaska, a territory like Hawaii at the time the IRA was enacted, and
finding that, by its terms, the IRA ``did not include any native
Hawaiian group''). Consequently, the Secretary does not have authority
to take land into trust for Native Hawaiians under the IRA.
(2) Comment: The Department received a number of comments that
indicated a belief that the final rule would alter an existing
regulatory structure. The comments did not, however, state specifically
which existing regulations would be altered.
Response: The rule does not alter an existing regulatory structure.
It creates a new, one-time procedure for reestablishing a formal
government-to-government relationship with the Native Hawaiian
community. No such rule is currently in place. The Department has
regulations in place for facilitating the reorganization of tribal
governments, but those regulations by their terms do not apply to the
Native Hawaiian community. See 25 CFR part 81. In addition, Department
regulations under part 83 do not apply to Native Hawaiians, nor do
those regulations apply to an Indian tribe that already has been
recognized by Congress. 25 CFR part 83. The final rule is not an
amendment to those regulations, but a freestanding rule that takes into
account the unique status of the Native Hawaiian community.
(3) Comment: Some commenters indicate concern that development of a
procedure to reestablish a formal government-to-government relationship
with the Native Hawaiian community would surrender either Native
Hawaiian sovereignty or the future ability of some groups to assert
self-governance rights.
Response: The premise of this rulemaking process is that Native
Hawaiian people retain their inherent sovereignty, which Congress
recognizes and acknowledges through enacting over 150 statutes, thereby
creating a special political and trust relationship with the Native
Hawaiian community. The rule creates a process to reestablish a formal
government-to-government relationship with a future Native Hawaiian
reorganized government. The existence of such a process, however, does
not change the nature or the inherent sovereignty of the Native
Hawaiian community.
(4) Comment: Some commenters expressed concern that the future
Native Hawaiian government would not have the ability to bring suit to
seek redress for past wrongs. They referenced claims relating to ``1.8
million acres of land ceded by the Republic of Hawaii to the United
States,'' to ``Hawaiian Homelands used now for airports or harbors,''
to ``people who have died without an award while waiting on the list of
Hawaiian Homes,'' and other claims.
Response: Neither the proposed rule nor the final rule presumes to
address possible claims by Native Hawaiians for past wrongs. The rule
provides, in Sec. 50.44(a), that the Native Hawaiian Governing Entity
will have ``the same inherent sovereign governmental authorities'' as
do federally-recognized tribes in the continental United States. The
Native Hawaiian Governing Entity will have the capacity to sue and be
sued (subject to sovereign immunity and other jurisdictional
limitations), as do other indigenous sovereigns in the United States.
The inherent governmental authorities of tribes in the continental
United States include the ability to file suit to seek redress for past
wrongs. This rule does not alter the sovereign immunity of the United
States or of the State of Hawaii against claims for past wrongs. The
Department will not address the validity of particular legal claims
identified by commenters
[[Page 71307]]
because they are beyond the scope of the proposed rule.
(5) Comment: Multiple comments requested that the proposed rule be
clarified to indicate that it was not intended to affect any claims
that the Native Hawaiian people may have for redress under Federal law.
Response: Any existing claims that the Native Hawaiian people may
have for redress under Federal law, either individually or
collectively, are not addressed by this rule. The Department makes no
comment as to the potential merits of any such claims, which are
properly addressed by the legislative or judicial branches of the
Federal Government rather than in this rulemaking. The existence and
consideration of any claims that may exist are not related to the final
rule and are separate and distinct matters. Accordingly, the Department
made no changes to the proposed rule in response to this comment.
(6) Comment: Some commenters suggested that once a formal
relationship is reestablished pursuant to the rule, the Native Hawaiian
Governing Entity could rely on the Trade and Intercourse Act, 25 U.S.C.
177, to trigger lawsuits alleging unconstitutional takings of Federal,
State, and private lands in Hawaii.
Response: The Trade and Intercourse Act requires Congressional
ratification of transfers of real property from Indian tribes. The U.S.
Supreme Court recognized in Hawaii v. Office of Hawaiian Affairs, 556
U.S. 163 (2009), that claims to title of public lands were extinguished
when Hawaii was annexed as a United States territory. As a result,
subsequent transfers of these lands are not subject to the Act.
Moreover, the Act does not apply to lands transferred into private
ownership before annexation, as Hawaii was then a separate sovereign
that was not subject to the requirements of the Act.
(7) Comment: Several commenters requested that the rule address
procedures for consultation between Federal agencies and the Native
Hawaiian Governing Entity, following reestablishment of a government-
to-government relationship.
Response: Procedures for consultation with federally-recognized
tribes in the continental United States are set forth generally in
Executive Order 13175. In addition, many Federal agencies have their
own policies governing tribal consultation. The Department of the
Interior and other Federal agencies already consult with Native
Hawaiian organizations under these existing policies. Should a
government-to-government relationship be reestablished with a Native
Hawaiian government pursuant to this Rule, Federal agencies would
evaluate whether consultation could occur under existing consultation
policies, or whether those policies would need to be modified.
(8) Comment: Several commenters expressed the view that Native
Hawaiians should be eligible for programs available to Native Americans
under Federal law.
Response: Congress provides a distinct set of programs and benefits
for Native Hawaiians. In some instances, Congress provides for Native
Hawaiians to participate in programs directed to Native Americans
generally. In others, Congress provides a parallel set of benefits to
Native Hawaiians within the framework of legislation that also provides
programs to other Native groups. As explained elsewhere in the
Preamble, the Department determined that Congress included Native
Hawaiians in a large number of Federal programs in various ways. In
some instances, Congress expressly provided for Native Hawaiians to
receive benefits as part of a program provided to Native Americans
generally; in others, Congress has provided a distinct program or set
of programs, parallel to those that exist for other Native American
groups. See Section (IV)(C).
To the extent that Native Hawaiians are not eligible for certain
programs, it follows that this treatment reflects a conscious decision
by Congress. Moreover, because of the structure of many Federal
programs, to treat a Native Hawaiian government or its members as
eligible for programs provided generally to federally-recognized tribes
or their members in the continental United States could result in
duplicative services or benefits. The Department concludes that it is
for Congress to decide to include Native Hawaiians in additional
Federal programs directed towards Native Americans.
(9) Comment: The List Act states: ``The Congress finds that . . .
(3) Indian tribes presently may be recognized by Act of Congress; by
the administrative procedures set forth in part 83 of the Code of
Federal Regulations denominated `Procedures for Establishing that an
American Indian Group Exists as an Indian Tribe.'' List Act findings,
sec. 103. A commenter expressed concern that this language is
inconsistent with the Department's proposal in the notice of proposed
rulemaking.
Response: The Department notes that the quoted language refers to
the Department's existing part 83 procedures, and that Congress's
reference to part 83 signals Congressional approval of the Department's
authority to adopt such procedures by regulation. The Department
adopted part 83, following notice and comment, through the exercise of
its delegated authorities. This rule is adopted through the same
process and under the same authorities. Nonetheless, the significant
difference between part 83 petitioners and the Native Hawaiian
community is that Congress itself has already recognized, and
established a special political and trust relationship with, the Native
Hawaiian community; the finding cited by the commenter also references
the power of Congress in this respect. Therefore, this rule addresses a
fundamentally different situation than that addressed in part 83.
(10) Comment: A commenter states that the Department's proposed
approach of including Native Hawaiians within the scope of the Indian
Civil Rights Act, but not within the scope of other Federal statutes,
did not reflect a consistent approach to the application of existing
Federal statutes addressing Native Americans.
Response: To determine which statutes will apply to the Native
Hawaiian Governing Entity, the Department considers each statute's
language defining its scope of application. The requirements of the
Indian Civil Rights Act apply to ``Indian tribes,'' and that act uses
broad language to define the term ``Indian tribe'': ``Any tribe, band
or other group of Indians subject to the jurisdiction of the United
States and recognized as possessing powers of self-government.'' This
language would include the Native Hawaiian Governing Entity. By
contrast, many other Federal statutes define the term ``Indian tribe''
by referring to tribes that are ``eligible for the special programs and
services provided to Indians because of their status as Indians,'' and
as discussed in Section (IV)(C), Congress provided for the Native
Hawaiian community under a separate panoply of programs and services.
(11) Comment: A commenter expressed concern about the possibility
that the Indian Child Welfare Act and the Violence Against Women Act
would become applicable in Hawaii by virtue of reestablishment of a
government-to-government relationship, stating that the application of
these statutes would have disruptive effects in Hawaii.
Response: Neither the Indian Child Welfare Act nor the Violence
Against Women Act's tribal-criminal-jurisdiction provision would apply
to the Native Hawaiian Governing Entity.
[[Page 71308]]
The Indian Child Welfare Act applies only with respect to ``Indian
tribes,'' and defines ``Indian tribe'' to mean ``any Indian tribe,
band, nation, or other organized group or community of Indians
recognized as eligible for the services provided to Indians by the
Secretary because of their status as Indians, including any Alaska
Native village as defined in section 1602(c) of title 43.'' 25 U.S.C.
1903(8). Because the Native Hawaiian Governing Entity would not be an
entity ``recognized as eligible for the services provided to Indians by
the Secretary because of their status as Indians,'' the statute would
not apply. And the Violence Against Women Act's provision recognizing
tribal criminal jurisdiction over certain domestic-violence crimes
applies only to conduct that ``occurs in the Indian country of the
participating tribe.'' 25 U.S.C. 1304(c)(1), 1304(c)(2)(A). As
explained in these responses to comments, there will not be Indian
country in Hawaii absent some affirmative Congressional action, and
these provisions will therefore not apply unless Congress determines
otherwise.
(12) Comment: Commenters requested that the language of Sec.
