# Procedures for Reestablishing a Formal Government-to-Government Relationship With the Native Hawaiian Community

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-23720

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** October 14, 2016
- **Citation:** 81 FR 71278

## Text

DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 50
[Docket No. DOI-2015-0005; 145D010DMDS6CS00000.000000 DX.6CS252410]
RIN 1090-AB05
Procedures for Reestablishing a Formal Government-to-Government Relationship With the Native Hawaiian Community

AGENCY:

Office of the Secretary, Department of the Interior.

ACTION:

Final rule.

SUMMARY:

This final rule establishes the Secretary of the Interior's (Secretary) administrative process for reestablishing a formal government-to-government relationship with the Native Hawaiian community to more effectively implement the special political and trust relationship that Congress established between that community and the United States. The rule does not attempt to reorganize a Native Hawaiian government or draft its constitution, nor does it dictate the form or structure of that government. Rather, the rule establishes an administrative procedure and criteria that the Secretary would use if the Native Hawaiian community forms a unified government that then seeks a formal government-to-government relationship with the United States. Consistent with the Federal policy of self-determination and self-governance for indigenous communities, the Native Hawaiian community itself would determine whether and how to reorganize its government.

DATES:

This rule is effective November 14, 2016.

FOR FURTHER INFORMATION CONTACT:

Jennifer Romero, Senior Advisor for Native Hawaiian Affairs, Office of the Secretary, 202-208-3100.

SUPPLEMENTARY INFORMATION:

(I) Executive Summary

(II) Background

(III) Overview of Final Rule

(A) How the Rule Works

(B) Major Changes

(C) Key Issues

(D) Section-by-Section Analysis

(IV) Public Comments on the Proposed Rule and Responses to Comments

(A) Overview

(B) Responses to Significant Public Comments on the Proposed Rule

(1) Issue-Specific Responses to Comments

(2) Section-by-Section Responses to Comments

(C) Tribal Summary Impact Statement

(V) Public Meetings and Tribal Consultations

(VI) Procedural Matters

(I) Executive Summary

The final rule sets forth an administrative procedure and criteria that the Secretary would use if the Native Hawaiian community forms a unified government that then seeks a formal government-to-government relationship with the United States. The rule does not provide a process for reorganizing a Native Hawaiian government. The decision to reorganize a Native Hawaiian government and to establish a formal government-to-government relationship is for the Native Hawaiian community to make as an exercise of self-determination.

Congress already federally acknowledged or recognized the Native Hawaiian community by establishing a special political and trust relationship through over 150 enactments. This unique special political and trust relationship exists even though Native Hawaiians have not had an organized government since the overthrow of the Kingdom of Hawaii in 1893. Accordingly, this rule provides a process and criteria for reestablishing a formal government-to-government relationship that would enable a reorganized Native Hawaiian government to represent the Native Hawaiian community and conduct government-to-government relations with the United States under the Constitution and applicable Federal law. The term “formal government-to-government relationship” in this rule refers to the working relationship with the United States that will occur if the Native Hawaiian community reorganizes and submits a request consistent with the rule's criteria.

Importantly, the process set out in this rule is optional and Federal action will occur only upon an express, formal request from the reorganized Native Hawaiian government. The rule also provides a process for public comment on the request and a process for the Secretary to receive, evaluate, and act on the request.

(II) Background

The Native Hawaiian community has a unique legal relationship with the United States, as well as inherent sovereign authority that has not been abrogated or relinquished, as evidenced by Congress's consistent treatment of this community over an extended period of time. Over many decades, Congress enacted more than 150 statutes recognizing and implementing a special political and trust relationship with the Native Hawaiian community. “Recognition is a formal political act [that] permanently establishes a government-to-government relationship between the United States and the recognized tribe as a `domestic dependent nation,' and imposes on the government a fiduciary trust relationship to the tribe and its members. Recognition is also a constitutive act: It institutionalizes the tribe's quasi-sovereign status, along with all the powers accompanying that status such as the power to tax, and to establish a separate judiciary.”
Cohen's Handbook of Federal Indian Law
sec. 3.02[3], at 134 (2012 ed.) (citing H.R. Rep. No. 103-781, at 2 (1994)) (footnotes and internal quotation marks and brackets omitted).

A government-to-government relationship encompasses the political relationship between sovereigns and a working relationship between the officials of those two sovereigns. Although the Native Hawaiian community has been without a formal government for over a century, Congress recognized the continuity of the Native Hawaiian community through over 150 separate statutes, which ensures it has a special political and trust relationship with the United States. At the same time, a working relationship between government officials is absent. This rulemaking provides the Native Hawaiian community with an opportunity to have a working relationship, referred to as the “formal government-to-government relationship.” The Native Hawaiian community's current relationship with the United States has substantively all of the other attributes of a government-to-government relationship, and might be described as a “sovereign to sovereign” or “government to sovereign” relationship. It is important to note that a special political and trust relationship may continue to exist even without a formal government-to-government relationship.

Among other things, the more than 150 statutes that Congress has enacted over many decades create programs and services for members of the Native Hawaiian community that are in many respects analogous to, but separate from, the programs and services that Congress enacted for federally-recognized Indian tribes in the continental United States. But during this same period, the United States has not had a formal government-to-government relationship with Native Hawaiians because there has been no formal, organized Native Hawaiian government since 1893, when a United States officer, acting without authorization of the U.S. government, conspired with residents of Hawaii to

overthrow the Kingdom of Hawaii. Many Native Hawaiians contend that their community's opportunities to thrive would be significantly bolstered through a sovereign Native Hawaiian government whose leadership could engage the United States in a formal government-togovernment relationship, exercise inherent sovereign powers of self-governance and self-determination on par with those exercised by tribes in the continental United States, and facilitate the implementation of programs and services that Congress created specifically to benefit the Native Hawaiian community.

The United States has a unique political and trust relationship with federally-recognized tribes across the country, as set forth in the Constitution, treaties, statutes, Executive Orders, administrative regulations, and judicial precedent. The Federal Government's relationship with federally-recognized tribes includes a trust responsibility—a longstanding, paramount commitment to protect their unique rights and ensure their well-being, while respecting their inherent sovereignty. In recognition of that special commitment—and in fulfillment of the solemn obligations it entails—the United States, acting through the Department of the Interior, developed processes to help tribes in the continental United States establish mechanisms to conduct formal government-to-government relationships with the United States.

Strong Native governments are critical to tribes' exercising their inherent sovereign powers, preserving their culture, and sustaining prosperous and resilient Native American communities. It is especially true that, in the current era of tribal self-determination, formal government-to-government relationships between tribes and the United States are enormously beneficial not only to Native Americans but to
all
Americans. Yet an administrative process for establishing a formal government-to-government relationship has long been denied to members of one of the Nation's largest indigenous communities: Native Hawaiians. This rule provides a process to reestablish a formal government-to-government relationship with the Native Hawaiian community.

