Comments of OHA regarding proposed procedures for reestablishing a government-to-government relationship with the Native Hawaiian government

7/21/2019 Comments of OHA regarding proposed procedures for reestablishing a government-to-government relationship wit…

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COMMENTS OF THE OFFICE OF HAWAIIAN AFFAIRS REGARDING PROPOSED PROCEDURES FOR REESTABLISHING A GOVERNMENT-TO-

GOVERNMENT RELATIONSHIP WITH THE NATIVE HAWAIIAN GOVERNMENT

Aloha mai kākou. The Office of Hawaiian Affairs (OHA)1 commends the Department of the

Interior (Department) for taking this momentous step toward ending the unequal treatment of NativeHawaiians as an indigenous people and beginning the reconciliation process called for by Congress overtwenty years ago. The Department’s Procedures for Reestablishing a Formal Government-to-Government

Relationship With the Native Hawaiian Community (Proposed Rule), proposes an answer to the NativeHawaiian community’s long-standing call for a mechanism to formalize the special political and trust

relationship that has existed between the United States and the Native Hawaiian people for more than acentury. We now find ourselves in a historic moment where the Department has the opportunity to issuea final rule and begin reversing over a hundred years of Native Hawaiian governance suppression. Forthis reason, and all those described below, OHA STRONGLY SUPPORTS the accelerated promulgationof the Proposed Rule, as amended in Attachment A.

As a fundamental matter, OHA continues to strongly support accelerated administrative action toreestablish a government-to-government relationship between the United States and the Native Hawaiian

people. The reestablishment of such a relationship is the most viable way to protect and expand existing Native Hawaiian resources and rights; it is a matter of justice and equity for Native Hawaiians; and it isan action that has broad- based community support, as evidenced by the public’s comments on theDepartment’s Advanced Notice of Proposed Rulemaking (ANPRM). Therefore, OHA STRONGLY

SUPPORTS the spirit and general principles embodied in the Proposed Rule.

Consistent with its strong support, OHA respectfully urges the Department to amend certain provisions of the Proposed Rule that undermine the Rule’s commendable spirit and general principles. In particular, OHA urges the Department (1) to amend provisions that impair the Native Hawaiian

community’s inherent authority to define its own membership, (2) to adjust thresholds and standards asappropriate to ensure that they are practical and achievable for the community, and (3) to amend

1 OHA is a quasi-autonomous governmental agency established by state law to advocate for the protection and

advancement of Native Hawaiian benefits and rights and to manage Native Hawaiian trust assets until a free-

standing Native Hawaiian government is formed to assume that responsibility. See Haw. Const. art. XII,

§§ 5 and 6; Haw. Rev. Stat. § 10-3(6) (Supp. 2007); Stand. Comm. Rep. No. 59, reprinted in 1978 Proceedings of

the Constitutional Convention of Hawaii, Vol. 1, at 644-45.



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provisions that could unduly delay or frustrate the review of a Request for the reestablishment of agovernment-to-government relationship.

In accordance with its position described above, OHA offers the following specific comments and proposed amendments:

A. OHA Continues to Strongly Support the Promulgation of a Federal Rule in Li ght of the Broad-

Based Communi ty Support for Such Acti on.

OHA previously expressed its strong support for the promulgation of a proposed federal rule to

reestablish a government-to-government relationship between the United States and the Native Hawaiiancommunity. OHA’s strong support was based on: (1) OHA’s determination as fiduciary that

reestablishing such a relationship would be the most viable way to protect and expand existing trustassets, federal programmatic funding, federal consultation rights and other self-determination rights underfederal law; (2) the widespread understanding that, as a matter of justice and equity, Native Hawaiians

should be afforded the same basic self-governance rights afforded all other major indigenous groups inthe nation; and (3) OHA’s assessment that there is broad-based community support for such action.

OHA’s independent analysis of the comments submitted in response to the ANPRM verified thatthere is broad-based community support for moving forward to reestablish a government-to-governmentrelationship between the United States and the Native Hawaiian community. Based on OHA’sconservative quantitative analysis of the total 5,782 separate written and oral comments that eithersupported or opposed a federal rule, a supermajority of more than three-fourths of commenters supported

the promulgation of a federal rule.2

Moreover, OHA’s qualitative analysis of the responses to the five threshold questionsdemonstrates a general unity of vision among supportive commenters on the appropriate parameters for afederal rule. In particular, the responsive comments3 expressed certain general preferences in response tothe five threshold questions provided below.

1.

The federal government should reestablish a government-to-government

relationship with the Native Hawaiian community as a matter of equity between

Native peoples in the United States, to fulfill the United States’ trust responsibilities

under its own laws, and to further reconciliation efforts including the reconciliation

efforts called for by the Apology Resolution.

2.

The federal government should provide non-intrusive support upon request from

the Native Hawaiian community.

3.

Secretary-provided assistance should be in the form of funding, technical assistance,

and open communication about the Department’s standards and expectations

regarding the final structure of the Native Hawaiian government and the

ratification process.4.

The Secretary should rely on the reorganization of a Native Hawaiian government

through a process established by the Native Hawaiian community but the role of the

2 The three-fourths supermajority mentioned here does not include those comments that did not take a clear position

of support or opposition to the promulgation of a federal rule.3 Other comments also expressed a general preference for preserving existing rights.



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State of Hawai‘i in this process should be limited. Reorganization should be left to

the Native Hawaiian community.

5.

The Native Hawaiian government should be a single government reorganized

through a fair, balanced and open reorganization process.