50.44(a) be amended to state: ``Sec. 50.44 (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, with the same privileges, immunities and
inherent sovereign governmental authorities.'' Commenters stated that
this language will clarify that the Native Hawaiian government will
have both the same privileges and immunities as other federally-
recognized tribes in the continental United States, and possess the
same inherent sovereign governmental authorities.
Response: The Department agrees that, following the reestablishment
of a formal government-to-government relationship pursuant to this
Part, the Native Hawaiian government will have the same inherent
sovereign governmental authorities as federally-recognized tribes in
the continental United States, as set forth in Sec. 50.44(a). Those
authorities include certain inherent attributes of sovereignty, such as
sovereign immunity. Likewise, Native Hawaiian rights, protections,
privileges, immunities, and benefits under Article XII of the
Constitution of the State of Hawaii would not be affected by
reestablishment of a government-to-government relationship. The
Department determined that the existing language of Sec. 50.44(a)
adequately describes the inherent authorities of the Native Hawaiian
Governing Entity, and therefore made no changes in the rule.
(13) Comment: A few commenters expressed concern that existing
Federal and State laws would no longer apply to members of the Native
Hawaiian Governing Entity.
Response: Members of the Native Hawaiian Governing Entity would
remain subject to applicable Federal and State law, as well as laws
enacted by the Native Hawaiian Governing Entity.
For example, the Native Hawaiian Governing Entity would have
authority to exercise jurisdiction over relationships between its
members by enacting family laws, contract laws, or other laws that
would govern those relationships. To the extent that the Native
Hawaiian Governing Entity adopts such laws, they generally would apply
as between its members notwithstanding contrary State law. See Kelsey
v. Pope, 809 F.3d 849 (6th Cir. 2016); John v. Baker, 982 P.2d 738, 749
(Alaska 1999).
Because there is no Indian country in Hawaii, upon reestablishing a
government-to-government relationship with the United States, the
Native Hawaiian Governing Entity would not have territorial
jurisdiction. While Congress imposed certain restrictions on alienation
of Hawaiian home lands, title to those lands is held by the State, not
the Federal Government. Therefore, the State retains jurisdiction over
Hawaiian home lands unless Congress provides otherwise in the future.
See response to comment (l)(2).
(14) Comment: One commenter stated that the rule would ``open a
Pandora's box'' for other groups, such as the Amish and Cajuns, to seek
tribal status. Others expressed similar concerns.
Response: These commenters do not appear to appreciate the
important distinction between communities based on shared history and
culture and a political community that represents the continuous
existence of an inherent indigenous sovereign, such as the Native
Hawaiian community. The U.S. Constitution expressly references Indian
tribes and provides for relationships with them; the Amish, Cajuns, and
similar groups do not have native or indigenous status under Federal
law. See further discussion of the continuing Native Hawaiian political
community in Section (II).
(15) Comment: Some commenters expressed concern that the rule would
divide Hawaii's integrated, multicultural Hawaiian society and create
unnecessary social divisions between Native Hawaiians and non-Native
Hawaiians.
Response: The rule is based on the pre-existing sovereign authority
of the Kingdom of Hawaii that was evidenced by treaties with the United
States and later suppressed as part of the annexation process; it is
not creating any ``social divisions'' as the commenter suggests. The
rule provides a process for reestablishing a formal government-to-
government relationship between two sovereigns and will assist the
Native Hawaiian community in preserving their unique culture, language,
and traditions. Congress found that the constitution and statutes of
the State of Hawaii similarly ``protect the unique right of the Native
Hawaiian people to practice and perpetuate their cultural and religious
customs, beliefs, practices, and language.'' Native Hawaiian Health
Care Act, 42 U.S.C. 11701(3); see Native Hawaiian Education Act, 20
U.S.C. 7512(21). Consistent with these findings, the Department agrees
with the commenter who observed that ``[t]he Native Hawaiian people and
their culture are the foundation of the culture of the State of Hawaii,
and an integral part of what makes Hawaii work as a multicultural
society . . . . A federally-recognized Native Hawaiian government will
help to improve the Native Hawaiian people's ability to strengthen and
perpetuate the indigenous culture and language of these islands,
thereby strengthening Hawaii for all.''
(16) Comment: Commenters questioned the use of the term
``reestablish'' in referring to a future government-to-government
relationship between the United States government and a Native Hawaiian
government. They noted that the relationship between the United States
government and the Hawaiian Kingdom was a treaty relationship between
nation-states, and that a future relationship with a Native Hawaiian
government would have a different character.
Response: The Department agrees that the formal government-to-
government relationship with a Native Hawaiian government would have
very different characteristics from the government-to-government
relationship that formerly existed with the Kingdom of Hawaii, and
would much more closely resemble the relationship with federally-
recognized tribes in the continental United States. The Department's
use of the term ``reestablish'' is intended to be understood in this
broader context.
The Department notes that, due to the unique history of Hawaii,
either the term ``reestablish'' or the term ``establish'' could be used
to describe the formalization of the relationship
[[Page 71309]]
between the United States Government and a Native Hawaiian Governing
Entity, and believes that either term is appropriate. The relationship
between the United States and the Native Hawaiian community is
reflected in a significant number of Congressional actions recognizing
and providing benefits to Native Hawaiians, though the Native Hawaiian
community has lacked a unified formal government since the nineteenth
century. The Native Hawaiian community historically had a unified
formal government that was recognized through formal treaties with the
United States. Due, in part, to actions taken by representatives of the
United States, the Kingdom of Hawaii was overthrown, and the Native
Hawaiian community has not maintained a unified formal government over
the past several generations. The United States relationship with a
Native Hawaiian Governing Entity would be ``reestablished'' in the
sense that the United States previously maintained a formal
relationship with a Native Hawaiian government, not that the former
relationship between the United States and the Kingdom of Hawaii would
resume or be resurrected.
(17) Comment: One commenter stated that because the Kingdom of
Hawaii included native-born and naturalized non-Hawaiian citizens, many
of whom served in high-ranking positions in the Kingdom government, no
``Native Hawaiian'' government consisting solely of Native Hawaiians
could now ``reorganize'' itself and ``reestablish'' a formal
government-to-government relationship with the United States. Other
commenters similarly asserted that the ``multiethnic'' nature of the
Kingdom at the time of its overthrow disqualifies any future Native
Hawaiian government from exercising self-determination and self-
governance pursuant to Federal law, and that consequently the
Department lacks the authority to promulgate this rule.
Response: The Department does not agree that the presence of non-
Native Hawaiians in the Hawaiian Kingdom indicates that the Native
Hawaiian community lost its character as a self-governing indigenous
community. For example, many Indian tribes in the continental United
States welcomed outsiders and intermarried with non-Indians, and others
found themselves living in close association with non-Indians as a
result of patterns of migration and settlement. Those circumstances did
not preclude those Indian tribes from continuing to exist as self-
governing and sovereign nations. Moreover, Congress established a
special political and trust relationship with the Native Hawaiian
community, and thus determined that the community's political existence
was not negated by the historical events identified by these
commenters. It follows that the Department has authority to reestablish
a formal government-to-government relationship with a future
reorganized Native Hawaiian government.
That the Kingdom of Hawaii included non-Hawaiian citizens among its
citizenry does not establish that the Native Hawaiian community ceased
to exist or exercise political authority. As set forth in the
background discussion of this rule, the Native Hawaiian community
continued to demonstrate its existence as a distinct political
community separate and apart from non-Native Hawaiians before, during,
and after the Kingdom's overthrow. Moreover, though non-Native
Hawaiians participated in governance of the Kingdom, they were
considered ``foreigners'' and their rights were limited. See I Ralph S.
Kuykendall, The Hawaiian Kingdom 227-41 (1947) (citing Constitution and
Laws of the Hawaiian Islands, Established in the Reign of Kamehameha
III (1842)). The rights of such ``foreigners'' evolved over time, but
the Kingdom was a monarchy, and only Native Hawaiians served as
monarchs. The United States had a treaty relationship with the Kingdom
of Hawaii that persisted through active involvement by Native Hawaiians
in the Kingdom's government. The fact that ``foreigners'' lived and
participated in the political process in Hawaii at the time does not
alter the fundamental fact that the United States had a prior political
relationship with the Native Hawaiian community's government in the
1800s.
(18) Comment: Some commenters objected to the proposed rule's
limitation on reestablishing a government-to-government relationship
with a single Native Hawaiian government. Among these commenters, some
proposed that the Secretary allow separate government-to-government
relationships with HHCA Native Hawaiians and with other, non-HHCA
Native Hawaiians based on Congress's separate treatment of these
groups. Other commenters stated that Native Hawaiians did not have a
single unified government until after contact with Western societies,
so that there is no historical basis for treating them as a single
community in the proposed rule.
Response: Many other commenters, however, supported the
Department's approach to provide for a single government-to-government
relationship. History shows that many Native groups changed their form
of government over time, including in response to Western contact. The
single, centralized government of the Kingdom of Hawaii, which was in
place for almost a century before its overthrow in 1893, provides a
strong basis on which to proceed here with a single Native Hawaiian
government to conduct relations with the United States on a formal
government-to-government basis. Moreover, doing so is consistent with
how Congress treated the Native Hawaiian community as a single entity
through more than 150 laws that established programs and services for
its benefit.
As correctly noted by commenters, Congress used two definitions of
Native Hawaiian to establish eligibility for Native Hawaiian programs
and services. See response to comment (e)(1). In the rule, the
Department reconciled Congress's use of these two definitions with its
treatment of Native Hawaiians as a single community by providing for a
government-to-government relationship with one Native Hawaiian
government that has broad-based community support among both HHCA
Native Hawaiians and the broader group of Native Hawaiians. Moreover,
the Department is aware of no Federal statutes directed specifically to
individuals who are Native Hawaiians but who are not HHCA Native
Hawaiians. This lack of statutory separation of the two demonstrates
that Congress views HHCA Native Hawaiians as included within the
broader group of Native Hawaiians, rather than treating the two as
distinct and separate for Federal programs and services. Finally, as
noted above in response to comments about political subdivisions, it is
not uncommon for the United States to have a government-to-government
relationship with a single indigenous government that represents
multiple communities with distinct historical and cultural roots and
property rights.
