90-day Comment Period on Interior Department Proposal – Deadline 30 Dec 2015

Update 10/4/15.

From the U.S. Department of the Interior

Notice of Proposed Rulemaking

The U.S. Department of the Interior is proposing to create 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 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 with the United States.

The proposal, which takes the form of a Notice of Proposed Rulemaking (NPRM), builds on more than 150 Federal statutes that Congress has enacted over the last century to recognize and implement the special political and trust relationship between the United States and the Native Hawaiian community.  The NPRM comes on the heels of a robust and transparent public comment period as part of an Advance Notice of Proposed Rulemaking (ANPRM) process that began last year and included public meetings.  More than 5,000 members of the public submitted written comments to the ANPRM, and they overwhelmingly favored creating a pathway for re-establishing a formal government-to-government relationship.

Members of the public are encouraged to read the proposal and provide comments in writing by email to part50@doi.gov, on www.regulations.gov (docket no. DOI-2015-0005), or by U.S. mail/hand delivery to the Office of the Secretary, Department of the Interior, Room 7228, 1849 C St. NW, Washington, DC 20240.  Comments must be received on or before December 30, 2015. The public is also encouraged to participate in the scheduled teleconferences on the proposed rule.

NPRM Background Documents and Links:
•    NPRM
•    Provide Your Comments On-Line
•    Press Release
•    Frequently Asked Questions and Answers

***
Department of the Interior Proposed Rule. To view the 73-page document, use the scroll bar on the right.

***

The following excerpts are from Dan Nakaso’s “Feds yield to native Hawaiians” in the Star-Advertiser, 30 Sep. 2015:

Rules proposed by the government would let the indigenous people decide on sovereignty

Proposed rules announced Tuesday by the U.S. Department of the Interior emphasize that Native Hawaiians — not the federal government — would decide how to reorganize a Native Hawaiian government and determine any relationship it would have with the United States.

The proposal follows repeated failed attempts to pass the so-called Akaka Bill, which would have established a path to federal recognition for a Native Hawaiian government. While the news was widely embraced, some Native Hawaiians remained steadfast Tuesday in their opposition to federal government involvement in the process — interpreting the announcement as a disregard of the wishes of Native Hawaiians.

In making Tuesday’s announcement the Interior Department opened a 90-day comment period.

***

The following, “Q&A: Native Hawaiian nation-building,” is by Dan Nakaso, Star-Advertiser, 30 Sep. 2015:

Question: What is being proposed?

Answer: The U.S. Interior Department has proposed creating a procedure that would facilitate the re-establishment of a formal government-to-government relationship with a reorganized Native Hawaiian government without involving the federal government in the Native Hawaiian community’s nation-building process.

Q: What led to the proposal?

A: In June 2014 the Interior Department issued an Advance Notice of Proposed Rulemaking that resulted in 5,164 written comments from Native Hawaiian organizations, national organizations, Native Hawaiian and non-Native Hawaiian individuals, academics, student organizations, nongovernmental organizations, the Hawaiian Affairs Caucus of the state Legislature, legislators, Hawaiian civic clubs and their members, alii trusts, royal orders, religious orders, a federally recognized Indian tribe, intertribal organizations, Alaska Native Corps. and congressional members, including the Hawaii delegation and former U.S. Sen. Daniel Akaka. The department said that more than half of the written comments were identical postcards submitted in support of re-establishing a government-to-government relationship through federal rule-making.

Q: Would a re-established Native Hawaiian government allow gambling in Hawaii under the Indian Gaming Regulatory Act?

A: The Department of the Interior believes a new Native Hawaiian government would not meet the definition of an “Indian tribe” and thus would not be permitted to allow gambling in Hawaii.

Q: How would a new Native Hawaiian government be organized?

A: The proposed rule would authorize re-establishing a formal government-to-government relationship with a single representative sovereign Native Hawaiian government. But the Interior Department said that government could have a centralized structure or a decentralized structure with political subdivisions defined by island, geographic districts or historic circumstances, or organized in an otherwise “fair and reasonable manner.”

Q: How would the proposal affect Hawaiian homesteaders, if at all?

A: The Hawaiian Homes Commission, Kapolei Community Development Corp.’s board of directors and several Native Hawaiian beneficiaries raised concerns that Hawaiian homelands would be “subsumed” by a Native Hawaiian government. The Interior Department said the proposed rule would not diminish any right, protection or benefit granted to Native Hawaiians by the Hawaiian Homes Commission Act. Further, the department said, a reorganized Native Hawaiian government must protect and preserve Native Hawaiians’ rights, protections and benefits under the Hawaiian Homes Commission Act and the Hawaiian Home Lands Recovery Act.

Q: Aren’t there concerns that re-establishing a Native Hawaiian government would be tantamount to creating a race-based government?

A: According to the Interior Department, four U.S. senators submitted comments generally opposing the rule-making on constitutional grounds and asserted that the executive authority used to federally acknowledge tribes on the mainland does not extend to Native Hawaiians. Another senator questioned the interior secretary’s constitutional authority to promulgate rules and argued that administrative action would be race-based and thus violate the Constitution’s guarantee of equal protection. But the Interior Department said that the U.S. Supreme Court has made it clear that legislation affecting Native Americans does not generally constitute race-based discrimination.

Q: Would the roll being used by the Native Hawaiian Roll Commission be used to determine who could vote for a new Native Hawaiian government?

A: The Interior Department permits use of the roll but does not require it. It believes that the roll may be one of several sources that could provide sufficient evidence that an individual descends from “Hawaii’s aboriginal people.” Among other things, the Interior Department said a list of potential voters should exclude all non-U.S. citizens and those under the age of 18 — but must include all U.S. citizens who meet the provisions of Hawaii’s Department of Hawaiian Home Lands.

Submit a comment

The U.S. Department of the Interior’s Notice of Proposed Rulemaking can be found at doi.gov/ohr. The public has 90 days to comment by:

  • Sending an email to part50@doi.gov. Include the number 1090-AB05 in the subject line.
  • Writing or hand-delivering comments to Office of the Secretary, Department of the Interior, Room 7228, 1849 C St. NW, Washington, DC 20240.

Comments will be posted at regulations.gov.


Update 10/4/15: Excerpts from Richard Borreca’s “There’s nothing certain about Hawaiian sovereignty,” Star-Advertiser, 10/4/15:

Here in Hawaii, a multi-step process is in place to allow Native Hawaiians to vote first for delegates to a state convention to come up with a proposed governmental structure, a new Hawaiian government.

Then the Native Hawaiian people would vote for or against that proposed government.

The catch is that the federal government already is proposing how that second round of voting would take place.

For instance, the rules, powers, holdings and those served by the existing Hawaiian Home Commission Act (HHCA) could not be touched. The new Hawaiian government, the federal government said, cannot “diminish any right, protection, or benefit granted to Native Hawaiians by the HHCA. The HHCA would be preserved regardless of whether a Native Hawaiian government is reorganized, regardless of whether it submits a request to the Secretary, and regardless of whether any such request is granted.”

So a new Hawaiian government will not be snagging any valuable Hawaiian Home Land acreage.

If a new government is formed, however, one thing it would get is Kahoolawe. According to state law and noted in the proposal federal law, there is a line explaining that when the federal government returned jurisdiction of the former military target island to state control, it would eventually belong to a “sovereign Native Hawaiian entity.”

The federal government says there must be at least 50,000 yes votes among the Native Hawaiian voters and at least 15,000 from the 50 percent Hawaiian group.

The federal government says this is to ensure broad-based community support.

Read the full article on the Star-Advertiser site.

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