On October 1, 2015, the Department of Interior (DOI) published in the FEDERAL REGISTER a proposed rule which would provide a procedure and criteria for reestablishing a formal government-to-government relationship between the United States and the Native Hawaiian community, if the Native Hawaiian community chooses to do so. This proposed rule follows the Advance Notice of Proposed Rulemaking published in 2014 (see our General Memorandum 14-052 of July 11, 2014). Comments are due by December 30, 2015. In addition, DOI will hold a series meetings and tribal consultations, the first of which is Monday October 26, 2015. Further details are provided at the end of this Memorandum.
The proposal would not on its own establish a Native Hawaiian governmental structure, instead leaving that decision in the hands of the Native Hawaiian community and leadership:
Moreover, if a Native Hawaiian government reorganizes, it will be for that government to decide whether to seek to reestablish a formal government-to-government relationship with the United States. The process established by this rule would be optional, and Federal action would occur only upon an express formal request from the newly reorganized Native Hawaiian government.
DOI states that its authority to promulgate this rule arises out of a combination of the Executive Branch’s power to recognize Indian tribes, Congress’ plenary power over Indian tribes, and the enactment of more than 150 statutes recognizing and implementing a special political and trust relationship with the Native Hawaiian community.
DOI’s proposal would require the Native Hawaiian community to conduct a referendum to ratify a governing document for a single Native Hawaiian government and sets forth certain provisions that this governing document would be required to contain. The proposed rule would require that the governing document be approved in a ratification referendum not only by a majority of Native Hawaiians who vote, but also by a majority of Hawaiian Homes Commission Act (HHCA) eligible Native Hawaiians who vote. In addition, both majorities would be required to include enough voters to demonstrate broad-based community support. The Native Hawaiian government could then submit a request to the Secretary of Interior to reestablish a formal government-to-government relationship with the United States.
DOI states that should Native Hawaiians choose to form a government and reestablish a government-to-government relationship with the federal government, this government would have the same government-to-government relationship under the United States Constitution and federal law as the government-to-government relationship between the United States and a federally recognized tribe in the continental United States, and the same inherent sovereign governmental authorities. However, DOI explains that members of the Native Hawaiian government would not be eligible for federal Indian programs, services, and benefits unless Congress expressly authorizes such eligibility.
DOI anticipates that a Native Hawaiian government would not be eligible to conduct gaming activities under the Indian Gaming Regulatory Act (IGRA) for two reasons: 1) DOI anticipates that the Native Hawaiian government would not fall within the definition of “Indian tribe” in the IGRA, and therefore IGRA would not apply; and 2) the State of Hawaii prohibits gambling.
DOI will conduct a series of teleconferences to allow the public to comment:
October 26, 2015 (2:00pm EST)
Call-in number: 1-888-947-9025
Passcode: 1962786
October 27, 2015 (3:00pm EST) (Native Hawaiian Organizations only)
Call-in number: 1-888-947-9025
Passcode: 1962786
November 4, 2015 (1:30pm EST) (Tribal Consultation)
Call-in number: 1-888-947-9025
Passcode: 1962786
November 7, 2015 (3:00pm EST)
Call-in number: 1-888-947-9025
Passcode: 1962786
DOI’s press release is attached. The FEDERAL REGISTER notice is available here: http://www.gpo.gov/fdsys/pkg/FR-2015-10-01/pdf/2015-24712.pdf
Please let us know if we may provide additional information regarding the Department of Interior’s proposed rule to provide a procedure and criteria for reestablishing a formal government-to-government relationship between the United States and the Native Hawaiian community.