The final rule also envisions that the Native Hawaiian government
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.
Allowing for political subdivisions is consistent with principles of
self-determination applicable to Native groups, and provides some
flexibility should Native Hawaiians wish to provide for subdivisions
with whatever degree of autonomy the community determines is
appropriate, although only a single formal government-to-government
[[Page 71310]]
relationship with the United States would be established.
(n) Other
(1) Comment: Some commenters opposed the proposed rule because a
group of Native Hawaiians or, as they assert, the majority of Native
Hawaiians, do not support such an action.
Response: The Department is aware that some in the Native Hawaiian
community do not support reestablishment of a formal government-to-
government relationship. Others in the Native Hawaiian community,
however, urge the Department to create the administrative procedure and
criteria proposed in the NPRM and support such action. While there may
be differences of opinion on the issue, the community's views may
change over time, and most importantly, the rule would apply only if
the Native Hawaiian community reorganizes their government and formally
submits a request to reestablish a formal government-to-government
relationship with the United States. Therefore, the Department
determined that it would be appropriate to finalize the rule in order
to give the community notice of what the Secretary would require if at
some point in the future there is broad-based community support for a
reorganized Native Hawaiian government that seeks to reestablish a
formal government-to-government relationship.
(2) Comment: One commenter expressed concern that the proposed rule
was drafted without input from the Native Hawaiian community and that
no ``meaningful consultation'' occurred during the comment period.
Response: The proposed rule was the product of extensive
consultations with the Native Hawaiian community, beginning with the
ANPRM issued in June 2014.
As discussed in Section (V), the ANPRM specifically solicited
comments through a series of questions relating to whether the
Department should assist the Native Hawaiian community in reorganizing
its government and whether the Department should take administrative
action to facilitate the reestablishment of a government-to-government
relationship with the Native Hawaiian community. The issuance of an
ANPRM is not required by statute, and it is an option that Federal
agencies often determine is not necessary to pursue. The Department
determined, however, that issuing an ANPRM would be a vital first step
in gathering diverse and informed input from the Native Hawaiian
community itself. To that end, the Department held 15 public meetings
in Hawaii, divided among the major islands, over a three-week period.
These public meetings provided opportunities for extensive comment from
the community, resulting in over 40 hours of testimony. The Department
met with a range of Native Hawaiian community organizations in Hawaii
for educational outreach during the same period. The Department also
conducted five consultations on the U.S. mainland where many Native
Hawaiians offered comment on the ANPRM, and accepted invitations from
mainland-based Native Hawaiian organizations to participate in forums
regarding the ANPRM.
Based on the comprehensive input received on the ANPRM, the
Department drafted the proposed rule that was published in October
2015. Following publication of the proposed rule, the Department
further consulted with the public and the Native Hawaiian community
through four teleconferences and produced a video that explained its
provisions, available at https://www.doi.gov/hawaiian/procedures. The
Department received thousands of written comments, which it considered
closely in preparing the final rule as noted in Section (IV)(A).
(3) Comment: A commenter stated that the rule relies on the
erroneous assertion that the population of HHCA Native Hawaiians is
declining.
Response: Nothing in the proposed or final rule rests on any
assumption about whether the total number of HHCA Native Hawaiians is
decreasing or increasing. The preamble to the proposed rule noted that
the ratio of HHCA Native Hawaiians to all Native Hawaiians likely is
declining over time, as the general Native Hawaiian population is
increasing. Any fluctuation in population, however, is not a valid
basis to abandon this rulemaking, as there remains a sizable Native
Hawaiian community that may ultimately choose to reorganize its
government. Furthermore, there is great variety in the population
levels of federally-recognized tribes in the continental United States.
(4) Comment: Some commenters criticized the proposed rule's
reliance on certain sources documenting the history of relations
between the United States and Native Hawaiians. One commenter suggested
that these sources are insufficient historical evidence compared to
what must be produced under 25 CFR part 83, the procedures for Federal
acknowledgment of Indian tribes.
Response: The Department relies on Federal statutes, Congressional
preambles to the findings, case law and independent research in setting
out relevant historical events in the proposed and final rules. As the
Federal agency with primary jurisdiction over and subject-matter
expertise on Native Hawaiian affairs, the Department reviewed the
sources cited in the proposed rule and determined that they were
sufficiently reliable before citing them. In response to this comment,
however, the Department welcomed additional information from
commenters, reviewed commenters' suggested sources, and included new
citations to supplement the final rule.
With regard to 25 CFR part 83, the Ninth Circuit concluded that the
regulations for Federal acknowledgment of tribes in the continental
United States do not apply to Native Hawaiians. Kahawaiolaa v. Norton,
386 F.3d at 1274 (citing 25 CFR 83.3 (2004), restricting application of
part 83 to ``those indigenous groups indigenous to the continental
United States''). In upholding part 83's express geographic limitation,
the Ninth Circuit concluded 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.
Id. 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. But unlike a part 83 petitioner, the Native Hawaiian
community has already been ``acknowledged'' or ``recognized'' by
Congress in over 150 enactments. Accordingly, this rule establishes a
process for determining how (not whether) a representative sovereign
government of the Native Hawaiian community can relate to the United
States on a formal government-to-government basis, in addition to the
existing special political and trust relationship. See 80 FR at 59122.
(2) Section-by-Section Response to Comment
(a) Section 50.1--Purpose
(1) Comment: A commenter suggested adding an additional purpose for
the rule: ``To more effectively implement and administer--`(c) Native
Hawaiians' exercise of their inherent sovereignty and right to self-
determination.' ''
Response: The Department agrees with the substance of this comment
and revised the purpose section of the rule. The rule identifies that
one of its purposes is to provide the Native Hawaiian community the
opportunity to more effectively exercise its inherent
[[Page 71311]]
sovereignty and exercise self-determination.
(2) Comment: One commenter noted that the listed purposes of the
rule (Sec. 50.1(a), (b)) are inadequate and that the Department should
indicate how the rule will improve Federal implementation of existing
Native Hawaiian benefits.
Response: The Department made no changes to the rule in response to
this comment. As stated in the preamble, strong Native governments are
critical to exercising inherent sovereign powers, preserving Native
culture, and sustaining Native communities. A unified, reorganized
Native Hawaiian government could provide a formal, direct link on a
government-to-government basis between the Native Hawaiian community as
a whole and the United States.
(3) Comment: A commenter suggested adding an additional purpose for
the rule that describes the HHCA Native Hawaiian community as having
its own right to self-determination and land use.
Response: The Department made no changes to the rule in response to
this comment because the Department will only reestablish a formal
government-to-government relationship with a single Native Hawaiian
government in order to be consistent with Congress's statutory
treatment of Native Hawaiians. See response to comment (m)(18).
(b) Section 50.3--Political Subdivisions
(1) Comment: Commenters suggested amending the rule to provide for
more than one Native Hawaiian government that could seek a government-
to-government relationship with the United States. They assert that
allowing multiple Native Hawaiian governments would more accurately
reflect the composition of the Native Hawaiian community, particularly
HHCA Native Hawaiians who already have a special relationship with the
United States under the HHCA. Similarly, commenters suggested amending
the rule to allow homestead associations or mokupuni (island-wide
councils) to seek formal relationships with the United States.
Response: The Department made no changes to the rule in response to
this comment. The Department appreciates that the Native Hawaiian
community has a rich history of self-governance both as geographically
defined chiefdoms and as a unified government under one Native Hawaiian
monarch. Congress, however, has dealt with Native Hawaiians as a single
community. As a result, the Department will reestablish a government-
to-government relationship with a single Native Hawaiian government
although that government may recognize political subdivisions based on
this history or other distinctions within the community consistent with
Federal law. See response to comment (f)(2).
(2) Comment: One commenter suggested that the final rule should
define the scope of or clarify a political subdivision's ``limited
powers'' in Sec. 50.3.
Response: The Department made no changes to the rule in response to
this comment. By definition, any political subdivision provided for in
the governing document would not be independent of the Native Hawaiian
Governing Entity and thus would have only governmental authorities
derived from the larger entity, i.e., ``limited powers.'' The scope of
those ``limited powers'' would be determined by the Native Hawaiian
community and defined in the governing document.
(3) Comment: One commenter suggested revising the proposed rule to
require that the Native Hawaiian governing document include a provision
establishing a political subdivision limited to HHCA Native Hawaiians
``with the express purpose of managing the federal and state
relationships involved in the implementation of the HHCA and the
HHLRA.''
Response: The Department made no changes to the proposed rule in
response to this comment. The Department respects a Native Hawaiian
government's inherent authority to exercise self-determination and
self-governance by developing a governing document that best suits its
needs and those of its citizenry. The proposed rule accordingly
permitted the Secretary to reestablish a government-to-government
relationship with a single Native Hawaiian government that may include
political subdivisions based on island or other geographic, historical,
or cultural ties out of respect for the Native Hawaiian community's
unique history of self-governance prior to and during the Kingdom of
Hawaii. If HHCA Native Hawaiians determine that their interests are
best served by participating in a Native Hawaiian government through a
political subdivision with specific authorities, they may advocate for
such a requirement during development of the community's governing
document. If the governing document adopted by the community as a whole
provides specific authorities to political subdivisions defined in a
fair and reasonable manner, the Department will respect that grant of
authorities. The Department expects that HHCA Native Hawaiians will
play a key role in developing the governing document, which must be
ratified to reflect the will of the Native Hawaiian community as a
whole through a process that is free and fair.