(A) The Relationship Between the United States and the Native Hawaiian Community

Native Hawaiians are the aboriginal, indigenous people who settled the Hawaiian archipelago as early as 300 A.D., exercised sovereignty over their island archipelago and, over time, founded the Kingdom of Hawaii.
See
S. Rep. No. 111-162, at 2-3 (2010). During centuries of self-rule and at the time of Western contact in 1778, “the Native Hawaiian people lived in a highly organized, self-sufficient subsistence social system based on a communal land tenure system with a sophisticated language, culture, and religion.” Native Hawaiian Education Act, 20 U.S.C. 7512(2);
accord
Native Hawaiian Health Care Act, 42 U.S.C. 11701(4). Although the indigenous people shared a common language, ancestry, and religion, four independent chiefdoms governed the eight islands until 1810, when King Kamehameha I unified the islands under one Kingdom of Hawaii.
See Rice
v.
Cayetano,
528 U.S. 495, 500-01 (2000).
See generally
Davianna Pomaikai McGregor & Melody Kapilialoha MacKenzie,
Moolelo Ea O Na Hawaii: History of Native Hawaiian Governance in Hawaii
(2015),
available at http://www.regulations.gov/document?D=DOI-2015-0005-4290
(comment number 4290) (
Moolelo Ea O Na Hawaii
); Ralph S. Kuykendall,
The Hawaiian Kingdom Vol. I: 1778-1854, Foundation and Transformation
(1947). Kamehameha I's reign ended with his death in 1819 but the Kingdom of Hawaii, led by Native Hawaiian monarchs, continued.
Id.

Throughout the nineteenth century and until 1893, the United States “recognized the independence of the Hawaiian Nation,” “extended full and complete diplomatic recognition to the Hawaiian Government,” and “entered into several treaties with Hawaiian monarchs.” 42 U.S.C. 11701(6);
accord
20 U.S.C. 7512(4);
see Rice,
528 U.S. at 504 (citing treaties that the United States and the Kingdom of Hawaii concluded in 1826, 1849, 1875, and 1887); S. Rep. No. 103-126 (1993) (compiling conventions, treaties, and presidential messages extending U.S. diplomatic recognition to the Hawaiian government);
Moolelo Ea O Na Hawaii
at 209-11, 240-47. But during that same period, Westerners became “increasing[ly] involve[d] . . . in the economic and political affairs of the Kingdom,”
Rice,
528 U.S. at 501, 504-05, over vocal protest by Native Hawaiians.
See, e.g.,
Kuykendall at 258-60. An example of such involvement was adoption of the 1887 “Bayonet Constitution” that resulted in mass disenfranchisement of Native Hawaiians by imposing wealth and property qualifications on voters, among other changes in Kingdom governance.
See, e.g.,
Noenoe K. Silva, Kanaka Maoli Resistance to Annexation, 1 Oiwi: A Native Hawaiian Journal 43 (1998); Kuykendall,
The Hawaiian Kingdom Vol. III: 1874-1893, The Kalakaua Dynasty
(1967); Neil M. Levy, Native Hawaiian Land Rights, 63 Cal. L. Rev. 848, 861 (1975) (chronicling the displacement of Native Hawaiians from their land). Although Native Hawaiian monarchs continued to rule the Kingdom, the Bayonet Constitution triggered mass meetings and other forms of organized political protest by Native Hawaiians. This led to the establishment of Hui Kalaiaina, a Native Hawaiian political organization that advocated the replacement of that Constitution and protested subsequent annexation efforts.
See
Noenoe K. Silva,
Aloha Betrayed
127-29 (2004); S. Rep. No. 107-66, at 19 n.29 (2001). It also foreshadowed the overthrow of the Kingdom in 1893 by a small group of non-Native Hawaiians, aided by the United States Minister to Hawaii and the Armed Forces of the United States.
See generally Moolelo Ea O Na Hawaii
at 387-402; S. Rep. No. 111-162, at 3-6 (2010);
Cohen's Handbook of Federal Indian Law
sec. 4.07[4][b], at 360-61 (2012 ed.); Kuykendall,
The Hawaiian Kingdom Vol. III
at 582-605.

The Kingdom was overthrown in January 1893 by a “Committee of Safety” comprised of American and European sugar planters, descendants of missionaries, and financiers. S. Rep. No. 103-126, at 21 (1993). The Committee established a provisional government, which later declared itself to be the Republic of Hawaii, and the U.S. Minister to the Kingdom of Hawaii “immediately extended diplomatic recognition” to the provisional government “without the consent of Queen Liliuokalani or the Native Hawaiian people.”
Id.
at 21. Indeed, in his December 18, 1893 message to Congress concerning the Hawaiian Islands, President Grover Cleveland described the provisional government as an “oligarchy set up without the assent of the [Hawaiian] people,”
id.
at 32, and noted, “there is no pretense of any [ ] consent on the part of the Government of the Queen, which at that time was undisputed and was both the
de facto
and the
de jure
government,” and that “it appears that Hawaii was taken possession of by the United State forces without the consent or wish of the government of the islands, or of anybody else so far as shown, except the United States Minister.”
Id.
at 27-28 (quoting President Cleveland's Message Relating to the Hawaiian Islands—December 18, 1893) (italics in original). Following the overthrow of Hawaii's monarchy, Queen Liliuokalani, while yielding her authority under protest to the United States, called for

reinstatement of Native Hawaiian governance. Joint Resolution of November 23, 1993, 107 Stat. 1511 (Apology Resolution). The Native Hawaiian community answered, alerting existing Native Hawaiian political organizations and groups from throughout the islands to reinstate the Queen and resist the newly formed Provisional Government and any attempt at annexation.
See Moolelo Ea O Na Hawaii
at 45-50. In 1895, Hawaiian nationalists loyal to Queen Liliuokalani attempted to regain control of the Hawaiian government.
Id.
at 49-50. These attempts resulted in hundreds of arrests and convictions, including the arrest of the Queen herself, who was tried and found guilty of misprision or concealment of treason. The Queen was subsequently forced to abdicate.
Id.
These events, however, did little to suppress Native Hawaiian opposition to annexation. During this period, civic organizations convened a series of large public meetings of Native Hawaiians opposing annexation by the United States and led a petition drive that gathered 21,000 signatures, mostly from Native Hawaiians, opposing annexation.
See Moolelo Ea O Na Hawaii
at 424-28. These “Kue Petitions” are part of this rule's administrative record.

The United States nevertheless annexed Hawaii “without the consent of or compensation to the indigenous people of Hawaii or their sovereign government who were thereby denied the mechanism for expression of their inherent sovereignty through self-government and self-determination.” Native Hawaiian Health Care Act, 42 U.S.C. 11701(11). The Republic of Hawaii ceded 1.8 million acres of land to the United States “without the consent of or compensation to the Native Hawaiian people of Hawaii or their sovereign government,” Apology Resolution at 1512, and Congress passed a joint resolution—the Newlands Resolution (also known as the Joint Resolution of Annexation)—annexing the islands in 1898.
See Rice,
528 U.S. at 505.

Under the Newlands Resolution, the United States accepted the Republic of Hawaii's cession of “all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies,” and resolved that the Hawaiian Islands were “annexed as part of the territory of the United States” and became subject to the “sovereign dominion” of the United States. No consent to these terms was provided by the Kingdom of Hawaii; rather, the joint resolution “effectuated a transaction between the Republic of Hawaii and the United States” without direct relinquishment by the Native Hawaiian people of their claims to sovereignty as a people or over their national lands to the United States.
Moolelo Ea O Na Hawaii
at 431 (citing the Apology Resolution). Indeed, at the time of annexation, Native Hawaiians did not have an opportunity to vote on whether they favored annexation by the United States. Jon M. Van Dyke,
The Political Status of the Native Hawaiian People,
17 Yale L. & Pol'y Rev. 95, 103 (1998).

The Hawaiian Organic Act, enacted in 1900, established the Territory of Hawaii, extended the U.S. Constitution to the territory, placed ceded lands under United States control, and directed the use of proceeds from those lands to benefit the inhabitants of Hawaii. Act of Apr. 30, 1900, 31 Stat. 141 (Organic Act).

