Hawaiian Sovereignty by Fiat?: Interior Department Considers Granting Quasi-Nation Status through Administrative Rule Despite Bay Mills Indian Community Supreme Court Decision on Tribal Status

by James Ching, Law.com, May 30, 2014

On May 27, 2014, the Obama Administration issued an advance notice of proposed rule-making stating that it “is considering whether to propose an administrative rule that would facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community, to more effectively implement the special political and trust relationship that Congress has established between that community and the United States.” (http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201404&RIN=1090-AB05)

This statement of purpose is an obvious “notice to give notice” and therefore its vague and undetailed wording might be excusable as simply an unexamined draft. However, this advance notice can be made comprehensible by a review of the history of various legislative, judicial, and administrative actions concerning Native Hawaiians’ status as an indigenous people.

Particularly opaque to the uninitiated reader is the reference to “reestablishment” of a “government-to-government” relationship. After all, the last time Hawaiians had their own government was in the 19th century. Moreover, that relationship between an independent Kingdom and the US cannot be reestablished after Hawaii’s 1959 admission to statehood.

However, the meaning of this curt and conclusionary statement may be teased out of the complex history of Hawaiian-US relations. Kamehameha I united the Hawaiian Islands in 1810 and established the Kingdom of Hawaii. For most of the subsequent half-century, Hawaii was subject to political intrigues of the Russians, French, Japanese, Americans, and British because of its strategic mid-Pacific location.

In 1872, the Kamehameha line was followed by the Kalakaua family, whose last representative was Queen Liliuokalani. Under pressure from a group of American businessmen, she abdicated her throne on January 17, 1893.

A provisional republic was declared and the Republic of Hawaii was established on July 4, 1894. On July 7, 1898, the Territory of Hawaii was created, followed by the Hawaiian Organic Act on February 22, 1900 which established a governmental structure.

On March 18, 1959, the Hawaii Admission Act was passed and Hawaii became a state. The federal Office of Native Hawaiian Relations was authorized by Congress in 1995 and 2004 as an Interior Department link with the state of Hawaii.

At the state level, the Office of Hawaiian Affairs was created by the state Constitutional Convention of 1978. OHA was created as a public trust, with a mandate to better the conditions of both Native Hawaiians and the Hawaiian community in general. OHA was to be funded with a pro rata share of revenues from state lands designated as ceded by the predecessor royal government to the state.

OHA was the subject of Rice v. Cayetano, 528 US 495 (2000). The Supreme Court held that the ancestry classification, “Hawaiian,” as provided in Article XII of the Hawaiian State Constitution, is race-based. Therefore, limiting voter eligibility to elect OHA trustees to “Hawaiians” violated the Fifteenth Amendment. Thus, Hawaiians were a race subject to constitutional discrimination laws.

Because Congress has never acted on the creation of a Hawaiian tribe, the distinction between race and tribe is absolutely crucial to the issue of federal recognition of Hawaiians. The crucial distinction between a race and a tribe is pointed out in Michigan v. Bay Mills Indian Community, ___US___, No. 12-515 (05/27/14), issued the same day as the Hawaiian advance notice of proposed rule-making. “Indian tribes are ‘domestic dependent nations’ that exercise ‘inherent sovereign authority.’” As dependents, the tribes are subject to plenary control by Congress. Yet they remain “separate sovereigns pre-existing the Constitution.”

Therefore, if Congress does not restrict a tribe’s sovereign immunity, the tribe is immune from suit. The Bay Mills Indian Community, as a recognized tribe, may claim sovereign immunity against Michigan’s suit over the placement of a casino.