(c) Section 50. 4--Definitions
(1) Comment: A number of commenters claimed that by defining the
term ``Native Hawaiian'' consistent with past Congressional usage of
the term, the Department potentially undermines attempts by the Native
Hawaiian community to identify their own membership.
Response: Congress has already established a special political and
trust relationship with the Native Hawaiian community. Accordingly, in
this rulemaking the Department applies existing definitions Congress
has adopted in establishing this relationship. The Department
recognizes and supports the community's interest in self-governance,
and notes that any governing document that the community adopts will
appropriately include membership criteria that reflect the community's
own definition of its membership consistent with Sec. 50.13(f).
(2) Comment: A commenter suggested revising the definition of
``HHCA-eligible Native Hawaiian'' to parallel the definition of
``native Hawaiian'' under HHCA sec. 201(a)(7), reasoning that ``HHCA-
eligible Native Hawaiian'' is ``overly complicated'' and could cause
confusion in the community, among other reasons.
Response: The Department amended the definition of ``HHCA-eligible
Native Hawaiian'' in the final rule to more clearly reflect the
definition of ``native Hawaiian'' under the HHCA, as suggested. And for
simplicity, the Department changed the term to ``HHCA Native
Hawaiian.''
(3) Comment: A commenter notes that the definition of HHCA Native
Hawaiian ``seems to disallow descent by out-of-wedlock birth or
claiming a different father than your mother's husband,'' as well as
descent by adoption or from outside the Native Hawaiian community.
Response: The Department made no changes to the rule in response to
this comment. Nothing in the definition of ``HHCA Native Hawaiian''
requires a marriage certificate or would preclude an out-of-wedlock
child from qualifying under the definition. In contrast, a non-Native
Hawaiian child adopted within the community would not be eligible to
participate in the ratification referendum. See Sec. 50.13; response
to comment (c)(1); (i)(3).
(4) Comment: A commenter requested that the Department add ``which
was not repealed and remains in effect with the elements of both
Federal and State
[[Page 71312]]
law'' to the definition of ``HHCA'' in the definitions section of
subpart C in order to clarify that this law was not repealed two years
after Hawaii became a state.
Response: The Department agrees that the HHCA remains in effect and
has elements of both Federal and State law. It is unnecessary to
include clarifying language to that effect in the final rule.
(5) Comment: A commenter requested that the Department add
definitions for the terms ``Secretary,'' ``Rehabilitation of native
Hawaiians'' and ``State.''
Response: The Department made no changes to the definition of
Secretary. The Department chose not to define ``rehabilitation of
Native Hawaiians'' because the term is not used in the rule and is
outside of the scope of the rulemaking. The Department added a
definition of ``State.''
(6) Comment: A commenter asked whether the term ``Native Hawaiian
community'' refers to ``the Hawaiian Nation'' as defined to mean ``a
large aggregate of people united by common descent, history, culture,
or language inhabiting a particular country or territory.''
Response: The term ``Hawaiian Nation'' has a variety of different
meanings and the Department is not aware of any single, authoritative
definition of that term. The term ``Native Hawaiian community'' is
defined in the final rule as ``the distinct Native Hawaiian 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.'' The term
``Native Hawaiian community'' includes the entire community recognized
by Congress and excludes all individuals outside of that community.
(7) Comment: One commenter was concerned that the proposed rule
indicated that individuals with leaseholds on Hawaiian home lands were,
by definition, considered ``Native Hawaiian,'' and that such a
definition was problematic because some individuals have Hawaiian home
land leaseholds because they lived on lands that were subject to the
Hawaiian Homes Commission Act. In short, these individuals became
lessees simply because of the location of their ancestral homestead,
not due to their ancestry. Examples included lands that currently make
up the Papakolea community (including Papakolea, Kewalo, and
Auwailimu).
Response: Ancestry is a crucial component to the definitions of
``Native Hawaiian'' and ``HHCA Native Hawaiian'' in the rule, and a
non-Native Hawaiian lessee would not meet these definitions.
(8) Comment: One commenter expressed concern that the proposed rule
defines ``Native Hawaiian'' in the same terms the Supreme Court found
to be racial in Rice v. Cayetano, 528 U.S. 495 (2000). Numerous
commenters stated, more generally, that the Department's proposed
action was unconstitutional and violated the Equal Protection Clause of
the U.S. Constitution.
Response: The Department disagrees that it defines ``Native
Hawaiian'' in racial terms. Rather, it defines ``Native Hawaiian''
consistent with the special political and trust relationship Congress
acknowledged and recognized in over 150 statutes. The final rule sets
out procedures to reestablish a formal government-to-government
relationship with a distinct indigenous political community recognized
by Congress, and therefore does not violate the Equal Protection Clause
of the U.S. Constitution for the same reasons that the Supreme Court
found provisions of Title 25 of the United States Code relating to
Indians and Indian tribes constitutional in Morton v. Mancari, 417 U.S.
at 554 (``The preference, as applied, is granted to Indians not as a
discrete racial group, but, rather, as members of quasi-sovereign
tribal entities whose lives and activities are governed by the BIA in a
unique fashion.''). The rule is distinguishable from the provisions
found unconstitutional in Rice v. Cayetano. In Rice, the Court
expressly recognized that Mancari and its progeny authorize distinct
treatment of tribes and their members. 528 U.S. at 518-19.
(9) Comment: Several commenters noted that the proposed definition
of ``HHCA-eligible Native Hawaiian'' does not include individuals who
obtained their homestead leases through either Section 208 or 209 of
the HHCA, that is, through valid successorship or transfer pursuant to
federally approved amendments to the HHCA.
Response: The Department made no changes to the rule in response to
these comments. The State proposed an amendment to the HHCA to allow
certain relatives of HHCA lessees to receive a lease through
successorship or transfer; and Congress approved that amendment, making
it law. In general, the amendment permits a homestead lessee to
designate a husband, wife, child, or grandchild who is at least one-
quarter Native Hawaiian ancestry to receive a lease through succession
or transfer. Congress also approved amendments to permit succession to
certain others who meet the definition of ``native Hawaiian'' in HHCA
sec. 201(a)(7). Notably, these amendments do not expand the definition
of ``native Hawaiian'' in HHCA sec. 201(a)(7), and only permit certain
individuals to receive leases through successorship or transfer.
Further, Congress in enacting the HHLRA, defined ``beneficiary'' in
terms of the HHCA definition of ``native Hawaiian'' without reference
to these transfer and successorship amendments. Congress also provided
that the Department ``advance the interest of the beneficiaries'' in
administering the HHLRA and HHCA. The Department therefore concludes
that the HHCA definition in sec. 201(a)(7), as originally enacted,
remains the controlling Congressional definition for purposes of this
rulemaking.
(10) Comment: A commenter suggested that in lieu of eliminating the
U.S. citizenship requirement, the Department could consider amending
the definition in Sec. 50.4 to read that Native Hawaiians must be
``eligible to be considered within the Citizenship clause of the U.S.
Constitution.'' The commenter stated that this amendment would allow
the Native Hawaiian government to include individuals who may have
reasonable concern about being classified as a U.S. citizen, given the
history of the overthrow, but who would otherwise be eligible for such
status under the Constitution.
Response: The Department eliminated the U.S. citizenship
requirement from the rule as unnecessary and inconsistent with many
Federal statutes concerning Native Hawaiians.
(d) Section 50.10--Elements of a Request
(1) Comment: A commenter suggested that the final rule permit an
appointed interim Native Hawaiian governing body to submit a request
for reestablishment of a formal government-to-government relationship,
noting that ``Federal law and policy respects the rights of Native
people in determining their own political priorities.'' Others agreed
and suggested such a governing body could additionally assist in
organizing the organic activities of the reorganized government.
Response: The Department made no changes to the rule in response to
this comment. Section 50.10(f)-(g) requires that an officer of the
Native Hawaiian government submit and certify a duly enacted resolution
of the governing body requesting a formal government-to-government
relationship. This provision presupposes that government officers would
be elected and seated before a request to reestablish a formal
government-to-government relationship could be ``duly'' enacted and
submitted
[[Page 71313]]
under the rule. To ensure that it is the will of the Native Hawaiian
community to present a request to reestablish a formal government-to-
government relationship, the requester must be an elected governing
body, not an appointed one.
(2) Comment: A commenter noted that because elections for
government offices would occur prior to submission of a request to the
Department, those elections seemed ``premature'' since the Department
could reject the governing document that sets out the elections process
and procedures.
Response: The Department made no changes to the proposed rule in
response to this comment. As stated below, the Department is committed
to providing technical assistance at the request of the Native Hawaiian
community. In the event the Department does not accept a governing
document as a basis for a formal government-to-government relationship,
the elected officials' status as officers would presumptively be
unaffected, however, the text of the governing document would
ultimately determine if the election of officers was premature.
Similarly, if the Secretary denies a request to reestablish a formal
government-to-government relationship, that decision would not affect
the authority of the governing document within the community.
(e) Section 50.11--Process for Drafting Governing Document
(1) Comment: Commenters suggested amending the rule to provide the
criteria or types of evidence that the Secretary will consider in a
finding that the minimum standards for demonstrating ``meaningful
input'' from ``representative segments of the Native Hawaiian
community'' were met.
Response: The Department made no changes to the rule in response to
this comment. The Native Hawaiian community itself is in the best
position to determine how to obtain and implement ``meaningful input''
from its diverse membership. The Department anticipates deferring to
reasonable approaches adopted by the community to implement this
standard.
(2) Comment: A commenter asked whether the Department would consult
with the Native Hawaiian government on laws or policies it proposed for
enactment in order to determine whether they could conflict with State
or Federal law.