Hawaii was a U.S. territory for six decades prior to becoming a State, during which time the Hawaiian government's “English-mainly” policy of the late 1850s was replaced by the territorial government's policy of “English-only” and outright suppression of the Hawaiian language in public schools.
See
Paul F. Lucas,
E Ola Mau Kakou I Ka Olelo Makuahine: Hawaiian Language Policy and the Courts,
34 Hawaiian J. Hist. 1 (2000);
see also
Kuykendall,
The Hawaiian Kingdom Vol. I
at 360-62.
See generally
Maenette K.P. Ah Nee Benham & Ronald H. Heck,
Culture and Educational Policy in Hawaii: The Silencing of Native Voices
ch. 3 (1998);
Native Hawaiian Law: A Treatise
at 1259-72 (Melody Kapilialoha MacKenzie ed., 2015). But various entities connected to the Kingdom of Hawaii adopted other methods of continuing their internal governance and social cohesion. Specifically, the Royal Societies, the Bishop Estate (now Kamehameha Schools), the Alii trusts, and civic clubs are organizations, each with direct ties to their royal Native Hawaiian founders, and are prime examples of Native Hawaiians' continuing efforts to keep their culture, language, governance, and community alive.
See Moolelo Ea O Na Hawaii
at 560-63;
id.,
appendix 4. Indeed, post-annexation, Native Hawaiians maintained their separate identity as a single distinct community through a wide range of cultural, social, and political institutions, as well as through efforts to develop programs to provide governmental services to Native Hawaiians. For example, Ahahui Puuhonua O Na Hawaii (the Hawaiian Protective Association) was an organization formed in 1914 under the leadership of Prince Jonah Kuhio Kalanianaole (Prince Kuhio) alongside other Native Hawaiian political leaders. Its principal purposes were to maintain unity among Native Hawaiians, protect Native Hawaiian interests (including by lobbying the territorial legislature), and promote the education, health, and economic development of Native Hawaiians. It was organized “for the sole purpose of protecting the Hawaiian people and of conserving and promoting the best things of their tradition.” Hawaiian Homes Commission Act, 1920: Hearing on H.R. 13500 Before the S. Comm. on Territories, 66th Cong., 3d Sess. 44 (1920) (statement of Rev. Akaiko Akana).
See generally Moolelo Ea O Na Hawaii
at 501-07. The Association established twelve standing committees, published a newspaper, undertook dispute resolution, promoted the education and the social welfare of the Native Hawaiian community, and developed the framework that eventually became the Hawaiian Homes Commission Act (HHCA). In 1918, Prince Kuhio, who served as the Territory of Hawaii's Delegate to Congress, and other prominent Hawaiians founded the Hawaiian Civic Clubs, whose goal was “to perpetuate the language, history, traditions, music, dances and other cultural traditions of Hawaii.” McGregor,
Aina Hoopulapula: Hawaiian Homesteading,
24 Hawaiian J. of Hist. 1, 5 (1990). The Clubs' first project was to secure enactment of the HHCA in 1921 to provide for the welfare of the Native Hawaiian people by setting aside and protecting Hawaiian home lands.

(B) Congress's Recognition of Native Hawaiians as a Political Community

In a number of enactments, Congress expressly identified Native Hawaiians as “a distinct and unique indigenous people with a historical continuity to the original inhabitants of the Hawaiian archipelago,” Native Hawaiian Health Care Improvement Act, 42 U.S.C. 11701(1);
accord
Native Hawaiian Education Act, 20 U.S.C. 7512(1), with whom the United States has a “special” “trust” relationship, 42 U.S.C. 11701(15), (16), (18), (20); 20 U.S.C. 7512(8), (10), (11), (12). And when enacting Native Hawaiian statutes, Congress expressly stated in accompanying legislative findings that it was exercising its plenary power over Indian affairs: “The authority of the Congress under the United States Constitution to legislate in matters affecting the aboriginal or indigenous peoples of the United States includes the authority to legislate in matters affecting the native peoples of Alaska and Hawaii.” Native Hawaiian Health Care Improvement Act, 42 U.S.C. 11701(17);
see
H.R. Rep. No. 66-839, at

11 (1920) (finding constitutional precedent for the HHCA “in previous enactments granting Indians . . . special privileges in obtaining and using the public lands”);
see also
Native Hawaiian Education Act, 20 U.S.C. 7512(12)(B). Indeed, since Hawaii's admission to the United States, Congress has enacted dozens of statutes on behalf of Native Hawaiians. For example, Congress:

• Established special Native Hawaiian programs in the areas of health care, education, loans, and employment.
See, e.g.,
Native Hawaiian Health Care Improvement Act of 1988, 42 U.S.C. 11701-11714; Native Hawaiian Education Act, 20 U.S.C. 7511-7517; Workforce Investment Act of 1998, 29 U.S.C. 3221; Native American Programs Act of 1974, 42 U.S.C. 2991-2992.

• Enacted statutes to study and preserve Native Hawaiian culture, language, and historical sites.
See, e.g.,
Kaloko-Honokokau National Park Re-establishment Act, 16 U.S.C. 396d(a); Native American Languages Act, 25 U.S.C. 2901-2906; National Historic Preservation Act of 1966, 54 U.S.C. 302706.

• Extended to the Native Hawaiian people many of “the same rights and privileges accorded to American Indian, Alaska Native, Eskimo, and Aleut communities” by classifying Native Hawaiians as “Native Americans” under numerous Federal statutes. Native Hawaiian Health Care Improvement Act, 42 U.S.C. 11701(19);
accord
Native Hawaiian Education Act, 20 U.S.C. 7512(13);
see, e.g.,
American Indian Religious Freedom Act, 42 U.S.C. 1996-1996a.
See generally
Native Hawaiian Education Act, 20 U.S.C. 7512(13) (noting that “[t]he political relationship between the United States and the Native Hawaiian people has been recognized and reaffirmed by the United States, as evidenced by the inclusion of Native Hawaiians” in many statutes);
accord
Hawaiian Homelands Homeownership Act, 114 Stat. 2874-75, 2968-69 (2000).

These more recent enactments followed Congress's enactment of the HHCA, a Federal law that designated tracts totaling approximately 200,000 acres on the different islands for exclusive homesteading by eligible Native Hawaiians. Act of July 9, 1921, 42 Stat. 108;
see also Rice,
528 U.S. at 507 (HHCA's stated purpose was “to rehabilitate the native Hawaiian population”) (citing H.R. Rep. No. 66-839, at 1-2 (1920));
Moolelo Ea O Na Hawaii
at 507-09, 520-35. The HHCA was enacted in response to the precipitous decline in the Native Hawaiian population since Western contact; by 1919, the Native Hawaiian population declined by some estimates from several hundred thousand in 1778 to only 22,600. 20 U.S.C. 7512(7). Delegate Prince Kuhio, Native Hawaiian politician and Hawaiian Civic Clubs co-founder John Wise, and U.S. Secretary of the Interior Franklin Lane urged Congress to set aside land to “rehabilitate” and help Native Hawaiians reestablish their traditional way of life.
See
H.R. Rep. No. 66-839, at 4 (statement of Secretary Lane) (“One thing that impressed me was the fact that the natives of the islands, who are our wards, I should say, and for whom in a sense we are trustees, are falling off rapidly in numbers and many of them are in poverty”). Other HHCA proponents repeatedly referred to Native Hawaiians as a “people” (at times, as a “dying people” or a “noble people”).
See, e.g.,
H.R. Rep. No. 66-839, at 2-4 (1920);
see also
59 Cong. Rec. 7453 (1920) (statement of Delegate Prince Kuhio) (“[I]f conditions continue to exist as they do today . . . , my people . . . will pass from the face of the earth.”). Congress found constitutional precedent for the HHCA in previous enactments addressing Indian rights in using public lands, H.R. Rep. No. 66-839, at 11, and has since acknowledged that the HHCA “affirm[ed] the trust relationship between the United States and the Native Hawaiians.” 42 U.S.C. 11701(13);
accord
20 U.S.C. 7512(8).

