by Andrew Walden
In Hawaii all eyes are on the US Department of Interior Proposed "Procedures for Reestablishing a Formal Government-to-Government Relationship with the Native Hawaiian Community."
The Feds solemnly promise, "The proposed rule recognizes HHCA beneficiaries' unique status under Federal law and protects that status."
But another DoI Rule "RIN 1076–AE93 Secretarial Election Procedures"--finalized October 19, 2015, but unnoticed in Hawaii--makes those promises worthless. RIN 1076–AE93 allows Tribal Trustees to rewrite the Tribe's Governing Documents without Federal oversight and even without a Tribal membership vote.
Under US Indian Law, certain types of Tribal elections had required oversight by the Bureau of Indian Affairs to ensure fairness and honesty. The new rule eliminates the requirement for these so-called "Secretarial Elections."
The Final Rule states:
“Once the requirement for Secretarial approval is removed ... future elections will be purely tribal elections, governed and run by the tribe rather than BIA. Additionally, without a requirement for Secretarial approval, the (tribal) constitution will no longer be governed by the other election-related requirements of the IRA, such as the minimum number of tribal voters to make an election effective. Such matters will be governed by tribal policy decisions rather than Federal ones.”
In fact no election would be required at all if the Tribal Governing Documents say so:
"The 1990 amendments to the Indian Reorganization Act (IRA)...(allow) the tribal governing body, rather than 'a majority vote of the adult Indians living on the reservation,' to ratify the charter. ...a Secretarial election is required to amend a charter only if the charter itself states that a Secretarial election is required...."
Tribal Trustees could simply vote to change the DHHL blood quantum from 50% to 25% or even 1% and thereby seize lands that are now reserved for Hawaiian Homesteaders under the 1921 Hawaiian Homes Commission Act and the Hawaii Admission Act.
Even if the 'Aha comes up with Governing Documents full of flowery language about protecting the rights of Hawaiian Homes beneficiaries, that language could be stripped out later--without a vote of the Tribal membership.
Thanks to the DoI Final Rule "RIN 1076–AE93 Secretarial Election Procedures"--approved just two weeks ago--this would all be perfectly legal under US law.
LINK: RIN 1076–AE93 Secretarial Election Procedures
ICT: Washburn Pushes Self-Determination Again with Final Rule on Secretarial Elections