Response: The Department is willing to provide technical assistance
to facilitate compliance with the final rule and with other Federal
law, upon request for assistance, but encourages the Native Hawaiian
community to seek guidance as to State law from appropriate State
officials and other non-Federal sources.
(f) Section 50.12--Documents That Demonstrate who Participates in
Ratification Referendum
(1) Comment: One commenter suggested removing proposed Sec.
50.12(b) to accommodate Native Hawaiians who object to State-led
efforts to compile a roll of Native Hawaiians, such as the
Kanaiolowalu, to ``encourage a more fair and inclusive referendum for
Native Hawaiians of all political views.'' By contrast, another
commenter suggested amending this provision of the proposed rule to
specify the NHRC as responsible for compiling and certifying the roll.
Response: The Department revised Sec. 50.12 to make clear that the
Native Hawaiian community must develop its own voter list but may rely
on a roll of Native Hawaiians prepared by others, provided certain
conditions are met. Since it is the Native Hawaiian community's voter
list, the Department rejected the suggestion that the final rule place
responsibility for carrying out the conditions set forth in Sec. 50.12
on the NHRC.
(3) Comment: To accommodate Native Hawaiians who lack traditional
``paper'' documentation of their status, one commenter recommended
enhancing the rule's criteria for demonstrating Native Hawaiian and
HHCA Native Hawaiian status for ratification purposes to include
``verification by kupuna (elders) or kamaaina (long term community
residents)'' which some Federal laws currently provide.
Response: The Department made changes to Sec. 50.12 to enhance the
ability of individuals who may not have traditional documentation to
document descent. It is for the Native Hawaiian community to determine
in the first instance whether this commenter's suggestions should be
adopted as ``[o]ther similarly reliable means'' under Sec. 50.12(b)(5)
and (c)(4), and the Department would expect to give deference to the
community's judgment.
(4) Comment: The DHHL expressed concern that the integrity of its
processes for certifying eligibility for HHCA programs and benefits
could be negatively impacted if alternative methods for certification
of ``HHCA-eligible Native Hawaiian'' status are accepted as proposed in
Sec. 50.12(a)(2)(ii). Moreover, citing ``significant administrative
burden'' and its ``responsibility and . . . obligation to lessees,
wait-listers, and applicants to maintain the confidentiality and
security of their personally identifiable information,'' among other
concerns, DHHL objected to being identified as a source to demonstrate
``HHCA Native Hawaiian'' status in the proposed rule at Sec.
50.12(a)(1)(i) and (a)(2)(i).
Response: The proposed rule did not intend to burden or assign a
role for DHHL in the verification process, and nothing in the rule
mandates such involvement. For instance, DHHL may be willing to certify
to an individual that he or she is a Native Hawaiian lessee under HHCA
sec. 201(a)(7), but the rule does not require DHHL to do so.
Individuals who are enumerated on a DHHL roll or list as HHCA-eligible
should have some kind of documentation from DHHL indicating their
status under HHCA sec. 201(a)(7) and such documents are sufficient
proof of their status as ``HHCA Native Hawaiians'' without further
involvement by DHHL. Further, the Department sees no reason to require
such individuals to resubmit ancestry documentation that DHHL
previously found acceptable to those compiling the list of eligible
voters. The Department also finds that persons who meet the definition
of ``native Hawaiian'' in HHCA sec. 201(a)(7) should be permitted to
document such status by using other records or documentation
demonstrating such eligibility, see final rule Sec. 50.12(c), even if
they have not applied to DHHL or their application has not been acted
upon by DHHL.
Finally, as to DHHL's concern about collateral effects on its
certification processes, a determination by the Native Hawaiian
community that an individual is an ``HHCA Native Hawaiian'' for
purposes of compliance with this rule would not have any collateral
effect on eligibility determinations made by DHHL for its own purposes
under its own processes, which may rely on a distinct methodology or
distinct documentation standards.
(g) Section 50.13--Contents of Governing Documents
(1) Comment: Commenters objected to the proposed rule's requirement
excluding non-Native Hawaiians from membership. They expressed their
belief that the Native Hawaiian government should have the opportunity
to decide whether to include non-Native Hawaiians in the formulation of
its governing documents.
Response: The Department made no changes to the rule in response to
this comment. Federal law requires a demonstration of Native ancestry
to be eligible for membership. See response to comment (i)(3).
(2) Comment: A commenter suggested either eliminating Sec.
50.13(j)'s
[[Page 71314]]
requirement that the Native Hawaiian governing document ``[n]ot contain
provisions contrary to Federal law'' or amending it to read: ``Not
contain provisions contrary to current Federal law'' (emphasis added).
Response: The Department made no changes to the rule in response to
this comment. The ordinary reading of Sec. 50.13(j) is that the
governing document must comply with then-applicable Federal law. The
comment is correct, however, in noting that Federal law can change over
time, and the result may be to broaden or narrow the scope of Native
governments' ability to exercise their inherent sovereign authorities,
including authorities identified in their governing documents. See
United States v. Lara, 541 U.S. 193 (2004). Thus, if a governing
document contains a provision that may not be exercised because it is
inconsistent with Federal law, that provision will not necessarily
render that document ``contrary to Federal law'' for purposes of this
section. The result instead would be that the provision will not be
enforceable.
(3) Comment: One commenter asked for guidance on the meaning of
Sec. 50.13(b), which requires the Native Hawaiian governing document
to ``prescribe the manner in which the government exercises its
sovereign powers.''
Response: This language is intended to refer to a governing
document's enumeration of powers of the respective branches of
government and of officials, and establishment of the processes by
which governmental power is exercised. It is intended to be read
together with Sec. 50.13(c), which references establishment of ``the
institutions and structure of the government, and of its political
subdivisions (if any).''
(4) Comment: One commenter expressed the opinion that the
Department would be unable to ``enforce'' the terms of the Native
Hawaiian Governing Entity's initial governing document because the
entity, like an Indian tribe, would be able to amend this document
without Secretarial approval.
Response: The Department made no changes to the rule in response to
this comment. Sec. 50.13 provides minimum requirements for a governing
document, including that it must ``[d]escribe the procedures for
proposing and ratifying amendments to the governing document.'' Section
50.13(i). Under this rule, the Department does not have a
responsibility to approve or disapprove amendments to the governing
document that are ratified after the formal government-to-government
relationship has been reestablished.
(h) Section 50.14--Ratification Referendum
(1) Comment: One commenter suggested adding a provision requiring
verified Native Hawaiians and HHCA Native Hawaiians to ``indicate[] a
willingness to participate in the referendum by enrolling on the
referendum voter list acknowledging U.S. citizenship and the Native
status recognized by Congress. A willingness to participate, regardless
of a vote for or against ratification, is a key baseline criteria that
should be included'' in the final rule. Others echoed the substance of
this comment requiring that the voter list be created through an ``opt-
in'' process.
Response: The Department made no changes to the rule in response to
these comments. The proposed and final rules provide that the voter
list exclude any individual who requests to be removed, which can be
characterized as the ability to ``opt-out.'' Whether ``opt-in'' or
``opt-out,'' each process ensures that individuals are empowered to
exclude themselves from the list. The Native Hawaiian community,
however, may not impose additional criteria, as suggested by the
commenter, which could result in excluding individuals recognized by
Congress as part of the Native Hawaiian community.
(2) Comment: One commenter observed that while the proposed rule
requires a written narrative of the Native Hawaiian government's
ratification process and procedures, there is no ``real review'' by the
Department until after the ratification concludes. This commenter
suggested the final rule include authority for the Native Hawaiian
government to submit its proposed ratification procedures for the
Department's review prior to implementation as an ``intermediate step''
that could potentially prevent avoidable delay or disapproval of the
request on procedural grounds.
Response: The Department made no changes to the rule in response to
this comment. Section 50.21 of the rule authorizes technical assistance
to facilitate compliance with the final rule and other Federal law upon
request by the Native Hawaiian community. Technical assistance could,
for instance, include providing Departmental expertise related to the
community's ratification process and other technical matters.
(i) Section 50.16--Secretarial Criteria
Comment: One commenter requested that the requirement that the
ratification referendum and elections for public office were
``conducted in a manner not contrary to Federal law'' be revised to
refer to ``then established Federal law'' because of the possibility
that Federal law would change at some point following the ratification
referendum.
Response: The Department notes that Federal law imposes fairly few
limitations on a referendum or election conducted by a Native
sovereign. The Voting Rights Act does not apply to such elections, for
example. See Akina v. Hawaii, 141 F. Supp. 3d 1106, 1125-26 (D. Haw.
2015); Gardner v. Ute Tribal Court Chief Judge, 36 Fed. App'x 927, 928
(10th Cir. 2002); Cruz v. Ysleta Del Sur Tribal Council, 842 F. Supp.
934, 935 (W.D. Tex. 1993). The reference to Federal law may therefore
have a fairly limited application. Moreover, the Department believes
that the ordinary reading of this provision is that the referendum and
election must comply with then-applicable Federal law. The Department
accordingly believes that no revision to this provision of the rule
text is necessary, as this is the most natural interpretation of the
existing language.
(j) Section 50.21--Technical Assistance
Comment: Commenters requested that the Department be required to
provide technical assistance on all aspects of the rule, from drafting
of organic documents to compliance with various standards articulated
in the proposed rule, and that such technical assistance include
Federal grants.
Response: The Department made no changes to the rule in response to
this comment. The Department is committed to assisting the Native
Hawaiian community's efforts to exercise self-determination and
reorganize its government, and therefore will provide technical
assistance upon request of the Native Hawaiian community. Regulations,
however, cannot independently authorize Federal grants; statutory
authority is required. The Native Hawaiian community may seek financial
assistance from various funding sources.