In 1938, Congress again exercised its trust responsibility by preserving Native Hawaiians' exclusive fishing rights in the Hawaii National Park. Act of June 20, 1938, ch. 530, sec. 3(a), 52 Stat. 784.

In 1959, as a condition of statehood, the Hawaii Admission Act contained two provisions expressly recognizing Native Hawaiians and requiring the State of Hawaii to manage lands for the benefit of the indigenous Native Hawaiian people. Act of March 18, 1959, 73 Stat. 4 (Admission Act). First, the Federal Government required the State to adopt the HHCA as a provision of its constitution, which effectively ensured continuity of the Hawaiian home lands program.
Id.
sec. 4, 73 Stat. 5. Second, it required the State to manage a Congressionally mandated public land trust for specific purposes, including the betterment of Native Hawaiians.
Id.
sec. 5(f), 73 Stat. 6 (requiring that lands transferred to the State be held by the State “as a public trust . . . for [among other purposes] the betterment of the conditions of native Hawaiians, as defined in the [HHCA], as amended”). In addition, the Federal Government maintained an oversight role with respect to the home lands.
See
Admission Act sec. 4; Hawaiian Home Lands Recovery Act (HHLRA), Act of November 2, 1995, 109 Stat. 357. Congress again recognized in more recent statutes that “Native Hawaiians have a cultural, historic, and land-based link to the indigenous people who exercised sovereignty over the Hawaiian Islands, and that group has never relinquished its claims to sovereignty or its sovereign lands.” Native Hawaiian Education Act, 20 U.S.C. 7512(12)(A);
accord
Hawaiian Homelands Homeownership Act, 114 Stat. 2968 (2000); Native Hawaiian Health Care Improvement Act, 42 U.S.C. 11701(1) (“The Congress finds that: Native Hawaiians comprise a distinct and unique indigenous people with a historical continuity to the original inhabitants of the Hawaiian archipelago whose society was organized as a Nation prior to the arrival of the first nonindigenous people in 1778.”);
see also
Hawaiian Homelands Homeownership Act, 114 Stat. 2966 (2000); 114 Stat. 2872, 2874 (2000); Consolidated Appropriations Act, 118 Stat. 445 (2004) (establishing the U.S. Office of Native Hawaiian Relations). Notably, in 1993, Congress enacted the Apology Resolution to acknowledge the 100th anniversary of the overthrow of the Kingdom of Hawaii and to offer an apology to Native Hawaiians. In that Resolution, Congress acknowledged that the overthrow of the Kingdom of Hawaii resulted in the suppression of Native Hawaiians' “inherent sovereignty” and deprived them of their “rights to self-determination,” and that “long-range economic and social changes in Hawaii over the nineteenth and early twentieth centuries have been devastating to the population and to the health and well-being of the Hawaiian people.” It further recognized that “the Native Hawaiian people are determined to preserve, develop, and transmit to future generations their ancestral territory and their cultural identity in accordance with their own spiritual and traditional beliefs, customs, practices, language, and social institutions.” Apology Resolution at 1512-13;
see
Native Hawaiian Education Act, 20 U.S.C. 7512(20); Native Hawaiian Health Care Improvement Act, 42 U.S.C. 11701(2). In light of those findings, Congress “express[ed] its commitment to acknowledge the ramifications of the overthrow of the Kingdom of Hawaii, in order to provide a proper foundation for reconciliation between the United States and the Native Hawaiian people.” Apology Resolution at 1513. Congress also urged the President of the United States to “support reconciliation efforts

between the United States and the Native Hawaiian people.”
Id.
at 1511. These Congressional findings and other Congressional actions demonstrate that indigenous Hawaiians, like numerous tribes in the continental United States, have both an historical and existing cohesive political and social existence, derived from their inherent sovereign authority, which has survived despite repeated external pressures to abandon their way of life and assimilate into mainstream American society.

The Executive Branch also made findings and recommendations following a series of hearings and meetings with the Native Hawaiian community in 1999, when the U.S. Departments of the Interior and of Justice issued, “From Mauka to Makai: The River of Justice Must Flow Freely,” a report on the reconciliation process between the Federal Government and Native Hawaiians. The report found that “the injustices of the past have severely damaged the culture and general welfare of Native Hawaiians,” and that exercising self-determination over their own affairs would enable Native Hawaiians to “address their most pressing political, health, economic, social, and cultural needs.” Department of the Interior & Department of Justice,
From Mauka to Makai
at 4, 46-48, 51 (2000) (citing Native Hawaiians' poor health, poverty, homelessness, and high incarceration rates, among other socioeconomic impacts). The report ultimately recommended as its top priority that “the Native Hawaiian people should have self-determination over their own affairs within the framework of Federal law.”
Id.
at 3-4.

Congress also found it significant that the State of Hawaii “recognizes the traditional language of the Native Hawaiian people as an official language of the State of Hawaii, which may be used as the language of instruction for all subjects and grades in the public school system,” and “promotes the study of the Hawaiian culture, language, and history by providing a Hawaiian education program and using community expertise as a suitable and essential means to further the program.” Native Hawaiian Education Act, 20 U.S.C. 7512(21);
see also
Native Hawaiian Health Care Improvement Act, 42 U.S.C. 11701(3) (continued preservation of Native Hawaiian language and culture). Congress's efforts to protect and promote the traditional Hawaiian language and culture demonstrate that it repeatedly recognized a continuing Native Hawaiian community. In addition, at the State level, recently enacted laws mandated that members of certain state councils, boards, and commissions complete a training course on Native Hawaiian rights, and approved traditional Native Hawaiian burial and cremation customs and practices.
See
Act 169, Sess. L. Haw. 2015; Act 171, Sess. L. Haw. 2015. These State actions similarly reflect recognition by the State government of a continuing Native Hawaiian community.

Congress consistently enacted programs and services expressly and specifically for the Native Hawaiian community that are in many respects analogous to, but separate from, the programs and services that Congress enacted for federally-recognized tribes in the continental United States. As Congress explained, it “does not extend services to Native Hawaiians because of their race, but because of their unique status as the indigenous peoples of a once sovereign nation as to whom the United States has established a trust relationship.” Hawaiian Homelands Homeownership Act, 114 Stat. 2968 (2000). Thus, “the political status of Native Hawaiians is comparable to that of American Indians and Alaska Natives.” Native Hawaiian Education Act, 20 U.S.C. 7512(12)(B), (D). Congress's treatment of Native Hawaiians flows from that political status of the Native Hawaiian community.

Congress, under its plenary authority over Indian affairs, repeatedly acknowledged its special relationship with the Native Hawaiian community since the overthrow of the Kingdom of Hawaii more than a century ago. Congress concluded that it has a trust obligation to Native Hawaiians in part because it bears responsibility for the overthrow of the Kingdom of Hawaii and suppression of Native Hawaiians' sovereignty over their land. But the Federal Government has not maintained a formal government-togovernment relationship with the Native Hawaiian community as an organized, sovereign entity. Reestablishing a formal government-to-government relationship with a reorganized Native Hawaiian sovereign government would facilitate Federal agencies' ability to implement the established relationship between the United States and the Native Hawaiian community through interaction with a single, representative governing entity. Doing so would strengthen the self-determination and self-governance of Native Hawaiians and facilitate the preservation of their language, customs, heritage, health, and welfare. This interaction is consistent with the United States government's broader policy of advancing Native communities and enhancing the implementation of Federal programs by implementing those programs in the context of a formal government-to-government relationship.