The Proposed Rule demonstrates the Department’s thoughtful and thorough consideration of the

comments submitted to the public docket. The Proposed Rule also appears to appropriately incorporatewidely supported general principles articulated in the public comments. For example, commentersoverwhelmingly agreed that Native Hawaiians should be allowed the full scope of self-determination informing their government. The Proposed Rule acknowledges and incorporates this most critical principle

by affirming that “[c]onsistent with these comments, the Department is proposing only to create a procedure and criteria that would facilitate the reestablishment of a formal government-to-governmentrelationship with a reorganized Native Hawaiian government without involving the Federal Governmentin the Native Hawaiian community’s nation- building process.” The Proposed Rule also incorporates thecommenters’ general consensus that the Native Hawaiian government with whom the federal governmentreestablishes a government-to-government relationship should be a single government reorganizedthrough a fair, balanced and open reorganization process.

In light of the foregoing, OHA strongly supports the spirit and general principles articulated in theProposed Rule. Consistent with its support, OHA respectfully urges the Department to amend certain

provisions of the Proposed Rule that inadvertently may undermine the Rule’s commendable spirit andgeneral principles. These amendments, described in detail below, will ensure that specific portions of theProposed Rule will not thwart the Rule’s overarching goal of enabling the Native Hawaiian community toconduct its own reorganization process and reestablish a government-to-government relationship with theUnited States.

B. The Procedures for Reestabli shing a Government-to-Government Relationship With the Nati ve

Hawaiian Community Should Preserve the Community’s Inherent Sovereign Right to Define

Itself.

One of the most fundamental principles of federal law regarding Native self-governance is that Native peoples maintain the inherent sovereign right to define their own membership criteria. Consistentwith this firmly entrenched legal principle, the Supreme Court and the Ninth Circuit have repeatedlydeferred to Native communities’ authority to define their own membership and ruled that such authority“is central to [a Native people’s] existence as an independent political community.” Santa Clara Pueblo

v. Martinez, 436 U.S. 49, 72 n.32 (1978); see also Alto v. Black, 738 F.3d 1111, 1115 (9th Cir. 2013); Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1011 (9th Cir. 2007). The Proposed Rule,however, purports to impose membership definitions on the Native Hawaiian community that conflictwith the community’s own definitions. In particular, the Proposed Rule requires the Native Hawaiiancommunity to exclude Native Hawaiians who are not United States citizens from participating in their

government reorganization process, and the Proposed Rule forces the Native Hawaiian community todivide itself according to blood quantum for voting purposes. Such requirements constrain the inherent

right of the Native Hawaiian people to define their own membership for government reorganization purposes and are not needed to validate the government reorganization process under federal law.Accordingly, the requirements should not appear in the Final Rule.

1. The Procedures Need Not and Should Not Prohibit Native Hawaiians Who Are Not

United States Citizens From Participating in the Reorganization of Their

Government.



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The United States currently maintains government-to-government relationships with Nativegovernments that actively extend membership to individuals who are not United States citizens.

4

Moreover, it is generally uncommon for tribal governments to explicitly exclude individuals from tribalmembership based on U.S. citizenship.5 In fact, OHA’s review of a sampling of 48 tribal government

constitutions revealed that 92 percent do not require U.S. citizenship as an express condition of tribal

membership.6 Not only has the federal government respected the right of these Native governments todetermine their membership without regard to U.S. citizenship as a matter of internal Native affairs, insome instances the federal government has even adjusted federal law to accommodate the Nativegovernment’s citizenship definition.7 Accordingly, there is a compelling precedent in federal law and

policy for deferring to the Native Hawaiian community’s inherent right to define its own membership toinclude Native Hawaiians who are not United States citizens for government reorganization purposes.Moreover, to the extent that the U.S. citizenship provisions have been included based on concerns aboutaccess to federal benefits, procedures can be (and typically are) put in place by the Native government to

alleviate any such concerns. Likewise, the practical reality is that the number of Native Hawaiians whoare not U.S. citizens represents a de minimis percentage of the overall population of qualified NativeHawaiians.

Furthermore, federal law does not uniformly utilize a U.S. citizenship criterion for purposes ofdefining Native Hawaiian. As the Department indicates in its notice of the Proposed Rule, “Congress hasenacted over 150 statutes recognizing and implementing a special political and trust relationship with the

Native Hawaiian community,” and Congress’s actions form the basis for the Department’s currentactions. Accordingly, it is important to note that when Congress has chosen to define the Native

Hawaiian community, Congress has overwhelmingly chosen to define Native Hawaiians in a broadmanner that allows the Native Hawaiian community to be inclusive of its people, regardless of U.S.citizenship. To be specific, of the 45 federal statutes that include a statutory definition of Native

Hawaiian, the overwhelming majority (31 out of 45) do not limit that definition to U.S. citizens. (SeeAttachment B.) Notably, even the highly stringent 1921 Hawaiian Homes Commission Act (HHCA)does not contain a U.S. citizenship requirement. Congress’s practice of defining the Native Hawaiiancommunity broadly, without regard to U.S. citizenship, provides further support for deference to the

inherent authority of the Native Hawaiian community to make its own membership decisions, includingthe extent to which U.S. citizenship should be considered.