As Hawaiians have never achieved tribal status, they have no sovereign status comparable to the Bay Mills Indian Community. That they have sought tribal status in the past may be connected with Rice. In a September 16, 2013 letter to the President from four members of the US Civil Service Commission, the argument was made that “the efforts to create a [Hawaiian] tribe are in large part an effort to preserve unconstitutional race-based privileges for Native Hawaiians in the wake of Rice.” (http://new.grassrootinstitute.org/wp-content/uploads/2014/05/Akaka-Letter-September-2013-Final.pdf; http://www.washingtontimes.com/news/2013/sep/17/civil-rights-panel-members-urge-rejection-hawaiian/)

Whatever the truth of this assertion, the members of the Civil Service Commission concluded: “Neither Congress nor the President has to power to create an Indian tribe or any other entity with the attributes of sovereignty. Nor do they have the power to reconstitute a tribe or other sovereign entity that has ceased to exist as a polity in the past. Tribes are “recognized,” not created or reconstituted. . . . Real tribes—the kind the Federal government may recognize—are defined by political structure and the maintenance of a separate society, not by bloodline. A mere shared blood quantum among the members of a group is not sufficient for the federal government to recognize an Indian tribe. The regulations governing the recognition of an Indian tribe focus on the cohesiveness of the group and evidence of a functioning polity of long duration.”

The Interior Department, in 2012 and 2013, sought to identify a Hawaiian tribe by administrative rule.

“This rule would establish a process for identifying members of the Native Hawaiian community for the purpose of reorganizing that community as four political sub-divisions or bands, organizing the bands into a confederation, and then acknowledging a government-to-government relationship with that single confederation as a tribe.”
(http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201403&RIN=1090-AB05)

The legal authority cited for the proposed rule seemed to imply that recognition of Hawaiians as a tribe could be accomplished without Congressional involvement. Indeed, the Department’s position was that Congress had already approved tribal status “based upon the intentions of Congress, as evidenced in the Hawaiian Home Lands Recovery Act of 1995 [Public Law 104-42 (1995)], and Public Law 108-199 [(2004)].”

Public Law 108-199 and Public Law 104-42 established ONHR. The Office was to “effectuate effectuate and implement the special legal relationship between the Native Hawaiian people and the United States; . . . continue the process of reconciliation with the Native Hawaiian people; and . . . fully integrate the principle and practice of meaningful, regular, and appropriate consultation with the Native Hawaiian people by assuring timely notification of and prior consultation with the Native Hawaiian people before any Federal agency takes any actions that may have the potential to significantly affect Native Hawaiian resources, rights, or lands.”

There is a formidable Constitutional gap in the logic of this proposal for tribalization. Congress must be involved in the recognition of tribal status and it is simply too big a leap from declaration of specific Hawaiian interests vested in an Executive agency to a declaration of tribal status by Congress. The passive approval of a set of modest goals for a modest executive Office is not a direct and specific approval of tribal status for Hawaiians.

A different approach was bruited in the Akaka Bill, HR 2314, which never passed into law. The Akaka Bill, the Native Hawaiian Government Reorganization Act of 2009, HR 2314, was intended to create a separate, race-based government specifically for Native Hawaiians.  The 2010 version of the Akaka Bill states that “despite the overthrow of the . . . Kingdom of Hawaii, Native Hawaiians have continued to maintain their separate identity as a single distinctly native political community through cultural, social, and political institutions . . ."  Therefore, “there is clear continuity between the aboriginal, indigenous, native people of the Kingdom of Hawaii and their successors, the Native Hawaiian people today . . ."  (http://naturalresources.house.gov/uploadedfiles/abercrombie_ans022210.pdf)

The Akaka Bill reflects a new concept of revived nationhood for Native Hawaiians based on the Kingdom of Hawaii. This is taken up in the present advance notice of proposed rule-making. The advance notice abandons reference to the tribalization of Hawaiians. This seems advisable in light of the lack of Congressional enthusiasm for the Akaka Bill, the failure of the 2012-2013 administrative proposals, and the current deadlock in Congress.

The advance notice clearly contemplates that the 19th century sovereignty of the Kingdom of Hawaii, although extinguished by statehood, was a “government-to-government” relationship between Hawaiians and the US which may be reestablished.

