To date, the United States Congress has enacted more than 150 statutes that recognize and address the specific needs of Native Hawaiians, including:
- the Native Hawaiian Study Commission Act
- the Hawaiian Homes Commission Act
- the Native Hawaiian Education Act
- the Native Hawaiian Health Care Act
Still, the Native Hawaiian community has not had a formal governing entity since the overthrow of the Kingdom of Hawaii in 1893.
In 1993, Congress enacted the Apology Resolution to acknowledge the “illegal overthrow of the Kingdom of Hawaii on January 17, 1893” and “the historical significance of this event which resulted in the suppression of the inherent sovereignty of the Native Hawaiian people.”
In 2000, the Department of the Interior and the Department of Justice jointly issued a report on the reconciliation process (From Mauka to Makai: The River of Justice Must Flow Freely) stating that “reconciliation is an evolving and continuing process” and should result in “congressional confirmation of a political, government-to-government relationship between Native Hawaiians and the Federal Government pursuant to Congress’ plenary authority over Indian Affairs.”
In 2013, Secretary of the Interior, Sally Jewell, visited Hawaii. “I learned first-hand about Hawaii’s unique history and the importance of the special trust relationship that exists between the Federal government and the Native Hawaiian community,” said Jewell. “Through the Advanced Notice of Proposed Rule Making, the Department is responding to requests from not only the Native Hawaiian community but also state and local leaders and interested parties who recognize that we need to begin a conversation of diverse voices to help determine the best path forward for honoring the trust relationship that Congress has created specifically to benefit Native Hawaiians.”
The Advanced Notice of Proposed Rulemaking (ANPRM), posted June 19, 2014 on the Federal Register, outlines the following five threshold questions that will be the subject of an extensive series of public meetings and consultations in Hawaii and Indian Country to solicit comments that could help determine whether the Department develops a formal, administrative procedure for reestablishing an official government-to-government relationship with the Native Hawaiian community, and if so, what that procedure should be:
- Should the Secretary propose an administrative rule that would facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community?
- What role, if any, should the Department of the Interior-exercising the authorities described in
– 25 U.S.C. 2 (duties of the Commissioner of Indian Affairs),
– 25 U.S.C. 9 (authority of the President to prescribe regulations in Indian affairs),
– 43 U.S.C. 1457 (duties of the Secretary of the Interior),
and other statutes-play in facilitating the reestablishment of a government-to-government relationship with the Native Hawaiian community?
- Should there be a reorganization of a Native Hawaiian government in order to reestablish and maintain a government-to-government relationship between the Native Hawaiian community and the United States?
- If a Native Hawaiian government is reorganized, under what conditions should the Secretary federally acknowledge it and thus reestablish a government-to- government relationship?
- What features, including any within 25 CFR parts 61, 62, 81, and 83 or other regulations, should the Secretary incorporate in a proposed administrative rule addressing potential reorganization or acknowledgment of a Native Hawaiian government?
In addition to the five (5) threshold questions listed above, the Department is seeking comments on the fourteen (14) additional questions listed below (and at the end of the ANPRM):
- If the Secretary were to propose a rule to assist in reorganizing a Native Hawaiian government, what should be the criteria for persons to be included on the roll of those eligible to participate in reorganizing this government? (This roll would determine which persons are eligible to participate in reorganizing a Native Hawaiian government; it would not determine which persons ultimately could become members or citizens of a reorganized sovereign Native Hawaiian government.)
- To be included on the roll, what should constitute adequate evidence or verification
that a person has Native Hawaiian ancestry?
- To be included on the roll, what should constitute adequate evidence or verification
that a person has a significant cultural, social, or civic connection to the Native
- To be included on the roll, what significance, if any, should be given to the fact that a person is potentially eligible under the Hawaiian Homes Commission Act (HHCA), Act of July 9, 1921, ch. 42, 42 Stat. 108, as amended? To the extent that this is a relevant criterion, what process should be used to identify persons who are potentially eligible under the HHCA, as amended?
- If the Secretary were to propose a rule to assist in reorganizing a Native Hawaiian government, what should be the process for preparing a roll of persons who would be eligible to participate in reorganizing a Native Hawaiian government?
- What role, if any, should the Secretary play in establishing, operating, or approving the process for preparing such a roll?
- What role, if any, should be played by the Native Hawaiian Roll Commission established under Hawaii state law to prepare the Kanaiolowalu registry?