Finally, no major registry of Native Hawaiians requires U.S. citizenship as a condition ofregistration. The Native Hawaiian Roll Commission does not require U.S. citizenship as a condition ofregistration for its roll of qualified Native Hawaiians.8 OHA’s Hawaiian Registry Program also does not

4 See, e.g., the Tohono O’odham Nation, the Kumeyaay tribes of Southern California, and the Kickapoo Traditional

Tribe of Texas.5 While we understand that there are instances where such non-U.S. citizens may not be eligible to receive federal

benefits, we also appreciate that federal benefits and tribal membership are separate and not necessarily coextensive.6 OHA conducted this analysis by reviewing a sampling of 48 tribal government constitutions published on the

Native American Constitution and Law Digitization Project, developed collaboratively by the University ofOklahoma Law Library and the National Indian Law Library of the Native American Rights Fund. See:

<http://thorpe.ou.edu/>7 For example, in 1983, Congress passed the Texas Band of Kickapoo Act, which gave Kickapoo Indians of

Mexican citizenship the right to cross the U.S.-Mexico border freely and to live and work in the United States. See

Texas Band of Kickapoo Act, Pub. L. No. 97-429, 96 Stat. 2269 (1983).8 Act 195, July 7, 2011, Session Laws. HAW. R EV. STAT. § 10H-3 (2011) Session Laws 2011.

http://www.capitol.hawaii.gov/session2011/bills/GM1299_.PDF Act 195 defines “a ‘qualified Native Hawaiian’” as“an individual who the commission determines has satisfied” criteria indicating they are “a descendant of the

http://thorpe.ou.edu/

http://www.capitol.hawaii.gov/session2011/bills/GM1299_.PDF



http://thorpe.ou.edu/



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require U.S. citizenship.9 OHA’s now-inactive Operation ‘Ohana registry was considered a “worldwide” program that did not require U.S. citizenship.10 Kau Inoa (also currently inactive) did not require U.S.

citizenship. The Kamehameha Schools’ Ho‘oulu Hawaiian Data Center also does not require U.S.citizenship.

11 Even the registry with the most stringent criteria — the Department of Hawaiian Home

Lands registry — does not discriminate against applicants on the basis of U.S. citizenship.12 Therefore,requiring U.S. citizenship as a condition of participation in the Native Hawaiian government

reorganization process would be inconsistent with the community’s operative definitions of NativeHawaiian, and it might also create a significant practical impediment to reorganization. Morespecifically, because no major registry currently tracks United States citizenship, such information wouldhave to be gathered and verified through a costly and time consuming separate process that couldundermine a successful reorganization.

For these reasons, the Final Rule should not impose a U.S. citizenship requirement and shouldinstead defer to the Native Hawaiian community’s inherent authority to define its own membershipcriteria for government reorganization purposes. The federal government routinely interacts with other

Native governments that do not expressly limit their membership based on U.S. citizenship, Congress hasnot articulated an all-purpose federal definition of Native Hawaiian that mandates U.S. citizenship, and

the Native Hawaiian community does not define itself according to U.S. citizenship. In addition, the

imposition of citizenship criteria at this late stage, after Native Hawaiians have been enrolling on existingregistries for decades, would create a significant barrier to timely and cost-effective governmentreorganization. Therefore, OHA urges the Department to incorporate the amendments set forth inAttachment A at §§ 50.4 (definition of “Native Hawaiian”), 50.12(a)(1)(i)-(ii) and 50.12(b)(2)(i)-(ii).

2. The Procedures Need Not and Should Not Create Separate Voting Classes Based on

Blood Quantum.

OHA strongly agrees that a Native Hawaiian government making a Request under the Procedures

must take reasonable steps to protect the unique rights and interests of HHCA beneficiaries during its

aboriginal peoples” of “the area that now constitutes the State of Hawaii” or a person “who was eligible in 1921 forthe programs authorized by the Hawaiian Homes Commission Act, 1920, or a direct lineal descendant of that

individual” and “who has maintained a significant . . . connection to the Native Hawaiian community and wishes to

participate in the organization of the Native Hawaiian governing entity” and who is “eighteen years of age or older.”9 HAW. R EV. STAT. § 10-19. The law is clear that registration is based on descent and implicitly not citizenship,

“[i]nclusion of persons in the Hawaiian registry shall be based upon genealogical records sufficient to establish the person’s descent from the aboriginal people inhabiting the Hawaiian Islands in 1778.”http://www.capitol.hawaii.gov/hrscurrent/Vol01_Ch0001-0042F/HRS0010/HRS_0010-0019.htm 10 Operation ‘Ohana registration form. See also, Operation ‘Ohana Hawaiian Ancestry Enrollment Policy andProcedures. The absence of United States citizenship as an eligibility criterion shows that citizenship was not a

condition of enrollment in the program.11 Hawaiian Ancestry Verification Guidebook, Ho‘oulu Hawaiian Data Center. Kamehameha Schools.

https://apps.ksbe.edu/datacenter/sites/apps.ksbe.edu.datacenter/files/HHDCRegGuideRev17.pdf (The guidebook issilent on a U.S. citizenship requirement.)12 The Department of Hawaiian Home Lands does not list U.S. citizenship as an eligibility requirement on its web

page providing information on how to apply for Hawaiian Home Lands. The only two requirements listed are that

an individual must be at least 18 years old and must be native Hawaiian (“any descendant of not less than one-half

part of the blood of the races inhabiting the Hawaiian Islands previous to 1778” or in simpler terms, possess a blood

quantum of at least 50 percent Hawaiian). Applying for Hawaiian Home Lands, DEPARTMENT OF HAWAIIAN HOME