(k) Section 50.30 to 50.32--Public Comment/Deadline Extension
(1) Comment: A few commenters stated that the 30-day public comment
period on a request submitted under the proposed rule was insufficient
for substantive review of any request. These commenters urged the
Department to increase the public comment period to 90 days. Others
urged the Department to limit the number of days by which a deadline
may be extended and the number of times those deadline extensions may
be granted. These
[[Page 71315]]
commenters specifically urged that deadlines should only be extended by
30 or 60 days, and that deadlines should only be extended once or
twice.
Response: The Department agrees that more time for substantive
review of any request submitted under this Part is warranted. The final
rule allows 60 days for the public to submit any comments on the
request and permits a single extension by a maximum of 90 days for good
cause. Similarly, the requester will have 60 days to respond to any
comment or evidence, which may be extended by up to 90 days for good
cause. Accordingly, the amount of time the Department has for posting
any comments received during this period is extended to a total of 20
days in Sec. 50.30(b).
(2) Comment: A commenter urged limiting the Secretary to a maximum
of 210 days to review any request, including any extensions granted.
Others added that the Department should not be given complete
discretion to extend its own deadlines and that it should be required
to seek the requester's consent prior to issuing an extension to
itself. Finally, commenters urged amendment of the proposed rule to
mandate action within the allowable timeframes so that the Secretarial
review process is not ``unduly delayed.''
Response: The Department appreciates the importance of timely
review of and action on a request. In response to the comments, the
final rule requires notice to the requester, including an estimate of
when the decision will issue, if the Secretary is unable to act within
120 days. The Department made no further changes to the rule in
response to this comment.
(l) Section 50.40--Secretary's Decision
Comment: Commenters urged that the final rule impose a limit to the
Secretary's decision-making time frame, and if the Secretary fails to
act within that time frame, the request should be deemed approved.
Response: The Department clarified that the Secretary may request
additional documentation and explanation from the requester and the
public with respect to the material submitted, including whether the
request is consistent with this part. The Department made no further
changes to the rule in response to this comment. The significance of
reestablishing a formal government-to-government relationship requires
an affirmative act by the Secretary, so that there can be no question
about the status of that formal relationship.
(m) Section 50.44--Implementation of Government-to-Government
Relationship
(1) Comment: Commenters requested that the final rule be amended by
adding: ``Nothing in this part explicitly or implicitly abrogates,
affects, or impairs any claim or claims of the Native Hawaiian people
under Federal law or International law or affects the ability of the
Native Hawaiian people or their representatives to pursue such claim or
claims in Federal or International forums.'' Similarly, other
commenters requested that the final rule include a provision stating
that the rule itself shall not serve as a settlement of any such
claims.
Response: The Department made no changes to the final rule in
response to these comments. As stated above, this rule does not address
any existing claims that the Native Hawaiian people, either
individually or collectively, may assert for redress under Federal or
international law. All such claims are outside the scope of this
rulemaking, as also discussed above.
(2) Comment: Commenters suggest amending Sec. 50.44(a) to make
express that the Native Hawaiian Governing Entity will have the same
privileges and immunities as federally-recognized Indian tribes in the
continental United States. Another commenter suggested amendments to
the contrary, urging the Department to eliminate language in the rule
that ``may unduly imply that the Native Hawaiian Governing Entity must
be exactly the same as an Indian tribe in all respects.''
Response: Section 50.44(a) states that the Native Hawaiian
Governing Entity would have the same inherent sovereign governmental
authorities as do federally-recognized tribes in the continental United
States and the same government-to-government relationship under the
U.S. Constitution and Federal law. Accordingly, the Native Hawaiian
Governing Entity would have the same inherent privileges and immunities
as do federally-recognized tribes in the continental United States. See
response to comment (1)(m)(12). As to the question whether the Native
Hawaiian Governing Entity is ``exactly the same as an Indian tribe in
all respects,'' the Department responds that Congress systematically
treats the Native Hawaiian community separately from tribes in the
continental United States. The Native Hawaiian Governing Entity will
have the inherent sovereign governmental authorities of a tribe, except
to the extent that Federal law constrains those authorities. For
example, because there is no land in Hawaii meeting the definition of
``Indian country'' and no authority to take land into trust, the Native
Hawaiian Governing Entity will necessarily have limited territorial
authority in the absence of Congressional action to establish such
authority.
(3) Comment: A commenter expressed concern that the rule did not
provide a ``list of permitted powers'' that the Native Hawaiian
Governing Entity could exercise, such as powers that federally-
recognized Indian tribes in the continental United States exercise.
Response: The Native Hawaiian Governing Entity may exercise all its
inherent sovereign powers, and all powers vested in it by Congress,
subject to the limitations in its governing document or established by
Federal law.
(4) Comment: One commenter stated that the proposed rule's
restriction on Native Hawaiians' eligibility for Federal Indian
programs, services, and benefits would be unenforceable because the
Native Hawaiian Governing Entity would be able to amend its initial
governing document without Federal approval just as federally-
recognized Indian tribes in the continental United States are able to
do under 25 CFR part 81.
Response: The Native Hawaiian Governing Entity may not alter
Congress's approach that distinguishes between programs, services, and
benefits provided to federally-recognized tribes in the continental
United States and programs, services, and benefits provided to Native
Hawaiians by amending its governing document after a government-to-
government relationship is reestablished. This rulemaking carefully
adheres to Congress's separate treatment of federally-recognized tribes
in the continental United States and the Native Hawaiian community for
purposes of funding programs, services, and benefits. Congress's
approach binds the Department and the community. See response to
comment (1)(g)(4).
(C) 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 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 rule (1)
describes the extent of the Department's prior consultation with tribal
officials; (2) summarizes the nature of their concerns and the
[[Page 71316]]
Department's position supporting the need to issue the rule; and (3)
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.
Comments regarding access to Federal programs, services, and
benefits available to federally-recognized Indian tribes: The
Department received comments strongly supporting Federal rulemaking to
reestablish a formal government-to-government relationship between the
United States and the Native Hawaiian community. Comments expressed
concern about 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 federally-recognized Indian tribes in the continental
United States. Comments 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, services, and benefits
for a reorganized Native Hawaiian government remain separate from
programs and services dedicated to tribes in the continental United
States.
Response: The Department agrees with these comments. Native
Hawaiians are ineligible for Federal Indian programs and services
absent express Congressional declarations to the contrary.
When creating programs, services, and benefits, Congress
systematically distinguishes between programs, services, and benefits
to Indian tribes in the continental United States and those provided to
the Native Hawaiian community. Congress enacted programs and services
expressly and specifically for the Native Hawaiian community that are
in many respects parallel and analogous to--but distinct from--the
programs and services enacted for federally-recognized tribes in the
continental United States. Federal Native Hawaiian programs and
services are provided to Native Hawaiians as an indigenous Native
Hawaiian community under the Indian affairs power, just as Federal
Indian programs and services are provided to Indian tribes in the
continental United States under the Indian affairs power.
In some instances, Congress expressly provided for Native Hawaiians
to receive benefits as part of a program provided to Native Americans
generally; in others, Congress has provided a distinct program or set
of programs, parallel to those that exist for other Native American
communities. To the extent that Native Hawaiians are not eligible for
certain programs under current law, it follows that this treatment
reflects a conscious decision by Congress. Moreover, because of the
structure of many Federal programs, treating a Native Hawaiian
Governing Entity or its members as eligible for programs provided
generally to federally-recognized Indian tribes in the continental
United States or their members could result in duplicative services or
benefits.
Congress's systematic provision of separate benefits for Native
Hawaiians gives rise to a presumption that Congress did not intend that
Native Hawaiians would also receive essentially duplicative programs,
services, and benefits through programs available to tribes in the
continental United States.\7\ The Department accordingly concludes
that, absent Congressional action that provides Federal programs
directed towards Indians to include Native Hawaiians, the Native
Hawaiian community cannot be treated as ``eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians.'' 25 U.S.C. 479a-1(a).
---------------------------------------------------------------------------
\7\ Cf. Kahawaiolaa, 386 F.3d at 1283 (noting Congress's intent
to treat Native Hawaiians and members of Indian tribes
``differently'' and reasoning that allowing Native Hawaiians to
apply for Federal recognition under part 83 could ``allow native
Hawaiians to obtain greater benefits than the members of all
American Indian tribes'').
---------------------------------------------------------------------------
The distinction between Federal Native Hawaiian programs and
services and Federal Indian programs and services is apparent in the
List Act, which requires the Secretary to publish in the Federal
Register a list of those Indian tribes that ``the Secretary recognizes
to be eligible for the special programs and services provided by the
United States to Indians because of their status as Indians.'' 25
U.S.C. 479a-1(a). A comparison of the definition of ``Indian tribe'' in
25 U.S.C. 479a(2), with the narrower specification of which tribes may
appear on the list itself, see 25 U.S.C. 479a-1(a), indicates that the
reference to ``programs and services'' in section 479a-1(a) is limited
to those Federal programs and services available to tribes generally,
i.e., those in the continental United States, as opposed to Federal
programs and services identified for specific tribes or communities,
such as the Native Hawaiian community.\8\ As explained above, Congress
provides a separate suite of programs and services targeted directly to
Native Hawaiians, and not through programs broadly applicable to
Indians. Congress thus makes plain that Native Hawaiians receive a
distinct set of Federal programs and services so that they are not
eligible for general Indian programs and services.\9\
---------------------------------------------------------------------------
\8\ The definition in 25 U.S.C. 479a(2) specifies that the term
``Indian tribe'' includes an ``Indian or Alaska Native tribe''
because Congress wished to remove any doubt that Alaska Natives were
included within the scope of that term. Indeed, the definition makes
clear that an Alaska Native tribe could be acknowledged by the
Secretary ``to exist as an Indian tribe.'' And the use of the term
``Indian'' in section 479a-1(a) confirms that the term was being
used broadly and must necessarily include Alaska Natives. 25 U.S.C.