- If the Secretary were to propose a rule to assist in reorganizing a Native Hawaiian government, what should be the process for drafting a constitution or other governing document for a Native Hawaiian government, and what should be the Secretary’s role in providing such assistance?
- How should the drafters of a constitution or other governing document be selected?
- If the Secretary were to propose a rule to assist in reorganizing a Native Hawaiian government, what should be the process for ratifying and approving a constitution or other governing document for a Native Hawaiian government?
- Should there be a minimum turnout requirement for any referendum to ratify a Native Hawaiian constitution or other governing document?
- In addition to being ratified by a majority of all qualified Native Hawaiians who participate in a ratification referendum, should a Native Hawaiian constitution or other governing document also have to be ratified by a majority of all qualified Native Hawaiians who participate in the ratification referendum and are potentially eligible under the HHCA, as amended?
- Should the Secretary have the responsibility to approve or disapprove a Native Hawaiian constitution or other governing document? If so, what factors, if any, other than consistency with Federal law, should be considered? For example, should the Secretary’s approval depend on substantive issues (e.g., the constitution’s safeguards for civil rights and liberties), procedural issues (e.g., lost or destroyed ballots, wrongful denial of ballots, etc.), or both?
- Should reorganization of a Native Hawaiian government occur through a process established by the Native Hawaiian community and facilitated by the State of Hawaii, rather than through a Federal process? This non-Federal process would have to be consistent with Federal law and satisfy conditions established by the Secretary as prerequisites to Federal acknowledgment. We seek views on each of the following as a potential condition for Federal acknowledgment of a Native Hawaiian government that has already been reorganized through a community- established, State-facilitated process:
– Acknowledgment by the State of Hawaii.
– A Native Hawaiian constitution (or other governing document) that-
– – Safeguards the civil rights and liberties of Natives and non-Natives alike, as guaranteed in the Indian Civil Rights Act of 1968, as amended, 25 u.s.c. 1301-1304;
– – Has been ratified by a majority vote of “qualified Native Hawaiians,” as defined in Haw. Rev. Stat. 10H-3(a) (2013); and
– – Has also (and perhaps simultaneously) been ratified by a majority vote of “qualified Native Hawaiians” who are potentially eligible under the HHCA, as amended.
– Any other criterion that should be included as a condition for Federal acknowledgment of an already reorganized Native Hawaiian government.
Criteria for Inclusion on the Roll ofPersons Eligible to Participate in the Reorganization
The Processfor Preparing a Roll ofPersons Eligible to Participate in the Reorganization
Drafting a Constitution for a Native Hawaiian Government
Ratifying and Approving a Constitution for a Native Hawaiian Government
Federal Acknowledgment of an Already Reorganized Native Hawaiian Government
Comments must be submitted on or before August 19, 2014.
Your comments can be submitted online through the Federal eRulemaking Portal: www.Regulations.gov. (Please use Regulation Identifier Number 1080-AB05 in your message.)
Or you can submit via U.S. mail to:
Office of the Secretary
Department of the Interior, Room 7329
1849 C Street NW
Washington, DC 20240
To be most useful, and most likely to inform decisions on the content of a potential administrative rule, comments should:
• Be specific;
• Be substantive;
• Explain the reasoning behind the comments, and
• Address the issues outlined in the ANPRM
In addition to the public meetings throughout the State of Hawaii, the following meetings will be held July 29 through August 7 in the continental United States:
- Tuesday, July 29 – Minnesota – 9:00 a.m. to 12:00 p.m.
Mystic Lake Casino Hotel, Prior Lake, MN
- Wednesday, July 30 – South Dakota – 1:00 p.m. to 4:00 p.m.
Rushmore Civic Center, Rapid City, SD
- Friday, August 1 – Washington – 9:00 a.m. to 12:00 p.m.
Tulalip Resort, Seattle, WA
- Tuesday, August 5 – Arizona – 9:00 a.m. to 12:00 p.m.
Talking Stick Resort, Scottsdale, AZ
- Thursday, August 7 – Connecticut – 9:00 a.m. to 12:00 p.m.
Mohegan Sun, Uncasville, CT
As set forth in the ANPRM, the Department welcomes comments from leaders and members of the Native Hawaiian community and federally recognized Indian tribes, as well as the State of Hawaii, its agencies, other state agencies, and the general public. Attendance at the above-listed consultation meetings is not required for public comment.
For further information contact:
John Strylowski, Office of the Secretary
Phone: (202) 208-3071 (not a toll-free number)