LANDS, http://dhhl.hawaii.gov/applications/applying-for-hawaiian-home-lands/

http://www.capitol.hawaii.gov/hrscurrent/Vol01_Ch0001-0042F/HRS0010/HRS_0010-0019.htm


https://apps.ksbe.edu/datacenter/sites/apps.ksbe.edu.datacenter/files/HHDCRegGuideRev17.pdf


http://dhhl.hawaii.gov/applications/applying-for-hawaiian-home-lands/








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government reorganization process and in the exercise of its governmental authority. Accordingly, OHAsupports the aspects of the Proposed Rule that:

(1) establish that documented HHCA eligibility, standing alone, renders an individual eligible to participate in a vote to ratify the organic governing documents of the Native Hawaiian

government (§ 50.12 (a)(1)(i));

(2) mandate that any roll used to determine eligibility to participate in a ratification vote alsoinclude persons with documented HHCA eligibility (§ 50.12 (b)(2)(i));

(3) provide that the organic governing document of the Native Hawaiian government must permit HHCA-eligible Native Hawaiians to enroll as members (§ 50.13 (f)(1));

(4) require that the organic governing document of the Native Hawaiian government protect and preserve beneficiary rights, protections, and benefits under the HHCA and HawaiianHomelands Recovery Act (HHLRA); and

(5) affirm that the Native Hawaiian government will not have the authority to sell, dispose of,

lease, or encumber Hawaiian home lands or interests in those lands, or to diminish any beneficiary rights, protections, or benefits granted by the HHCA, the HHLRA, the Act ofMarch 18, 1959, 73 Stat. 4; or the Act of November 11, 1993, secs. 10001-10004, 107 Stat.

1418, 1480-84.

These provisions ensure protection of HHCA beneficiaries’ voting rights during the governmentreorganization process, secure HHCA beneficiaries’ membership rights following reorganization, andensure that HHCA beneficiaries’ existing rights, protections, and benefits under federal laws are notdiminished by the Native Hawaiian government’s exercise of governmental authority. As such, these

provisions provide robust and comprehensive protection for HHCA beneficiaries’ unique rights andinterests throughout the government reorganization process and beyond. In light of this, the ProposedRule’s additional provisions creating separate voter classes based on blood quantum are unnecessary.Moreover, the political history of the Native Hawaiian people and the legislative history of the HHCAsupport treating all Native Hawaiians equally for voting purposes.

As they pertain to Native Hawaiians, blood quantum requirements are a federal convention and

are not a traditional Native Hawaiian means of restricting or classifying Native Hawaiians’ access to civic participation in public governance. Prior to the overthrow of the Hawaiian Kingdom, Native Hawaiians

had the right to vote for and hold public office without regard to blood quantum.13

No records were madeor kept of voter blood quantum, and even the official Kingdom census made no blood quantum

distinctions, instead describing Native Hawaiians collectively as “Aboriginals (pure/part).”14 This isconsistent with Native Hawaiians’ traditional notion of Native Hawaiian identity as a matter of descentand genealogy.15 Accordingly, the Native Hawaiian community’s tradition and political history support

use of a single Native Hawaiian voting class for reorganization purposes.

13 Certain Kingdom constitutions impose other criteria that restricted such access, but blood quantum was not used

as a criteria in any constitution. HAWAIIAN K INGDOM CONSTITUTION 1864, art. 61. (stating eligibility requirements

for elected representatives to the Legislative Assembly). See also, HAWAIIAN K INGDOM CONSTITUTION 1887, art.61. (stating eligibility requirements for elected representatives to the Legislative Assembly). Suggest that you use

art. 62 of the 1864 Constitution, which required that an elector for representatives to the Legislative Assembly meet

certain property or income qualifications. For the 1887 Constitution, should probably use art. 59 stating eligibility

requirements for voters for the House of Nobles and art. 62 stating eligibility requirements for electors for the House

of Representatives (see attached).14 Hawaiian Kingdom Census of 1890.15 See LILIKALA K. KAME‘ELEIHIWA, NATIVE LAND AND FOREIGN DESIRES, PEHEA LE PONO AI?2-3 (Bishop Museum Press 1992). “Hawaiian identity is, in fact, derived from the Kumulipo, the great cosmogonic



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Similarly, the legislative history of the HHCA supports use of a single, unified voting class.House Resolution 13500, which gave rise to the HHCA, originally contained a blood quantum of 1/32

Native Hawaiian blood, which at the time effectively included all Native Hawaiians.16 The more stringent50% blood quantum restriction was an amendment later forced by the Senate as a condition of passage ofthe final HHCA to appease ranching and sugar interests.17 The 50% blood quantum requirement did not

reflect any existing method for conceptually dividing the Native Hawaiian community, but rather, was adivision imposed upon the community during the “allotment period” of federal Indian policy, a time when

Native communities were being deliberately divided in an attempt to eliminate the communities and endthe federal government’s trust responsibility.18 Accordingly, the legislative history of the HHCA alsosupports treating the Native Hawaiian community as a single, unified community for purposes of political

identity or self-governance.

For the foregoing reasons, the Proposed Rule should be amended as indicated in Attachment A at§§ 50.12, 50.12(a)(2), 50.14(a)(4)-(5), 50.14(b)(5)(v), 50.14(c) and 50.16(h) to eliminate those proposed

provisions that create separate voter classes based on blood quantum. OHA urges the Department to treat Native Hawaiians as one lāhui19

without reinforcing divisions based on blood quantum.

C. The Procedures for Ratifying Organic Government Documents Should Uti li ze Practical and

Achievable Voter Participation Thr esholds.