The citations to the notice add color to this theory of revived nationalism. Using Public Laws 104-42 and 108-199, the same references made in the first Interior Department proposal, the ONHR’s duties to effectuate and implement the special legal relationship between the Native Hawaiian people and the United States. continue the process of reconciliation with the Native Hawaiian people; and fully integrate the principle and practice of meaningful, regular, and appropriate consultation with the Native Hawaiian people are meant to be the authority for Interior Department action “reestablishing” a “government-to-government” status.

The best argument for the proposal, then, is that because the ONHR was created to liaise with the Hawaiian people, Congress intended that ONHR and the Interior Department to deal with Hawaiians as a sovereign nation even if it is conceded that Hawaiians were not and never were, a tribe.

However, this requires that the language that ONHR “effectuate and implement” relations between the two “nations” be interpreted as delegation of Congressional authority to conduct foreign relations to a small Executive agency. In the present political climate, this could hardly be the case. On a more theoretical level, such cross-branch delegation, especially with such unspecific language, would not withstand a Constitutional challenge.

The new approach to rule-making in the advance notice appears futile because Congress and the President exercise coordinate power over foreign relations, the very “government-to-government” relations in question. One need go no further than to review the furor over Presidential declarations of war without Congressional approval to see that Congress could legitimately block this Interior Department approach. (See War Powers Act, Public Law 93-148 (1973))

Another facet of the prior sovereignty approach is based on Morton v. Mancari, 417 US 535 (1974). In that case, a Bureau of Indian Affairs hiring preference for Native Americans was upheld as being political and not racial in nature.“ Benefits were accorded to Native Americans “not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities.” This “special relationship” did not trigger strict scrutiny of the preference.

Particularly important is that Congress has legislated benefits for Native Americans without requiring trial membership. If the “special relationship” in Morton does not turn on tribal recognition, then Rice is not generally viable, but rather limited to voting rights and the paramount importance of those rights to a democracy.

Unfortunately, this argument reflects the same rule of Congressional involvement as the Bay Mills Indian Community case. The Morton theory as applied to Native Hawaiian revived nationality is that Congress has specifically intervened in some benefit area, in this case either tribal status or conferring the benefit of “government-to-government” status to Hawaiians, which obviates the advance notice’s approach.  Both Congressional inaction on the tribal issue and the Akaka Bill indicate that this is not the case.

Another example of Congressional nonfeasance is the Apology Resolution, Joint Resolution 19, Public Law 103-150 (1993), issued on the 100th anniversary of the overthrow of Queen Liliuokalani. Although the Resolution reviews the historical facts of the overthrow, it does nothing more than to offer “an apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawaii” and contains nothing pertaining to sovereign revival. The Morton argument must therefore rely on the rather weak argument of delegation of Congressional power to ONHR discussed above.

In summary, it is clear that both serious Constitutional separation of power questions hinder the establishment of Native Hawaiians as a tribe and that the situation has only become worse because of the current Congressional deadlock. Because of the latter, no recognition in a Constitutional fashion may even be broached in Congress although this is the only legal route to tribal recognition. Abandoning the tribal approach altogether seems both legally and practically prudent.

The new direction in the advance notice is even worse, as there is no Constitutional theory which endorses an executive agency alone to conduct foreign relations with existing (and for that matter, former) sovereign nations and no specific legislation which endorses this approach for the Kingdom of Hawaii.

The conclusion is inescapable that the advance notice is not a serious proposal. Even assuming that the advance notice is just a draft, the question becomes “A draft of what?” Is it a “place-holder” meant to be a new assertion that an old problem is still an object of concern or an assurance to its stake-holders? In any case, one could wish that the Interior Department had a specific, practical, and Constitutional proposal backing up the language in the advance notice which hasn’t yet been revealed.

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James Ching is a former Supervising Deputy Attorney General, California Department of Justice and Chief Counsel, California Board of Prison Terms. He specializes in criminal, constitutional and labor law and is the author of numerous published articles on these subjects. He has argued more than 500 cases in various appellate courts, including three in the US Supreme Court.