Consistent with the HHCA, which is the first Congressional enactment clearly recognizing the Native Hawaiian community's special relationship with the United States, Congress requires Federal agencies to consult with Native Hawaiians under several Federal statutes.
See, e.g.,
the National Historic Preservation Act of 1966, 54 U.S.C. 302706; the Native American Graves Protection and Repatriation Act, 25 U.S.C. 3002(c)(2), 3004(b)(1)(B). And in 2011, the Department of Defense established a consultation process with Native Hawaiian organizations when proposing actions that may affect property or places of traditional religious and cultural importance or subsistence practices.
See
U.S. Department of Defense Instruction Number 4710.03: Consultation Policy with Native Hawaiian Organizations (2011). Other statutes specifically related to implementation of the Native Hawaiian community's special trust relationship with the United States affirmed the continuing Federal role in Native Hawaiian affairs, such as the Hawaiian Home Lands Recovery Act (HHLRA), 109 Stat. 357, 360 (1995). The HHLRA also authorized a position within the Department to discharge the Secretary's responsibilities for matters related to the Native Hawaiian community. And in 2004, Congress provided for the Department's Office of Native Hawaiian Relations to effectuate and implement the special legal relationship between the Native Hawaiian people and the United States; to continue the reconciliation process set out in 2000; and to assure meaningful consultation before Federal actions that could significantly affect Native Hawaiian resources, rights, or lands are taken.
See
Consolidated Appropriations Act, 118 Stat. 445-46 (2004).

(C) Actions by the Continuing Native Hawaiian Community

As discussed above, Native Hawaiians were active participants in the political life of the Kingdom of Hawaii, and this activity continued following the overthrow through coordinated resistance to annexation and a range of other organized forms of political and social organizations.
See generally
Silva,
Aloha Betrayed;
Silva, 1 Oiwi: A Native Hawaiian Journal 40 (examining Hawaiian-language print media and documenting the organized Native Hawaiian resistance to annexation); Silva,

I Ku Mau Mau: How Kanaka

Maoli Tried to Sustain National Identity Within the United States Political System

(documenting mass meetings, petitions, and citizen testimonies by Native Hawaiian political organizations during and after the annexation period). The Native Hawaiian community maintained its cohesion and its distinct political voice through the twentieth century to the present day. Through a diverse group of organizations that includes, for example, the Hawaiian Civic Clubs and the various Hawaiian Homestead Associations, Native Hawaiians deliberate and express their views on issues of importance to their community, some of which are discussed above.
See generally Moolelo Ea O Na Hawaii
at 535-55;
see id.
at 606-30 & appendix 4 (listing organizations, their histories, and their accomplishments). Native Hawaiians' organized action to advance Native Hawaiian self-determination resulted in the passage of a set of amendments to the State Constitution in 1978 to reaffirm the “solemn trust obligation and responsibility to native Hawaiians” by providing additional protection and recognition of Native Hawaiian interests—a key example of political action in the community. Haw. Rev. Stat. 10-1(a) (2016). Those amendments established the Office of Hawaiian Affairs (OHA), which administers trust monies to benefit the Native Hawaiian community and generally promotes Native Hawaiian affairs, Hawaii Const. art. XII, secs. 4-6, and provided for recognition of certain traditional and customary legal rights of Native Hawaiians,
id.
art. XII, sec. 7. The amendments reflected input from broad segments of the Native Hawaiian community, as well as others, who participated in statewide discussions of proposed options.
See
Noelani Goodyear-Kaopua, Ikaika Hussey & Erin Kahunawaikaala Wright,
A Nation Rising: Hawaiian Movements for Life, Land, and Sovereignty
(2014).

There are numerous additional examples of active engagement within the community on issues of self-determination and preservation of Native Hawaiian culture and traditions: Ka Lahui Hawaii, a Native Hawaiian self-governance initiative, which organized a constitutional convention resulting in a governing structure with elected officials and governing documents; the Hui Naauao Sovereignty and Self-Determination Community Education Project, a coalition of over 40 Native Hawaiian organizations that worked together to educate Native Hawaiians and the public about Native Hawaiian history and self-governance; the 1988 Native Hawaiian Sovereignty Conference, where a resolution on self-governance was adopted; the Hawaiian Sovereignty Elections Council, a State-funded entity, and its successor, Ha Hawaii, a nonprofit organization, which helped hold an election and convene
Aha Oiwi Hawaii,
a convention of Native Hawaiian delegates to develop a constitution and create a government model for Native Hawaiian self-determination; and efforts resulting in the creation and future transfer of the Kahoolawe Island reserve to “the sovereign native Hawaiian entity,”
see
Haw. Rev. Stat. 6K-9 (2016). Moreover, the community's continuing efforts to integrate and develop traditional Native Hawaiian law, which Hawaii state courts recognize and apply in various family-law and property-law disputes,
see Cohen's Handbook of Federal Indian Law
sec. 4.07[4][e], at 375-77 (2012 ed.);
see also Native Hawaiian Law: A Treatise
at 779-1165, encouraged development of traditional justice programs, including a method of alternative dispute resolution, “hooponopono,” that the Native Hawaiian Bar Association endorses.
See
Andrew J. Hosmanek,
Cutting the Cord: Hooponopono and Hawaiian Restorative Justice in the Criminal Law Context,
5 Pepp. Disp. Resol. L.J. 359 (2005);
see also
Hawaii Const. art. XII, sec. 7 (protecting the traditional and customary rights of certain Native Hawaiian tenants).

Against this backdrop of activity, Native Hawaiians and Native Hawaiian organizations asserted self-determination principles in court. Notably, in 2001, they brought suit challenging Native Hawaiians' exclusion from the Department's acknowledgment regulations (25 CFR part 83), which establish a uniform process for Federal acknowledgment of Indian tribes in the continental United States. The United States Court of Appeals for the Ninth Circuit upheld the geographic limitation in the part 83 regulations, concluding that there was a rational basis for the Department to distinguish between Native Hawaiians and tribes in the continental United States, given the unique history of Hawaii and the history of separate Congressional enactments regarding the two groups.
Kahawaiolaa
v.
Norton,
386 F.3d 1271, 1283 (9th Cir. 2004),
cert. denied,
545 U.S. 1114 (2005). The Ninth Circuit also noted the question whether Native Hawaiians “constitute one large tribe . . . or whether there are, in fact, several different tribal groups.”
Id.
The court believed it appropriate for the Department to apply its expertise to “determine whether native Hawaiians, or some native Hawaiian groups, could be acknowledged on a government-to-government basis.”
1

Id.

1
The Department carefully reviewed the
Kahawaiolaa
briefs, in which the United States suggested that Native Hawaiians have not been recognized by Congress as an Indian tribe. That suggestion, however, must be read in the context of the
Kahawaiolaa
litigation, which challenged the validity of regulations determining which Native groups should be recognized as tribes eligible for Federal Indian programs, services, and benefits and as having a formal government-to-government relationship with the United States.
See
25 CFR 83.2 (2004). As noted throughout this rule, Congress has not recognized Native Hawaiians as eligible for general Federal Indian programs, services, and benefits; and while Congress has provided separate programs, services, and benefits for Native Hawaiians in the exercise of its constitutional authority with respect to indigenous communities in the United States, Congress has not itself established a formal government-to-government relationship with the Native Hawaiian community. That matter has been left to the Executive or for later action by Congress itself. So, in context, the suggestion in the United States'
Kahawaiolaa
briefs is not inconsistent with the positions taken in this rulemaking. To the extent that other positions taken in this rulemaking may be seen as inconsistent with statements or positions of the United States in the
Kahawaiolaa
litigation, for the reasons stated in the proposed rule, and in this final rule, the views in this rulemaking reflect the Department's policy.