1. The Procedures Should Utilize a “Plurality” Rather Than “Majority” Voting

Standard.

genealogy. Its essential lesson is that every aspect of the Hawaiian conception of the world is related by birth, and as

such, all parts of the Hawaiian world are one indivisible lineage. Conceived in this way, the genealogy of the Land,

the Gods, Chiefs, and people intertwine with one another, and with all the myriad aspects of the universe. For if

someone were to ask a Hawaiian, ‘Who are you?,’ he or she could only meaningfully answer by referring to his or

her beginnings, to his or her genealogy and lineage, which is like a map that guides each Hawaiian’s relationshipwith the world. In traditional times, Hawaiians patter ned their behavior after the ancestral example found in theirgenealogy. Today, we Hawaiians use genealogical relationships to establish our collective identity via a socialnetwork of extended ‘ohana (family). Our shared genealogy helps us define our Lāhui (nation) as an entity distinct

from the waves of foreigners that have inundated our islands.”16 In the Senate committee hearings on H.R. 13500, A. G. M. Robertson, a representative from Parker Ranch

testified, “The bill defines ‘native Hawaiians’ as being Polynesians of not less than one thirty-second blood.” Hearings on H. R. 13500. A Bill to Amend an Act Entitled “An Act to Provide a Government for the Territory of

Hawaii,” Approved April 30, 1900, As Amended, to Establish an Hawaiian Homes Commission, and for Other

Purposes Before the S. Comm. on Territories, 66th Cong. 9 (1920). The House committee report on H.R. 13500

further clarified that a “native Hawaiian” was defined as “descendants of not less than one-thirty-second part of the

blood of the original races which inhabited the islands at the time of their discovery by Capt. Cook.” H.R. Rep. No.66-839, at 8 (1920). NATIVE HAWAIIAN LAW: A TREATISE 186, 233 n.87 (Melody K. MacKenzie et al. eds., 2015).17

NATIVE HAWAIIAN LAW: A TREATISE 186, 233-34 n.94 (Melody K. MacKenzie et al. eds., 2015); DaviannaPōmaikaʻi McGregor & Melody Kapilialoha MacKenzie, Moʻolelo Ea O Nā Hawaiʻi: History of Native Hawaiian

Governance in Hawaiʻi 430 (2014), http://interior.gov/ohr/reorg/upload/McGregor-and-MacKenzie-

History_of_Native_Hawaiian_Governance.pdf . 18 See COHEN’S HANDBOOK OF FEDERAL I NDIAN LAW § 1.04 (Nell Jessup Newton ed., 2012) for a thorough

discussion of the allotment period. The Hawaiian Homes Commission Act was signed into law in 1921; the

allotment period lasted from 1871 until 1928.19 Translations for lāhui include nation and tribe. MARY K AWENA PUKUI & SAMUEL H. ELBERT, HAWAIIAN

DICTIONARY 190 (1986).

http://interior.gov/ohr/reorg/upload/McGregor-and-MacKenzie-History_of_Native_Hawaiian_Governance.pdf








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Along with the inherent authority to determine their own membership, Native peoples also havethe inherent authority to determine their own forms of governance.20 Although this authority is

acknowledged by the Proposed Rule and related notice, the Proposed Rule inadvertently limits how Native Hawaiians can draft, propose, and ratify their own organic governing document by requiring thatthe document be adopted by a majority vote. See § 50.16(g) for Native Hawaiians generally, and§ 50.16(h) for HHCA-eligible Native Hawaiians.

Specifically, the majority voting standard set forth in the Proposed Rule contemplates a situationwhere reorganization participants propose a single governing document for Native Hawaiians to eithersupport or oppose by vote. Language found in § 50.14(b)(1) makes this clear by requiring ademonstration of “how and when the Native Hawaiian community made the full text of the proposedgoverning document . . . available to Native Hawaiians prior to the ratification referendum . . . .” In sucha situation, requiring that votes “exceed[ ] half of the total number of ballots that Native Hawaiians cast .”seems reasonable.

However, the proposed rule does not consider the real possibility that reorganization participants

could simultaneously present several alternative organic governing documents to Native Hawaiians for avote. In fact, given the known diversity of perspectives in the Native Hawaiian community, it is highly

likely that reorganization participants will allow the Native Hawaiian community to exercise its self-determination by deciding which among the several proposals could best address the needs and concernsof Native Hawaiians. For example, reorganization participants may simultaneously present for approval:

(A) a governing document modeled after past Hawaiian Kingdom constitutions, (B) a governingdocument incorporating constitutions or government frameworks of other indigenous governments withinthe United States, and (C) a governing document incorporating constitutions or government frameworks

of other indigenous governments outside the United States. As currently drafted, the majority votingstandard in the Proposed Rule would preclude the Native Hawaiian community from exercising its

inherent authority to utilize this method of approval.

To illustrate this point, if reorganization participants simultaneously presented proposals A, B,

and C for a vote, and Proposal A received twenty-one-percent (21%) of the votes, Proposal B received

thirty-percent (30%) of the votes, and Proposal C received forty-nine percent (49%) of the votes, nogoverning document would be approved under § 50.16(g) of the Proposed Rule, even though NativeHawaiians clearly supported Proposal C over Proposals A and B.