479a-1(a) (instructing the Secretary to publish a list of ``all
Indian tribes which the Secretary recognizes to be eligible for the
special programs and services provided by the United States to
Indians because of their status as Indians'' (emphasis added)); see
also 25 U.S.C. 1212-1215 (provisions enacted together with the List
Act that reaffirmed the eligibility of an Alaska Native tribe, and
which refer to a ``federally recognized Indian tribe'' and an
``Alaska Native tribe'' interchangeably); H.R. Rep. No. 103-781 at 5
(noting that the List Act ``requires that the Secretary continue the
current policy of including Alaska Native entities on the list of
federally-recognized Indian tribes which are eligible to receive
services'').
\9\ Even before adoption of the List Act, the Department
maintained a list of tribes that were generally eligible for BIA
programs and services. See Indian Tribal Entities That Have a
Government-to-Government Relationship with the United States, 44 FR
7235 (1979). The List Act ratified and codified the process for
preparing that list. Notably, 25 CFR part 83, ``Procedures for
Federal Acknowledgment of Indian Tribes,'' contains a provision
stating that its purpose is to ``determine whether a petitioner is
an Indian tribe eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians.'' 25 CFR 83.2. Hawaii is outside the scope of part 83,
which further demonstrates the Department's longstanding conclusion
that Native Hawaiians fall outside the scope of these general
programs and services. See 25 CFR 83.3 (stating that ``this part
applies only to indigenous entities that are not federally
recognized Indian tribes''); 25 CFR 83.1 (defining ``indigenous'' to
mean ``native to the continental United States in that at least part
of the petitioner's territory at the time of first sustained contact
extended into what is now the continental United States'').
---------------------------------------------------------------------------
This unique provision of separate programs and services removes
Native Hawaiians from the scope of the Federal Register list published
under the List Act. Therefore, following any reestablishment of a
formal government-to-government relationship with the United States,
the Native Hawaiian community would not be recognized by the Secretary
``to be eligible for the special programs and services provided by the
United States to Indians because of their status as Indians,'' 25
U.S.C. 479a-1(a), and the Native Hawaiian Governing Entity would not
appear on the list compiled under the List Act.
Section 50.44(c)-(d) of the final rule similarly implements
Congress's longstanding distinction between Native Hawaiian programs
and services and
[[Page 71317]]
general Indian programs and services for tribes in the continental
United States.\10\ The List Act's central purpose is to provide
``various departments and agencies of the United States'' with an
``accurate, regularly updated, and regularly published'' list that they
could use ``to determine the eligibility of certain groups [in the
continental United States] to receive services from the United
States.'' List Act findings, sec. 103(7) (codified at 25 U.S.C. 479a
note). The List Act is mandatory and prescriptive, stating that the
Secretary ``shall publish'' a list of ``all Indian tribes which the
Secretary recognizes to be eligible for the special programs and
services provided by the United States to Indians because of their
status as Indians.'' 25 U.S.C. 479a-1(a) (emphasis added); see also
List Act findings, sec. 103(8). In enacting the List Act, Congress
specifically sought to eliminate inconsistencies, to ensure uniformity
in the treatment of federally-recognized tribes in the continental
United States, and to accord those tribes and their membership access
to the same Federal programs and services. See H.R. Rep. No. 103-781.
It follows that federally-recognized tribes in the continental United
States are all ``eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians,'' and that the Secretary has no authority to exclude a
federally-recognized tribe in the continental United States from the
list compiled under the List Act.
---------------------------------------------------------------------------
\10\ See Sec. 50.4 of the final rule defining the terms
``Federal Indian programs, services, and benefits'' separately from
``Federal Native Hawaiian programs, services, and benefits.''
---------------------------------------------------------------------------
The vast bulk of Federal Indian statutes providing programs and
services expressly state that they cover only those Indian tribes that
the Secretary deems eligible for the special programs and services that
the United States provides to Indians because of their status as
Indians. Such statutes include the Indian Self-Determination and
Education Assistance Act (ISDEAA), 25 U.S.C. 450b(e). These Federal
Indian statutes do not currently cover the Native Hawaiian community,
nor would they cover that governing entity with which the United States
reestablishes the formal government-to-government relationship.
Some Federal statutes, however, extend to all Indian tribes without
expressly stating that they cover only those Indian tribes that the
Secretary deems eligible for the special programs and services that the
United States provides to Indians in the continental United States.
Unless the statute's text, structure, purpose, or legislative history
is to the contrary, these statutes would cover the Native Hawaiian
Governing Entity. See, e.g., 25 U.S.C. 1301(1)-(2) (Indian Civil Rights
Act definitions) (covering ``any tribe, band, or other group of Indians
subject to the jurisdiction of the United States and recognized as
possessing powers of self-government,'' which include ``all
governmental powers possessed by an Indian tribe, executive,
legislative, and judicial, and all offices, bodies, and tribunals by
and through which they are executed''); 25 U.S.C. 2801(6) (using the
same definition, in the law-enforcement context); 28 U.S.C. 1362
(providing Federal-court jurisdiction over Federal claims ``brought by
any Indian tribe or band with a governing body duly recognized by the
Secretary of the Interior'').
For certain Federal statutes there may be additional indicators
that particular provisions should or should not be available to the
Native Hawaiian Governing Entity or its members. The Department's
interpretation of a Federal statute providing programs and services to
tribes and their members typically will turn on the statute's
definition of the term ``Indian tribe,'' but a clear expression of
Congressional intent will control. Also, a Federal agency administering
a statute will have authority to resolve any question that may arise as
to the meaning of that statute and the scope of available programs,
services, and benefits.
This determination that the Native Hawaiian Governing Entity is not
eligible for general Federal Indian programs, services, and benefits
also comports with Congress's express intent that the Department's
Assistant Secretary for Policy, Management and Budget (PMB), not the
Assistant Secretary for Indian Affairs, oversee Native Hawaiian
matters, as stated in the HHLRA, sec. 206, 109 Stat. 363.
(V) Public Meetings and Tribal Consultations
The Department held public meetings to gather testimony at both the
ANPRM and proposed rule stages of this rulemaking. In June and July
2014, staff from the Departments of the Interior and Justice traveled
to Hawaii to conduct 15 public meetings on the ANPRM across the State.
Hundreds of stakeholders and interested parties attended sessions on
the islands of Hawaii, Kauai, Lanai, Maui, Molokai, and Oahu. Also
during that time, staff conducted extensive, informal outreach with
Native Hawaiian organizations, groups, and community leaders. Following
the public meetings in Hawaii, the Department held five U.S. mainland
regional consultations in Indian country, supplemented with targeted
community outreach in locations with significant Native Hawaiian
populations. To build on the extensive record gathered during the
ANPRM, in October and November 2015, the Department held four three-
hour teleconferences on the NPRM: two teleconferences that were open to
the public, one specifically targeted to Native Hawaiian organizations,
and one specifically targeted to tribal leaders. Transcripts from all
public meetings held during the ANPRM and NPRM stages are available in
the online docket as well as on the Department's Web site (www.doi.gov/hawaiian).
(VI) 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 final 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 the Executive Order.
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 final rule in a manner
consistent with these requirements.
B. Regulatory Flexibility Act
The Department certifies that this final 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.).
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
601 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for
[[Page 71318]]
any proposed or final rule, it must prepare, and make available for
public comment, a regulatory flexibility analysis that describes the
effect of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of an agency,
or his designee, certifies that the rule will not have a significant
economic impact on a substantial number of small entities. SBREFA
amended the Regulatory Flexibility Act to require Federal agencies to
provide a statement of the factual basis for certifying that a rule
will not have a significant economic impact on a substantial number of
small entities. The Department certified that the proposed rule to
implement these changes to 43 CFR part 50 regulations would not have a
significant economic impact on a substantial number of small entities
(80 FR 59113). The Department did not receive any information during
the public comment period that changes this certification.
The Regulatory Flexibility Act, as amended, requires that Federal
agencies evaluate the potential incremental impacts of rulemaking only
on those entities directly regulated by the rulemaking itself and,
therefore, not on indirectly regulated entities. If a reorganized
Native Hawaiian government decides to seek a formal government-to-
government relationship with the United States, the rule provides the
requirements for submitting a written request to the Secretary of the
Interior. The rule would directly affect any such Native Hawaiian
government. A small governmental jurisdiction is the government of a
city, town, township, village, school district, or special district,
with a population of less than fifty thousand, unless the agency
establishes a different definition that is appropriate to the
activities of the agency by notice and comment. See 5 U.S.C. 601(5).
The Department has not established a different definition by notice and
comment. Therefore, a Native Hawaiian government would not be
considered a small entity under the Regulatory Flexibility Act. See 5
U.S.C. 601(6). No other small entities would be directly affected by
the rule, thus no small entities will be affected by this rule.
C. Small Business Regulatory Enforcement Fairness Act (SBREFA)
This final 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 final rule does not impose an unfunded mandate on state,
local, or tribal governments or the private sector 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 final 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 final 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 final 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 final rule.
I. Paperwork Reduction Act
This final 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. An OMB form 83-I is not
required.
J. National Environmental Policy Act
This final 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 final 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 final 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.
List of Subjects in 43 CFR Part 50
Administrative practice and procedure, Indians--tribal government.
For the reasons stated in the preamble, the Department of the
Interior amends title 43 of the Code of Federal Regulations by adding
part 50 as set forth below:
PART 50--PROCEDURES FOR REESTABLISHING A FORMAL GOVERNMENT-TO-
GOVERNMENT RELATIONSHIP WITH THE NATIVE HAWAIIAN COMMUNITY
Sec.
Subpart A--General Provisions
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?
[[Page 71319]]
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 the
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?