In recent years, Congress considered legislation to reorganize a single Native Hawaiian governing entity and reestablish a formal government-to-government relationship between it and the United States. In 2010, during the Second Session of the 111th Congress, nearly identical Native Hawaiian government reorganization bills were passed by the House of Representatives (H.R. 2314), reported out favorably by the Senate Committee on Indian Affairs (S. 1011), and strongly supported by the Executive Branch (S. 3945). In a letter to the Senate concerning S. 3945, the Secretary and the Attorney General stated: “Of the Nation's three major indigenous groups, Native Hawaiians—unlike American Indians and Alaska Natives—are the only one that currently lacks a government-to-government relationship with the United States. This bill provides Native Hawaiians a means by which to exercise the inherent rights to local self-government, self-determination, and economic self-sufficiency that other Native Americans enjoy.” 156 Cong. Rec. S10990, S10992 (Dec. 22, 2010).

The 2010 House and Senate bills provided that the Native Hawaiian government would have “the inherent powers and privileges of self-government of a native government under existing law,” including the inherent powers “to determine its own membership criteria [and] its own membership” and to negotiate and implement agreements with the United

States or with the State of Hawaii. The bills required protection of the civil rights and liberties of Natives and non-Natives alike, as guaranteed in the Indian Civil Rights Act of 1968, 25 U.S.C. 1301
et seq.,
and provided that the Native Hawaiian government and its members would not be eligible for Federal Indian programs and services unless Congress expressly declared them eligible. And S. 3945 expressly left untouched the privileges, immunities, powers, authorities, and jurisdiction of federally-recognized tribes in the continental United States.

The bills further acknowledged the existing “special political and legal relationship with the Native Hawaiian people” and established a process for “the Native Hawaiian people to exercise their inherent rights as a distinct, indigenous, native community to reorganize a single unified Native Hawaiian governing entity.” Some in Congress, however, expressed a preference for allowing the Native Hawaiian community to petition through the Department's Federal acknowledgment process.
See, e.g.,
S. Rep. No. 112-251, at 45 (2012); S. Rep. No. 111-162, at 41 (2010).

In 2011, in Act 195, the State of Hawaii expressed its support for reorganizing a Native Hawaiian government that could then be federally recognized, while also providing for State recognition of the Native Hawaiian people as “the only indigenous, aboriginal, maoli people of Hawaii.” Haw. Rev. Stat. 10H-1 (2015);
see
Act 195, sec. 1, Sess. L. Haw. 2011. In particular, Act 195 established a process for compiling a roll of qualified Native Hawaiians to facilitate the Native Hawaiian community's development of a reorganized Native Hawaiian governing entity.
See
Haw. Rev. Stat. 10H-3-4 (2015);
id.
10H-5 (“The publication of the roll of qualified Native Hawaiians . . . is intended to facilitate the process under which qualified Native Hawaiians may independently commence the organization of a convention of qualified Native Hawaiians, established for the purpose of organizing themselves.”); Act 195, secs. 3-5, Sess. L. Haw. 2011.

Act 195 established the Native Hawaiian Roll Commission to oversee the process for compiling the roll of qualified Native Hawaiians. The Commission accepted registrations from individuals subject to verification of their Native Hawaiian ancestry while also “pre-certifying” for the roll individuals who were listed on any registry of Native Hawaiians maintained by OHA. Haw. Rev. Stat. 10H-3(a)(2)(A)(iii) (2015). On July 10, 2015, the Commission certified an initial list of more than 95,000 qualified Native Hawaiians, as defined by Haw. Rev. Stat. 10H-3 (2015). In addition to the initial list, the Commission certified supplemental lists of qualified Native Hawaiians and published a compilation of the certified lists online—the Kanaiolowalu.
See Kanaiolowalu, Certified List
(Oct. 19, 2015),
http://www.kanaiolowalu.org/list
(last visited Apr. 19, 2016).

In December 2014, a private nonprofit organization known as Nai Aupuni formed to support efforts to achieve Native Hawaiian self-determination. It originally planned to hold a month-long, vote-by-mail election of delegates to an Aha, a convention to consider paths for Native Hawaiian self-governance. Nai Aupuni limited voters and delegates to Native Hawaiians and it relied on the roll compiled by the Commission to identify Native Hawaiians. Delegate voting was to occur throughout the month of November 2015, but a lawsuit by six individuals seeking to halt the election delayed those efforts.
See Akina
v.
Hawaii,
141 F. Supp. 3d 1106, 1111 (D. Haw. 2015).

Plaintiffs alleged, among other things, violations of the Fifteenth Amendment to the U.S. Constitution and the Voting Rights Act. The district court ruled that plaintiffs did not demonstrate a likelihood of success on their claims and denied their motion for a preliminary injunction. The district court also found that the scheduled election was a private election “for delegates to a private convention, among a community of indigenous people for purposes of exploring self-determination, that will not—and cannot—result in any federal, state, or local laws or obligations by itself.” The court found it was “not a state election.” Plaintiffs appealed to the Ninth Circuit.

During the appeal, Nai Aupuni mailed the delegate ballots to certified voters and the voting for delegates began. Plaintiffs filed an urgent motion for an injunction pending appeal in the Ninth Circuit, which was denied. Plaintiffs then filed an emergency application for an injunction pending appellate review in the U.S. Supreme Court on November 23, 2015. Justice Kennedy enjoined the counting of ballots on November 27, 2015. Five days later, the Supreme Court, by a vote of 5 to 4, granted plaintiffs' request and enjoined the counting of ballots and the certifying of winners, pending the final disposition of the appeal in the Ninth Circuit.
See Akina
v.
Hawaii,
136 S. Ct. 581 (2015). These orders were not accompanied by opinions. On August 29, 2016, the Ninth Circuit dismissed plaintiffs' appeal of the preliminary-injunction order as moot.
Akina
v.
Hawaii,
No. 15-17134, 2016 WL 4501686 (9th Cir. Aug. 29, 2016). The litigation remained pending in Federal district court at the time this final rule was issued.

After the Supreme Court enjoined the counting of the ballots, Nai Aupuni, citing concerns about the potential for years of delay in litigation, terminated the election and chose to never count the votes. Instead, Nai Aupuni invited all registered candidates participating in the election to participate in the Aha. During February 2016, nearly 130 Native Hawaiians took part in the Aha. On February 26, 2016, by a vote of 88-to-30 with one abstention (not all participants were present to vote), the Aha delegates voted to adopt a constitution.
See
Press Release, Native Hawaiian Constitution Adopted (Feb. 26, 2016); Constitution of the Native Hawaiian Nation (2016),
available at http://www.aha2016.com
(last visited Apr. 19, 2016). Aha participants also adopted a declaration that lays out a history of Native Hawaiian self-governance “so the world may know and come to understand our cause towards self-determination through self-governance.” Declaration of the Sovereignty of the Native Hawaiian Nation: An Offering of the Aha,
available at http://www.aha2016.com
(last visited Apr. 19, 2016).

The development of the roll of qualified Native Hawaiians, the effort to elect delegates to an Aha, and the adoption of a constitution by the Aha participants are all events independent of this rule. The purpose of the rule is to provide a process and criteria for reestablishing a formal government-to-government relationship that would enable a reorganized Native Hawaiian government to represent the Native Hawaiian community and conduct formal government-to-government relations with the United States under the Constitution and applicable Federal law. These events, however, provide context and significant evidence of the community's interest in reorganizing and reestablishing the formal government-to-government relationship that warrants the Secretary proceeding with this rulemaking process.