In order to avoid this untenable outcome, the Final Rule should allow for a plurality whenappropriate rather than a majority voting standard, as noted in Attachment A at § 50.16(g). Thisamendment would protect the inherent right of the Native Hawaiian community to determine its owngovernment processes, including the use of document approval processes involving multiple proposals.In addition to maximizing Native Hawaiian sovereignty, a plurality voting standard would also allow for

greater efficiency and effectiveness by eliminating the need to hold separate approval votes on each proposed document, which would be ineffective and prohibitively costly given the size of the voter base.

2. The Procedures Should Set a Practical and Achievable Ratification VotingThreshold of 25,210 Total Affirmative Votes to Establish a Strong Presumption of

Broad-Based Community Support Among Native Hawaiians.

In addition to creating problematic divisions within the Native Hawaiian voting community, §50.16(g) also sets high voter participation thresholds for the Native Hawaiian community that are likely

20 See 25 U.S.C. § 3601(4).



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unachievable due to the unique challenge presented by the community’s strict verification requirements.More specifically, the Proposed Rule establishes a minimum threshold of 30,000 affirmative votes

required to potentially demonstrate community support for a governing document, and a threshold of50,000 affirmative votes to apply a strong presumption of community support for a document. By settingsuch a high voter participation threshold, § 50.16(g) forces the Native Hawaiian community to meetsignificantly higher standards than other Native governments in order to ratify its governing documents.

As a matter of fairness and equity, the Native Hawaiian people should not be subject to a greater burdenthan other Native peoples in order to exercise their inherent self-governing authority under federal law.Accordingly, the Proposed Rule should be amended as noted in Attachment A at § 50.16(g) to createmore parity between the Rule’s voting standards and those articulated in 25 U.S.C. § 478a, concerningtribal constitutions, which states:

In any election heretofore or hereafter held under the Act of June 18, 1934 . . . onthe question of adopting a constitution and bylaws or amendments thereto . . . the vote of

a majority of those actually voting shall be necessary and sufficient to effectuate such [ ]adoption . . . as the case may be: Provided, however, That in each instance the total votecast shall not be less than 30 per centum of those entitled to vote.

The language of 25 U.S.C. § 478a therefore provides a “formula” that can be applied here:

(El igible voters x .30) x .50 + 1 = voter threshold

Based on the foregoing, the federal government’s threshold for adoption of a tribal government’sconstitution requires a voter participation rate of thirty percent or more of the population eligible to vote.

In the 2010 U.S. Census, 186,73421 individuals self-identified as adult Native Hawaiians living in the

State of Hawaii.22 (OHA uses Native Hawaiian adults residing in Hawaiˋi because we agree, as stated by

the Department in the NRPM, that it is unreasonable to use the population outside of Hawaiˋi for purposes

of calculating the voter thresholds, despite the fact that Native Hawaiians outside of the state arerightfully eligible to participate.) When making a modest adjustment to account for the difference

between self-identification with no verification process and the verification requirements set out in theProposed Rule, OHA believes that 168,061 is a reasonable and adequate number representing the eligible

voting population for the purposes of establishing the voter threshold. (This figure represents 90 percentof the self-identified figure mentioned earlier.)

If the Department were to equitably apply the 25 U.S.C. 478a standard (thirty percent voterturnout among the eligible population), then the result is a voter turnout threshold of 50,418. In terms of

the affirmative vote, a reasonable and equitable threshold would be a majority of those 50,418. Amajority here is represented by 25,210 affirmative votes. Equitable treatment of Native Hawaiians as anindigenous people justifies a 25,210 affirmative-votes threshold or another reasonably close number. As

21

See, U.S. Bureau of the Census, Census 2010, (February 23, 2012). The NPRM uses the figure of 290,000 for thenumber of self-identified Native Hawaiians living in Hawaiʻi and further explains that “about 65 percent of these Native Hawaiians are of voting age (18 years of age or older). Sixty-five percent of this number is 188,500. NPRM

at 59124-25. However, this comment uses the specific number of 186,734 as representative of the self-identified

Native Hawaiians of voting age. This particular figure is derived from the pre-rounded-up figure from the Census

Bureau of 289,970 total self-identified Native Hawaiians living in Hawaiʻi and also uses the specific percentage of64.4 rather than the rounded-up percentage of 65.22 Like the Department, OHA agrees that out-of-state Native Hawaiians should be eligible to participate but their

numbers should not be used to make it more difficult for Native Hawaiians to meet the ratification vote threshold.


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the Department has eloquently stated in its background and summary sections of the NPRM, NativeHawaiians deserve equal treatment. Using the plurality vote model, this range should be proportionally

lowered based on the number of additional documents simultaneously proposed for approval. Theformula that would apply would be:

Eligible voters x .30) x (1/number of proposals) + 1 = voter threshold

If one governing document (A) is put forward, this would constitute 2 proposals (adopting A and notadopting A). If two governing documents (A and B) are put forward, that would constitute 3 proposals(adopt A, adopt B, adopt neither), and so on.

OHA also seeks to clarify that the voter estimate figures discussed and proposed in the NPRM

have limitations in terms of their use for the purpose of establishing a voter threshold. The OHA electionsin the late 1990s, used by the Department to develop its voter threshold, differ from the type of

constitutional ratification envisioned by the Proposed Rule. Most significantly, OHA elections in the1990s required only a sworn statement of Native Hawaiian ancestry in order to participate; no verification

process was required. Secondly, OHA elections were bundled with the election of all other state andfederal offices, meaning that voters more interested in “up-ticket” elections like Congressional or

gubernatorial races would also be pulled into OHA elections because they were all on the same ballot.Third, records show that voter turnout in Hawaii has significantly decreased since the late 1990s. Lastly,these elections were conducted with substantial resources of the Hawaii State Office of Elections and

benefitted from the significant campaign resources of candidates for all races on that ticket, whereas theratification of the Native Hawaiian government’s constitution cannot assume the same level of resourcesor campaign spending.

