From: Fisher, Nina  (Rep Mark Takai's Honolulu office manager, formerly Hanabusa office manager)

Date: Tue, Sep 29, 2015 at 10:05 AM

Subject: FW: Memo on DOI Proposed Rules Re: Native Hawaiian Governing Entity

Sent: Tuesday, September 29, 2015 3:35 PM

Subject: Memo on DOI Proposed Rules Re: Native Hawaiian Governing Entity

Below and attached you find a memorandum on the Department of Interior’s proposed rules on the Reestablishment of a government-to-government relationship with a Native Hawaiian governing entity. The memo discusses what the DOI is proposing in regards to a reestablishment; but it does not spell out DOI’s responses to submitted comments on the Advanced Rulemaking Notice, nor does it go into detail of the history of the U.S. relationship with the Native Hawaiian community. For more information on the comment responses and history, please refer to the Federal Register copy of the rule.

MEMORANDUM

DT:     9/29/2015

RE:     Summary of DOI Proposed Rule re: Native Hawaiian Governing Entity

PURPOSE OF MEMO:

To provide background on a proposed rule released by the Department of Interior (DOI) on September 29, 2015 that establishes an administrative procedure and criteria for the U.S. to reestablish a formal government-to-government relationship with a Native Hawaiian Governing Entity.

BACKGROUND:

On September 29, 2015, the DOI released a proposed rule that creates an administrative procedure and criteria that the Secretary of the Interior would apply if the Native Hawaiian community forms a unified government that then seeks a formal government-to-government relationship with the United States. Under the new proposal, the Native Hawaiian community – not the Federal government—would decide whether to reorganize a Native Hawaiian government, what form that government would take, and whether it would seek a government-to-government relationship.

The proposed rule accomplishes four key things. First, it lays out the legal arguments for Native Hawaiian (NH) community’s right to a government-to-government relationship under existing law. Second, it outlines requirements a NH entity must meet before applying for a government-to-government relationship with the U.S.  Third, it differentiates rights of a Native Hawaiian governing entity and its members from those of federal recognized tribes. Fourth, the proposed rule reiterates that the reestablishment of a government-to-government relationship will not affect existing federal and state laws and rights.

1. The Native Hawaiian community has existing rights to a Government-to-Government Relationship.

The proposed rule sets out the legal argument that Congress has already granted the Native Hawaiian community rights of a distinct indigenous people through numerous laws, policies, and treaties enacted before and after the overthrow of the Hawaiian monarchy. Because the acknowledgment of the Native Hawaiian people’s unique standing exists in law, the Administration has the power to establish an administrative procedure and criteria for reestablishing a government to government relationship. This proposed rule sets out a draft of administrative rules, and clarifies recognition of a NH governing entity will be different than normal proceedings for American Indian tribal recognition.

2. A Native Hawaiian Governing Entity must meet certain requirements to gain a Government-to-Government Relationship.

The proposed rule sets out certain requirements for a Native Hawaiian governing entity to meet before it may be eligible for a government-to-government relationship with the U.S.  These requirements include:

• In regards to membership, the NH government must (a) include Hawaiian Homes Commission Act (HHCA)-eligible NHs, (b) exclude Non-NHs, and (c) establish membership as voluntary; and may include NHs who are not HHCA-eligible NHs, or some defined subset of that group that is not contrary to Federal law. This means that NHs with less than 50% NH ancestry, the current threshold for HHCA-eligibility, can be excluded from membership to the NH government.
• In regards to members’ rights, a NH government must include and maintain the unique status and separate rights of HHCA-eligible Native Hawaiians.
• A NH government must have a governing body that is elected periodically and have a separation of legislative and judiciary bodies.
• DOI will only accept the results of a referendum affirming a NH government and governing document if (a) at least 50,000 NHs vote, of which at least 15,000 HHCA-eligible NHs vote, and (b) at least 30,000 NHs vote in favor of the governing entity, of which at least 9,000 HHCA-eligible NHs vote in favor. The main take-away from this requirement is that ratification of a referendum establishing a NH government and governing document must have separate vote tallies for HHCA-eligible NH voters and all other NH voters.
• A governing document must also protect and preserve the liberties, rights, and privileges of all persons affected by the NH government’s exercise of government powers in accordance with the Indian Civil Rights Act.

3. A Native Hawaiian Governing Entity will not have same rights and benefits as federally recognized tribes, unless an Act of Congress expressly provides otherwise.

The proposed rule maintains the status quo of programs and benefits to NHs and Tribes. If a government-to-government relationship is established, NHs will not automatically gain access to rights and benefits currently afforded to only Indian tribes and their members. Native Hawaiians will only have rights to programs and benefits currently specified in the law as being for, or including NHs. Eligibility for federal Indian programs, services, and benefits may only be extended to NHs through an act of Congress.

4. In general, reestablishment of a government-to-government relationship will not affect existing federal and state laws and rights.

First, under current definitions in the Indian Gaming Regulatory Act, a NH governing entity could not qualify for the gaming rights set out by IGRA.  Second, the reestablishment of a government-to-government relationship will not affect title, jurisdiction, or status of Federal lands and property in Hawaii with exception of Kahoolawe, which will be transferred to a NH government as directed by law. Third, although the proposed rule does not explicitly discuss this, given the assumption that NH eligibility would only be for those benefits already set out in law, a NH government would not be eligible for trust or “reservation” lands. The proposed rule does not, however, discuss or allude to whether a NH governing entity has the right to sovereign immunity.

Comment Period

The DOI is allowing for public comments until 90 days after October 1st. DOI explicitly asked for comments on certain topics, namely:

• NH governing entity’s eligibility under the Indian Gaming Regulatory Act;
• How many affirmative votes are needed for a governing document, in order for the U.S. to recognize a NH governing entity;
• Who is eligible for membership;
• Whether a NH government would have to meet the same requirements of Indian tribes to be federally recognized (“Part 83”); and
• Whether references to “tribes” and “Indians” would encompass the NH governing entity and its members.

Two teleconferences with the public will be held on October 26th and November 7th. The DOI will also talk with select groups and organizations via closed teleconferences on October 27th and November 4th.

There is no indication of when the Administration will finalize the rules.

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