Procedures for Reestablishing a Formal Government-to-Government Relationship With the Native Hawaiian Community, 71278-71323 [2016-23720]

Download as PDF 71278 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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: sradovich on DSK3GMQ082PROD with RULES4 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 (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. PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 ‘‘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 E:\FR\FM\14OCR4.SGM 14OCR4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 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. VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 http://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 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 71279 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 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71280 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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. PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 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 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 71281 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 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71282 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 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 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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; VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 71283 ‘‘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. E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71284 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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, VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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), http:// 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 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 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 http://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 http://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 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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), VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 (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: http://uscode.house.gov/ editorialreclassification/t25/index.html (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 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 71285 ‘‘[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). E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71286 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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. VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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.’’ PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 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 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 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 E:\FR\FM\14OCR4.SGM 14OCR4 71288 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 sradovich on DSK3GMQ082PROD with RULES4 * 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 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 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 http://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 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 71289 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 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71290 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 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 E:\FR\FM\14OCR4.SGM 14OCR4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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. sradovich on DSK3GMQ082PROD with RULES4 (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)); VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 • 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 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 71291 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 E:\FR\FM\14OCR4.SGM 14OCR4 71292 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 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. E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 http:// 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. PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 71293 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 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71294 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 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 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 71295 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 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71296 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 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, E:\FR\FM\14OCR4.SGM 14OCR4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 71297 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 E:\FR\FM\14OCR4.SGM 14OCR4 71298 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 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. VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 (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. PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 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 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 71299 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 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71300 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 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 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 71301 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 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71302 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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. PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 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 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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, PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 71303 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. E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71304 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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. VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 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 E:\FR\FM\14OCR4.SGM 14OCR4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 71305 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 E:\FR\FM\14OCR4.SGM 14OCR4 71306 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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. sradovich on DSK3GMQ082PROD with RULES4 (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). VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 (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 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 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 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 71307 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. E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71308 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 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 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 71309 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 E:\FR\FM\14OCR4.SGM 14OCR4 71310 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 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 E:\FR\FM\14OCR4.SGM 14OCR4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 71311 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 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71312 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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. PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 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 E:\FR\FM\14OCR4.SGM 14OCR4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 71313 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 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71314 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 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 E:\FR\FM\14OCR4.SGM 14OCR4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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. sradovich on DSK3GMQ082PROD with RULES4 (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. VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 (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 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 71315 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 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71316 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 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’’). E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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.’’ VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 71317 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 E:\FR\FM\14OCR4.SGM 14OCR4 71318 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 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? E:\FR\FM\14OCR4.SGM 14OCR4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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. sradovich on DSK3GMQ082PROD with RULES4 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: VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 (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 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 71319 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 E:\FR\FM\14OCR4.SGM 14OCR4 71320 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations (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. sradovich on DSK3GMQ082PROD with RULES4 § 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. VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 § 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: PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 (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). E:\FR\FM\14OCR4.SGM 14OCR4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations § 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. sradovich on DSK3GMQ082PROD with RULES4 § 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 (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 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 71321 (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 E:\FR\FM\14OCR4.SGM 14OCR4 71322 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 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 sradovich on DSK3GMQ082PROD with RULES4 § 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 VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 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 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 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 E:\FR\FM\14OCR4.SGM 14OCR4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES4 (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. VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 (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 PO 00000 Frm 00047 Fmt 4701 Sfmt 9990 71323 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 E:\FR\FM\14OCR4.SGM 14OCR4

Agencies

[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.

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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 http://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), http://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 http://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 http://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: http://uscode.house.gov/editorialreclassification/t25/index.html (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 http://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 http://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