3. If the Procedures Force the Native Hawaiian Community to Divide Itself Based on

Blood Quantum, the Ratification Voting Requirements for HHCA-Eligible Voters

Should Also Be Practical and Achievable.

Like the Proposed Rule’s general voter participation standards, the specific standards applicableto HHCA-eligible individuals need adjustment. As stated above, OHA strongly urges the Department toeliminate the separate voting classes. However, in the event that the Final Rule ultimately forces the

community to divide itself for voting purposes, the definition of HHCA eligibility should be inclusive, thevoter participation threshold employed for HHCA beneficiary ratification should be practical andachievable, and the procedure for verifying HHCA status should be reasonable.

First, the definition of HHCA eligibility in the Proposed Rule should be amended to moreaccurately reflect the full scope of the HHCA’s reach. Namely, the definition of HHCA-eligible NativeHawaiians set forth at § 50.16(h) of the Proposed Rule includes Native Hawaiians with 50% or more

blood quantum (including individuals who have neither applied for nor obtained a lease pursuant to theHHCA), but excludes individuals with 25% to 49.9% Native Hawaiian blood quantum who are actual,

present lessees under the HHCA. Given that § 208(5) and § 209 of the Hawaiian Homes Commission Act provides for benefits to lessee transferees and successors with 25% or more Native Hawaiian blood

quantum, these individuals are legitimate beneficiaries of the HHCA and should be properly treated asHHCA-eligible for purposes of calculating the voter turnout for the Pr oposed Rule’s ratification.

Second, with respect to the voter turnout threshold for HHCA beneficiaries, OHA urges the

Department to use the 25 U.S.C. § 478a standard described above to set voter participation thresholds that



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are based on the population of individuals proven to meet the blood quantum requirements, rather than afigure based on self-reporting. The standard again is (eligible voters x .30) x .50 + 1 = voter threshold .

Reviewing the most recently published lists of DHHL residential leases (8,342) and the number ofindividuals on the DHHL waitlist (27,341), that number may be no higher than 35,683. Using the 25U.S.C. 478a formula, this would mean that no more than 10,704 total votes should be required, and 5,354votes represents a majority of those votes if only one governing document is proposed for approval.

Based on the plurality voting standard, this range should be proportionally lowered based on the numberof additional documents simultaneously proposed for approval.

Third, given the practical realities of documentation and verification, HHCA-eligible NativeHawaiian voters should be permitted to demonstrate their HHCA-eligible status through a sworn affidavit

attached to their ballot. No current list of qualified Native Hawaiians tracks HHCA eligibility. This istrue even with respect to the lists maintained by DHHL, as not all HHCA-eligible beneficiaries areactually registered with DHHL. Accordingly, in order to implement the blood quantum-based ratificationvote proposed in the Procedures, the body conducting the referendum would have to implement a processto verify HHCA-eligibility. Based on OHA’s decades of experience verifying Native Hawaiian ancestry,such a process would be extremely costly and time consuming, even if all persons seeking to establishHHCA-eligibility presented official DHHL records, which is highly unlikely. Accordingly, a sworn

affidavit attesting to HHCA-eligibility should be deemed sufficient to demonstrate HHCA-eligibility forratification voting purposes only.23 Such a standard is the only practical and achievable method forverifying HHCA eligibility in the context of a ratification vote.

Based on the foregoing, the Proposed Rule should be amended as indicated in Attachment A at §§

50.4 (definition of HHCA-eligible Native Hawaiian), 50.12(a)(2), 50.14(a)(4)-(5), 50.14(b)(5)(v),50.14(c), 50.16(h) and 50.44(e).

D. The Procedures Should Provide for Timely and Appropri ate Cooperation by the Department of

the I nteri or.

1. The Department Should Provide Technical Assistance Upon Request, Including

Guidance on the Compliance of Draft Organic Governing Documents and theRatification.

Reorganizing a Native Hawaiian government will require the Native Hawaiian people to invest asignificant amount of money and time. It would be devastating to the community if it completed the

process, determined it wanted to submit a request under the Rule and found itself ineligible to qualify because of a technical deficiency in the process that could have been avoided if the community had

received proper support. For this reason, the Department should amend the Rule as indicated inAttachment A at § 50.21, to provide for technical assistance throughout the government reorganization

process upon the Native Hawaiian community’s request. This assistance should include guidance on thecompliance of the Native Hawaiian community’s draft organic documents with the standards articulatedin the Rule. Assistance of this nature is commonplace in the federal government’s relationships with

23 Usage of sworn affidavits of HHCA-eligibility should be limited to ratification purposes. The Department of

Hawaiian Home Lands (“DHHL”) will be concerned about a potential influx of Native Hawaiians using recognizedsworn affidavits for HHCA leases without going through the DHHL’s verification process. The DHHL has, at least

internally, questioned whether “there is liability for the [DHHL] if someone demands inclusion on the waitlisthaving been certified HHCA-eligible by another state entity?” STATE OF HAWAII DEP’T OF HAWAIIAN HOME

LANDS, APPROVAL OF A HAWAIIAN HOMES COMMISSION R ESOLUTION IN SUPPORT OF THE U NITED STATES

DEPARTMENT OF THE I NTERIOR PROPOSED R ULE 43 C.F.R. PART 50, at 5, November 6, 2015.