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; 25 U.S.C. 479a, 479a-1
(2015) (reclassified to 25 U.S.C. 5130, 5131 (2016)); 43 U.S.C.
1457; Pub. L. 67-34, 42 Stat. 108, as amended; Pub. L. 86-3, 73
Stat. 4; Pub. L. 103-150, 107 Stat. 1510; sec. 148, Pub. L. 108-199,
118 Stat. 445; 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 that will allow:
(a) The Native Hawaiian community to more effectively exercise its
inherent sovereignty and self-determination; and
(b) The United States to more effectively implement and administer:
(1) The special political and trust relationship that exists
between the United States and the Native Hawaiian community, as
recognized by Congress; and
(2) 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
the United States to any Indian or Alaska Native tribe, band, nation,
pueblo, village, or community in the continental United States that the
Secretary of the Interior acknowledges to exist as an Indian tribe, or
to its 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 the United States to a Native Hawaiian government, its
political subdivisions (if any), its members, the Native Hawaiian
community, Native Hawaiians, or HHCA 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 Native Hawaiian means a Native Hawaiian individual who meets
the definition of ``native Hawaiian'' in HHCA sec. 201(a)(7).
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 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 Native Hawaiian
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 recognition as the Native Hawaiian Governing Entity.
Requester means the government that submits to the Secretary a
request seeking to be recognized as the Native Hawaiian Governing
Entity.
Secretary means the Secretary of the Interior or that officer's
authorized representative.
Sponsor means an individual who makes a sworn statement that
another individual is:
(1) A Native Hawaiian or an HHCA Native Hawaiian; and
[[Page 71320]]
(2) The sponsor's parent, child, sibling, grandparent, grandchild,
aunt, uncle, niece, nephew, or first cousin.
State means the State of Hawaii, including its departments and
agencies.
Sworn statement means a statement based on personal knowledge and
made under oath or affirmation which, if false, is punishable under
Federal or state law.
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 could
participate in ratifying the 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
the governing document?
The written narrative thoroughly describing how the Native Hawaiian
community determined who could participate in ratifying the governing
document must explain how the Native Hawaiian community prepared its
list of eligible voters consistent with paragraph (a) of this section.
The narrative must explain the processes the Native Hawaiian community
used to verify that the potential voters were Native Hawaiians
consistent with paragraph (b) of this section, and to verify which of
those potential voters were also HHCA Native Hawaiians, consistent with
paragraph (c) of this section, and were therefore eligible to vote. The
narrative must explain the processes, requirements, and conditions for
use of any sworn statements and explain how those processes,
requirements, and conditions were reasonable and reliable for verifying
Native Hawaiian descent.
(a) Preparing the voter list for the Ratification Referendum. The
Native Hawaiian community must prepare a list of Native Hawaiians
eligible to vote in the ratification referendum.
(1) The list of Native Hawaiians eligible to vote in the
ratification referendum must:
(i) Be based on reliable proof of Native Hawaiian descent;
(ii) Be made available for public inspection;
(iii) Be compiled in a manner that allows individuals to contest
their exclusion from or inclusion on the list;
(iv) Include adults who demonstrated that they are Native Hawaiians
in accordance with paragraph (b) of this section;
(v) Include adults who demonstrated that they are HHCA Native
Hawaiians in accordance with paragraph (c) of this section;
(vi) Identify voters who are HHCA Native Hawaiians;
(vii) Not include persons who will be younger than 18 years of age
on the last day of the ratification referendum; and
(viii) Not include persons who requested to be removed from the
list.
(2) The community must make reasonable and prudent efforts to
ensure the integrity of its list.
(3) Subject to paragraphs (a)(1) and (2) of this section, the
community may rely on a roll of Native Hawaiians prepared by the State
under State law.
(b) Verifying that a potential voter is a Native Hawaiian. A
potential voter may meet the definition of a Native Hawaiian by:
(1) Enumeration on a roll or other list prepared by the State under
State law, where enumeration is based on documentation that verifies
Native Hawaiian descent;
(2) Meeting the requirements of paragraph (c) of this section;
(3) A sworn statement by the potential voter that he or she:
(i) Is enumerated on a roll or other list prepared by the State
under State law, where enumeration is based on documentation that
verifies Native Hawaiian descent;
(ii) Is identified as Native Hawaiian (or some equivalent term) on
a birth certificate issued by a state or territory;
(iii) Is identified as Native Hawaiian (or some equivalent term) in
a Federal, state, or territorial court order determining ancestry;
(iv) Can provide records documenting current or prior enrollment as
a Native Hawaiian in a Kamehameha Schools program; or
(v) Can provide records documenting generation-by-generation
descent from a Native Hawaiian ancestor;
(4) A sworn statement from a sponsor who meets the requirements of
paragraph (b)(1), (2), or (3) of this section that the potential voter
is Native Hawaiian; or
(5) Other similarly reliable means of establishing generation-by-
generation descent from a Native Hawaiian ancestor.
(c) Verifying that a potential voter is an HHCA Native Hawaiian. A
potential voter may meet the definition of an HHCA Native Hawaiian by:
(1) Records of DHHL, including enumeration on a roll or other list
prepared by DHHL, documenting eligibility under HHCA sec. 201(a)(7);
(2) A sworn statement by the potential voter that he or she:
(i) Is enumerated on a roll or other list prepared by DHHL,
documenting eligibility under HHCA sec. 201(a)(7);
(ii) Is identified as eligible under HHCA sec. 201(a)(7) in
specified State or territorial records;
(iii) Is identified as eligible under HHCA sec. 201(a)(7) in a
Federal, state, or territorial court order; or
(iv) Can provide records documenting eligibility under HHCA sec.
201(a)(7) through generation-by-generation descent from a Native
Hawaiian ancestor or ancestors;
(3) A sworn statement from a sponsor who meets the requirements of
paragraph (c)(1) or (2) of this section that the potential voter is an
HHCA Native Hawaiian; or
(4) Other similarly reliable means of establishing eligibility
under HHCA sec. 201(a)(7).
[[Page 71321]]
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, and political subdivisions of the State, 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 Native Hawaiians to enroll;
(2) May permit Native Hawaiians who are not HHCA 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 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 Native Hawaiians, who cast a ballot in the ratification
referendum;
(4) The number of HHCA Native Hawaiians who cast a vote in favor of
the governing document; and
(5) The total number of HHCA 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 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 Native Hawaiians
votes cast by persons who were not HHCA 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 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 will grant a request if the Secretary determines that
each criterion on the following 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 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 presumption that
this criterion is satisfied; and
(h) The number of votes that HHCA Native Hawaiians cast in favor of
the governing document exceeded half of the total number of ballots
that HHCA 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
[[Page 71322]]
HHCA Native Hawaiians; and Provided Further, that, if fewer than 9,000
HHCA 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 Native Hawaiians cast votes in favor of the governing
document, the Secretary shall apply a 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?
If the Native Hawaiian community seeks to reestablish a formal
government-to-government relationship with the United States, the
request under this part must be submitted to the Secretary, 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 appears to the
Department to be consistent with Sec. Sec. 50.10 and 50.16(g) and (h),
the Department will:
(1) Publish in the Federal Register notice of receipt of the
request and notice of the opportunity for the public, within 60 days
following publication of the Federal Register notice, to submit comment
and evidence on whether the request meets the criteria described in
Sec. 50.16; and
(2) Post on the Department Web site:
(i) The request, including the governing document;
(ii) The name and mailing address of the requester;
(iii) The date of receipt; and
(iv) Notice of the opportunity for the public, within 60 days
following publication of the Federal Register notice, to submit comment
and evidence on whether the request meets the criteria described in
Sec. 50.16.
(b) Within 20 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 in
accordance with paragraphs (a)(1) and (a)(2)(iv) 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 60 days to respond to any comment or evidence that
was timely submitted to the Department in accordance with Sec.
50.30(a)(1) and (a)(2)(iv).
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 Sec. 50.30 or Sec. 50.31 by a maximum of 90 days and post
on the Department Web site the length of and the reasons for the
extension: Provided, that any request for an extension of time is in
writing and sets forth good cause.
The Secretary's Decision
Sec. 50.40 When will the Secretary issue a decision?
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 that the requester's submission is complete and after
receiving all the information described in Sec. Sec. 50.30 and 50.31.
The Secretary may request additional documentation and explanation from
the requester or the public with respect to the material submitted,
including whether the request is consistent with this part. If the
Secretary is unable to act within 120 days, the Secretary will provide
notice to the requester, and include an explanation of the need for
more time and an estimate of when the decision will issue.
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 and is consistent with this part.
Sec. 50.42 When will the Secretary's decision take effect?
The Secretary's decision will take effect 30 days after the
publication of notice 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
formal government-to-government relationship under the United States
Constitution and Federal law as the formal government-to-government
relationship between the United States and a federally-recognized tribe
in the continental United States, in recognition of the existence of
the same inherent sovereign governmental authorities, subject to the
limitation set forth in paragraph (d) of this section.
(b) The Native Hawaiian Governing Entity will be subject to the
plenary authority of Congress to the same extent as are federally-
recognized tribes in the continental United States.
(c) Absent Federal law to the contrary, any member of the Native
Hawaiian Governing Entity presumptively 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 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, tax, or otherwise 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
[[Page 71323]]
(4) The Act of November 11, 1993, secs. 10001-10004, 107 Stat.
1418, 1480-84.
(f) Reestablishment of the formal government-to-government
relationship does 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 applicable Federal law, including case law,
affecting the privileges, immunities, rights, protections,
responsibilities, powers, limitations, obligations, authorities, or
jurisdiction of any federally-recognized tribe in the continental
United States.
Michael L. Connor,
Deputy Secretary.
[FR Doc. 2016-23720 Filed 10-13-16; 8:45 am]
BILLING CODE 4334-63-P
