Feds Propose Rule for Native Hawaiian Government-to-Government Relationship

Hawaii flag. Photo by Wendy Osher.

By Wendy Osher

The Department of the Interior today released a Notice of Proposed Rulemaking regarding “Procedures for Reestablishing a Government-to-Government Relationship with the Native Hawaiian Community.”

The Proposed Rule provides a framework for a Native Hawaiian governing entity to enter into a government-to-government relationship with the United States.

It also expressly states the trust relationship that the Federal government has with the Native Hawaiian people.

The public now has 90 days to comment on the proposed rule.

Public comments will be accepted by: visiting the Department of the Interior online and accessing Docket ID DOI-2015-0005; through email at [email protected] (include the number 1090-AB05 in the subject line); or through U.S. mail to: Office of the Secretary, Department of the Interior, Room 7228, 1849 C Street NW, Washington, D.C. 20240.

The rulemaking process began in July 2014 when the Department of the Interior initiated 25 public meetings held across Hawaiʻi and Indian Country.

The DOI states that more than 5,000 comments were submitted and more than 40 hours of public testimony was received during the process.

Department officials say the action is in response to requests from the native Hawaiian community, Hawaiʻi’s congressional delegation and state leaders.

“The purpose of such a relationship would be to more effectively implement the special political and trust relationship that currently exists between the federal government and the native Hawaiian community,” an earlier announcement said.

After review, Department officials say they found “overwhelming support” to creating a pathway for reestablishing a formal government-to-government relationship, as the “next step in the reconciliation process set in motion by Federal law (the Apology Resolution) over 20 years ago.”

One hundred years after the overthrow of the Hawaiian Kingdom on Jan. 17, 1893, the US Congress enacted the Apology Resolution, offering an apology to native Hawaiians for the role the US played in the overthrow.

In 2000, the Department of the Interior and the Department of Justice jointly issued a report on the reconciliation process, and identified self-determination for native Hawaiians under federal law as their leading recommendation.

According to information released by the Department of the Interior, “The Department believes that reestablishing such a relationship would allow the United States to more effectively implement the special political and trust relationship that Congress has long recognized with the Native Hawaiian community.”

The DOI states that benefits of a formal relationship include the following:

• can significantly enhance a Native community’s ability to exercise self-government by giving a Native government special status under Federal law.
• if the Native Hawaiian government seeks and obtains a formal relationship with the United States, Federal courts would then accord greater weight to the laws enacted by that Native Hawaiian government and the decisions of the Native Hawaiian courts. That in turn will facilitate and support self-governance by enabling the community to exercise powers of self-government over many issues directly impacting community members.
• A government-to-government relationship also would provide a Native Hawaiian government with additional abilities to protect its members’ interests by filing suit in Federal court.
• Once a government-to-government relationship exists, Federal agencies would treat the Native Hawaiian government as the legal representative of the community.

Members of Hawaiʻi’s congressional delegation responded to the news today by releasing the following statements.

US Senator Mazie Hirono said, “The Native Hawaiian community’s ongoing work toward self-determination takes a significant step forward today, and I applaud the Obama administration for its commitment to this effort.” She continued saying, “Many in Hawaiʻi have persevered for decades to reach this point. I think of those with whom I’ve worked tirelessly, both as Hawaiʻi’s lieutenant governor and during my time in Congress, to achieve recognition for Native Hawaiians that is on par with the relationships the Federal government has established with Alaska Natives and Native Americans. I will continue to call for forward momentum on this issue until that final step is achieved.”

Fellow US Senator, Brian Schatz also commented saying, “Native Hawaiians have the right to reorganize a government that they determine is best for them.  With today’s publication of proposed rules from the Department of the Interior, I urge Native Hawaiians and other interested individuals to stay engaged and to contribute their comments and concerns as the process moves forward. I will continue working with the Department of the Interior, my colleagues in the Hawaiʻi congressional delegation, and the Native Hawaiian community to review the draft rules.”

Congresswoman Tulsi Gabbard noted that many indigenous groups in the US have the right of self-determination.  She said, “today’s announcement acknowledges that that right also belongs to the Native Hawaiian people, one of the largest native communities in the country.”

Gabbard said, “These rules incorporate over 5,000 public comments submitted to the Department of Interior, and should they be adopted, the Native Hawaiian community will have the option to re-establish a unified government and self-determine their future relationship with the federal government. I encourage all interested parties to submit their comments to DOI during the 90-day public review period to ensure a collaborative final ruling.”

Congressman Mark Takai also commented saying, “I would like to thank the Obama Administration and the Department of the Interior for strengthening the US government’s relationship with the Native Hawaiian people.  I have always supported Native Hawaiians and will continue to make sure the community’s consensus is implemented in Washington at the federal level so that they may have more ownership of their own destiny at home.”