(III) Overview of Final Rule

The final rule reflects the totality of the comments from the Advance Notice of Proposed Rulemaking (ANPRM) and the Notice of Proposed Rulemaking (NPRM or proposed rule) stages of the rulemaking process in which commenters urged the Department to promulgate a rule announcing a procedure and criteria by which the

Secretary could reestablish a formal government-to-government relationship with the Native Hawaiian community. The Department will rely on this final rule as the sole administrative avenue for doing so with the Native Hawaiian community.

In accordance with the wishes of the Native Hawaiian community as expressed in the comments on the ANPRM and the NPRM, the final rule does not involve the Federal Government in convening a constitutional convention, in drafting a constitution or other governing document for the Native Hawaiian government, in registering voters for purposes of ratifying that document, or in electing officers for that government. Any government reorganization would instead occur through a fair and inclusive community-driven process. The Federal Government's only role is deciding whether the request satisfies the rule's requirements, enabling the Secretary to reestablish a formal government-to-government relationship with the Native Hawaiian government.

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 is optional, and Federal action would occur only upon an express formal request from the reorganized Native Hawaiian government.

Existing Federal Legal Framework.
In adopting this rulemaking, the Department must adhere to the legal framework, discussed above, that Congress already established to govern relations with the Native Hawaiian community. The existing body of legislation makes plain that Congress determined repeatedly, over a period of almost a century, that the Native Hawaiian population is an existing Native community within the scope of the Federal Government's powers over Native American affairs and with which the United States has already acknowledged or recognized an ongoing special political and trust relationship. Congress described this trust relationship, for example, in findings enacted as part of the Native Hawaiian Education Act, 20 U.S.C. 7512
et seq.,
and the Native Hawaiian Health Care Improvement Act, 42 U.S.C. 11701
et seq.
Those findings observe that “[t]hrough the enactment of the Hawaiian Homes Commission Act, 1920, Congress affirmed the special relationship between the United States and the Native Hawaiians,” 20 U.S.C. 7512(8);
see also
42 U.S.C. 11701(13), (14) (also citing a 1938 statute conferring leasing and fishing rights on Native Hawaiians). Congress then “reaffirmed the trust relationship between the United States and the Hawaiian people” in the Hawaii Admission Act, 20 U.S.C. 7512(10);
accord
42 U.S.C. 11701(16). Since then, “the political relationship between the United States and the Native Hawaiian people has been recognized and reaffirmed by the United States, as evidenced by the inclusion of Native Hawaiians” in at least ten statutes directed in whole or in part at American Indians and other native peoples of the United States such as Alaska Natives. 20 U.S.C. 7512(13);
see also
42 U.S.C. 11701(19), (20), (21) (listing additional statutes). Although a trust relationship exists, today there is no single unified Native Hawaiian government in place, and no procedure for reestablishing a formal government-to-government relationship should such a government reorganize.

Authority.
2

The authority to issue this rule is vested in the Secretary by 25 U.S.C. 2, 9, 479a, 479a-1; 43 U.S.C. 1457; Act of January 23, 2004, sec. 148, 118 Stat. 445; and 5 U.S.C. 301.
See also United States
v.
Holliday,
70 U.S. 407, 419 (1865) (“In reference to all matters of [tribal status], it is the rule of this court to follow the action of the executive and other political departments of the government, whose more special duty it is to determine such affairs.”).

2
Effective September 1, 2016, the U.S. House of Representatives' Office of the Law Revision Counsel reclassified certain statutory provisions in Title 25 cited in the proposed rule. Because the reclassified version of Title 25 is not widely available in printed form as of the date of this publication, the Department retained the statutory citations referenced in the proposed rule. The new citations and more information about the reclassification of Title 25 can be found at:
http://uscode.house.gov/editorialreclassification/t25/index.html
(last visited Sept. 14, 2016).

Congress has plenary power with respect to Indian affairs.
See Michigan
v.
Bay Mills Indian Cmty.,
134 S. Ct. 2024, 2030 (2014);
United States
v.
Lara,
541 U.S. 193, 200 (2004);
Morton
v.
Mancari,
417 U.S. 535, 551-52 (1974). Congress's plenary power over Indian affairs flows in part from the Indian Commerce Clause, which authorizes Congress to “regulate Commerce with . . . Indian Tribes.”
3

U.S. Const. art. I, sec. 8, cl. 3. “[N]ot only does the Constitution expressly authorize Congress to regulate commerce with the Indian tribes, but long continued legislative and executive usage and an unbroken current of judicial decisions have attributed to the United States . . . the power and the duty of exercising a fostering care and protection over all dependent Indian communities.”
United States
v.
Sandoval,
231 U.S. 28, 45-46 (1913). Congress's authority to aid Indian communities, moreover, extends to all such communities within the borders of the United States, “whether within its original territory or territory subsequently acquired.”
Sandoval,
231 U.S. at 46. Thus, despite differences in language, culture, religion, race, and community structure, Native people in the East,
Oneida Indian Nation
v.
County of Oneida,
414 U.S. 661 (1974), the Plains,
Kansas Indians,
72 U.S. (5 Wall.) 737 (1867), the Southwest,
Sandoval,
231 U.S. at 46, the Pacific Northwest,
Washington
v.
Yakima Indian Nation,
439 U.S. 463 (1979), and Alaska,
Organized Village of Kake
v.
Egan,
369 U.S. 60 (1962), all fall within Congress's Indian affairs power.
See
Solicitor's Opinion,
Status of Alaskan Natives,
53 I.D. 593, 605 (Decisions of the Department of the Interior, 1932) (It is “clear that no distinction has been or can be made between the Indians and other natives of Alaska so far as the laws and relations of the United States are concerned whether the Eskimos and other natives are of Indian origin or not as they are all wards of the Nation, and their status is in material respects similar to that of the Indians.”); Felix Cohen's
Handbook of Federal Indian Law,
at 401, 403 (1942 ed.) (Constitution is source of authority over Alaska Natives). So too, Congress's Indian affairs power under the Constitution extends to the Native Hawaiian community.
See
Organic Act (applying Constitution to Territory of Hawaii and declaring all persons who were citizens of the Republic of Hawaii on August 12,

1898 citizens of the United States);
see also
Nationality Act of 1940, 54 Stat. 1137, 1138 (making every “person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe” a citizen).

3
“The term “Indian” was first applied by Columbus to the native people of the New World based on the mistaken belief that he had found a sea route to India. The term has been understood ever since to refer to the indigenous people who inhabited the New World before the arrival of the first Europeans.
See Worcester
v.
Georgia,
31 U.S. (6 Pet.) 515, 544 (1832) (referring to Indians as “those already in possession [of the land], either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man”);
Johnson
v.
M'Intosh,
21 U.S. (8 Wheat.) 543, 572-74 (1823) (referring to Indians as “original inhabitants” or “natives” who occupied the New World before discovery by “the great nations of Europe”).

At the time of the Framers and in the nineteenth century, the terms “Indian,” “Indian affairs,” and “Indian tribes” were used to refer to the indigenous peoples not only of the Americas but also of the Caribbean and areas of the Pacific extending to Australia, New Zealand, and the Philippines.
See, e.g.,
W. Dampier,
A New Voyage Around the World
(1697); Joseph Banks,
The Endeavor Journal of Sir Joseph Banks
(1770); William Bligh,
Narrative of the Mutiny on the Bounty
(1790); A.F. Gardiner,
Friend of Australia
(1830); James Cook,
A Voyage to the Pacific Ocean
(1784) (referring to Native Hawaiians).