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other Native governments. See 25 U.S.C. §§ 476, 503; 25 C.F.R. Part 81. Indeed, the ANPRM expresslycontemplated the potential for federal involvement of this kind.24

2. The Deadline Extensions Afforded the Department by the Procedures Should be

Limited to 30 days.

The Native Hawaiian people have waited over a hundred years for the ability to restore a measureof formal self-governance to the community. During that time, the socioeconomic conditions of Native

Hawaiians have worsened, and there has been a steady increase in the frequency and intensity of threats to Native Hawaiian land, natural resources and cultural resources. Accordingly, the need to restore self-

governance is urgent, and the contemplated process for reestablishing a government-to-governmentrelationship should be subject to a firm timeline with limited and clearly defined extension provisions. In

particular, any deadline extension afforded the Department by the Rule should be limited to a singleextension of 30 days, as indicated in Attachment A at § 50.32, to prevent undue delay in the review ofRequests. Deadlines applicable to the Department should require consent of the Requester and all granted

extensions should require notice to the requester.25

E. The Procedures Should Clari fy that a Request for Reestabli shment M ay Come From a Native

Hawaii an Governing Body I nstall ed Pursuant to Election or I nterim Appoin tment.

The Department explained that the “rule provides for reestablishment of relations with only asingle sovereign Native Hawaiian government” but also acknowledged that “there has been no formal,organized Native Hawaiian government since 1893 . . . .”26

Implicitly recognizing that Native Hawaiiansdo not currently have regularly scheduled elections for choosing their own indigenous governmentleaders, the Department should amend the Proposed Rule specifically clarifying that it permits a Request

for reestablishment of a government-to-government relationship to come from an interim NativeHawaiian governing body that precedes an elected Native Hawaiian governing body.

It is highly likely that, in preparing for the formal development of a Native Hawaiian government, Native Hawaiian reorganization participants would first appoint an interim Native Hawaiian governing

body to facilitate the organic activities of the nascent government, including the government’s firstelection and other similar matters of importance. It is also possible that the Native Hawaiian peoplewould view a Request for reestablishment of a government-to-government relationship as an urgent

priority that cannot wait for a formal election of governmental officials, but rather, should be submittedimmediately upon constitution of the interim governing body. Clarifying the Rule in this manner also

respects the Native Hawaiian people’s right to determine its own political priorities. Accordingly, theProposed Rule should be amended as noted in Attachment A at §§ 50.10(e), 50.15 to prepare for thiseventuality.

24 Procedures for Reestablishing a Government-to-Government Relationship with the Native Hawaiian Community,

Advance Notice of Proposed Rulemaking, 79 Fed. Reg. 35296, 35302-03 (June 20, 2014) (soliciting comments).The Department of Interior inquired about its assistance in the context of: “criteria f or persons to be included on the

roll of those eligible to partici pate in reorganizing,” “what should be the process for preparing a roll of persons whowould be eligible to participate in reorganizing a Native Hawaiian government,” and what the role of the InteriorSecretary should be in providing assistance in the constitution drafting process.25 Requester consent for Department deadline extensions and notice of extensions are consistent with the

Department’s rules for American Indian Tribes. See, 25 CFR. § 83.8. 26 Procedures for Reestablishing a Government-to-Government Relationship with the Native Hawaiian Community,

80 Fed. Reg. 59113, 59114 (proposed Oct. 1, 2015) (to be codified at 43 C.F.R. pt. 50).



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F. The Procedures Should Clar i fy That, Upon Reestablishment of the Government-to-

Government Relationship, the Federal Government’s Plenary Power and Trust Responsibility

Extend to the Nati ve Hawaiian Government to the Same Extent They Extend to Other

Federall y Recognized Native Governments.

As the Department recently asserted in a federal court briefing, general principles of federal

Indian law “apply with equal force in the Native Hawaiian context. In enacting scores of Federal statutesdirectly affecting the Native Hawaiian community over the last century, Congress has exercised itsIndian-affairs plenary power repeatedly — and often expressly.”27 For this reason, to the extent theProposed Rule expressly states that the Native Hawaiian government will be subject to the plenary power

of the federal government, it should clarify that the Native Hawaiian government will be subject to such plenary power to the same extent as other federally recognized Native governments in the continentalUnited States. See Attachment A at § 50.44(b)

CONCLUSION

In conclusion, OHA STRONGLY SUPPORTS the spirit and general principles embodied in theProposed Rule. Consistent with its strong support, OHA respectfully urges the Department to adopt the

Proposed Rule, as amended in Attachment A. The proposed amendments will strengthen the principlesembodied in the Rule and ensure that the government-to-government relationship accessible through theRule will be made available to a Native Hawaiian government that is an organic expression of the NativeHawaiian people’s inherent sovereign authority. OHA once again urges the Department to move forwardencouraged by the guiding wisdom of our beloved Queen Lili‘uokalani, who encouraged her people tolook to those in positions of leadership to make things right:

A great responsibility has fallen upon them to look out for the welfare of the lāhui in accordancewith the laws that the United States has handed down, to ensure that the people will receive rightsand benefits for our and future generations, and I will also derive that one benefit [i.e., the welfareof the people].

Mahalo for the opportunity to comment.

27 Brief for the U.S. Dep’t of the Interior as Amicus Curiae Supporting Defendants, Akina et al. v. State of Hawaii et

al., Civ. No. 15-00322 JMS-BMK (D. Haw. 2015), Doc. No. 93. at 18.