Exercising this plenary power over Indian affairs, Congress delegated to the President the authority to “prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs, and for the settlement of the accounts of Indian affairs.” 25 U.S.C. 9. Congress charged the Secretary with directing, consistent with “such regulations as the President may prescribe,” the “management of all Indian affairs and of all matters arising out of Indian relations.” 25 U.S.C. 2. And Congress expressly authorized the Secretary to supervise “public business relating to . . . Indians,” 43 U.S.C. 1457(10), and to “prescribe regulations for the government of [the Department of the Interior] . . . [and for] the distribution and performance of its business,” 5 U.S.C. 301.

Congress recognized and ratified its delegation of authority to the Secretary to recognize self-governing Native American groups in the Federally Recognized Indian Tribe List Act of 1994, 108 Stat. 4791 (the List Act).
See
25 U.S.C. 479a & note (recognizing the Secretary's authority to acknowledge that Native American groups “exist as an Indian tribe”). The Congressional findings included in the List Act confirm the ways in which an Indian tribe gains acknowledgment or recognition from the United States, including that “Indian tribes presently may be recognized by Act of Congress . . . .” 25 U.S.C. 479a note. Here, Congress recognized Native Hawaiians through more than 150 separate statutes. At the same time, the language of the List Act's definition of the term “Indian tribe” is broad and encompasses the Native Hawaiian community.
See
25 U.S.C. 479a(2).
4

4
As discussed more fully in Section (IV)(C), Native Hawaiians would not be added to the list that the Secretary is required to publish under sec. 104 of the List Act, 25 U.S.C. 479a-1(a), because Congress provides a separate suite of programs and services targeted directly to Native Hawaiians and not through programs broadly applicable to Indians in the continental United States.

Over many decades and more than 150 statutes, Congress exercised its plenary power over Indian affairs to recognize that the Native Hawaiian community exists as an Indian tribe within the meaning of the Constitution. Through these statutes, the United States maintains a special political and trust relationship with the Native Hawaiian community. Congress also charged the Secretary with the duty to “effectuate and implement the special legal relationship between the Native Hawaiian people and the United States.” Act of January 23, 2004, sec. 148, 118 Stat. 445. The Secretary's promulgation of a process and criteria by which the United States may reestablish a formal government-to-government relationship with a reorganized Native Hawaiian government whose request satisfies the rule's requirements simply acknowledges and implements what Congress already made clear on more than 150 occasions, stretching back nearly a century.
See, e.g.,
12 U.S.C. 1715z 13b; 20 U.S.C. 80q
et seq.;
20 U.S.C. 7511
et seq.;
25 U.S.C. 3001
et seq.;
25 U.S.C. 4221
et seq.;
42 U.S.C. 2991
et seq.;
42 U.S.C. 3057g
et seq.;
42 U.S.C. 11701
et seq.;
54 U.S.C. 302706; HHCA, 42 Stat. 108; Admission Act, 73 Stat. 4; Apology Resolution, 107 Stat. 1510; HHLRA, 109 Stat. 357 (1995).

Reestablishment of a formal government-to-government relationship would allow the United States to more effectively implement the special political and trust relationship that Congress established between the United States and the Native Hawaiian community and administer the Federal programs, services, and benefits that Congress created specifically for the Native Hawaiian community. As discussed above, Native Hawaiians are indigenous people of the United States who have retained inherent sovereignty and with whom Congress established a special political and trust relationship through a course of dealings over many decades. Congress repeatedly regulated the affairs of the Native Hawaiian community as it has with other Indian tribes, consistent with its authority under the Constitution. Hence, § 50.44(a) of the final rule states that upon reestablishment of the formal government-to-government relationship, the Native Hawaiian Governing Entity will have the same formal government-to-government relationship under the United States Constitution as the formal government-to-government relationship between the United States and a federally-recognized tribe in the continental United States (subject to the limitation on programs, services, and benefits appearing in § 50.44(d)), will have the same inherent sovereign governmental authorities, and will be subject to the same plenary authority of Congress,
see
§ 50.44(b).

Definitions.
Congress employs two definitions of “Native Hawaiians,” which the rule labels as “HHCA Native Hawaiians” and “Native Hawaiians.” The former is a subset of the latter, so every HHCA Native Hawaiian is by definition a Native Hawaiian. But the converse is not true: Some Native Hawaiians are not HHCA Native Hawaiians.

As used in the rule, the term “HHCA Native Hawaiian” means a Native Hawaiian individual who meets the definition of “native Hawaiian” in HHCA sec. 201(a)(7), 42 Stat. 108 (1921), and thus has at least 50 percent Native Hawaiian ancestry, regardless of whether the individual resides on Hawaiian home lands, is an HHCA lessee, is on a wait list for an HHCA lease, or receives any benefits under the HHCA. Satisfying this definition generally requires that documentation demonstrating eligibility under HHCA sec. 201(a)(7) be available, such as official Department of Hawaiian Home Lands (DHHL) records or other State records.
See
response to comment (1)(c)(1) below for further discussion. The availability of such documentation may be attested to by a sworn statement which, if false, is punishable under Federal or state law.
See, e.g.,
Haw. Rev. Stat. 710-1062 (2016). Alternatively, a sworn statement of a close family relative who is an HHCA Native Hawaiian may be used to establish that a person meets the HHCA's definition.

The term “Native Hawaiian,” as used in the rule, means an individual who is a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii. This definition flows directly from multiple Acts of Congress.
See, e.g.,
12 U.S.C. 1715z-13b(a)(6); 25 U.S.C. 3001(10); 25 U.S.C. 4221(9); 42 U.S.C. 254s(c); 42 U.S.C. 11711(3). Satisfying this definition generally requires that records documenting generation-by-generation descent be available, such as enumeration on a roll or list of Native Hawaiians certified by a State of Hawaii commission or agency under State law, where the enumeration was based on documentation that verified descent, or through current or prior enrollment as a Native Hawaiian in a Kamehameha Schools program. The availability of such documentation may be attested to by sworn statement which, if false, is punishable under state law. A Native Hawaiian may also sponsor a close family relative through a sworn statement attesting that the relative meets the definition of Native Hawaiian. Enumeration in official DHHL records demonstrating eligibility under the HHCA also would satisfy the definition of “Native Hawaiian,” as it would show that a person is an HHCA Native Hawaiian and by definition a “Native

Hawaiian” as that term is used in this rule.

In keeping with the framework created by Congress, the rule requires that, to reestablish a formal government-to-government relationship with the United States, a Native Hawaiian government must have a constitution or other governing document ratified both by a majority vote of Native Hawaiians and by a majority vote of those Native Hawaiians who qualify as HHCA Native Hawaiians. Thus, regardless of which Congressional definition is used, a majority of the voting members of the community with which Congress established a trust relationship through existing legislation will confirm their support for the Native Hawaiian government's structure and fundamental organic law.

Ratification Process.
The rule sets forth certain requirements for the process of ratifying a constitution or other governing document, including requirements that the ratification referendum be free and fair, that there be public notice before the referendum occurs, and that there be a process for ensuring that all voters are actually eligible to vote. Recognizing that the community may seek further explanation on the technical aspects of the rule, including the ratification process explained below and the use of sworn statements explained in Section (IV)(B), the Department will provide technical assistance at the request of the Native Hawaiian community.

Form of ratification.
The rule does not fix the form of the ratification referendum. For example, the ratification could be an integral part of the process by which the Native Hawaiian community adopts its governing document, or the referendum could take the form of a special election held solely for the purpose of measuring Native Hawaiian support for a governing document adopted through other means. The ratification referendum by the Native Hawaiian community need not be the same election in which the Native Hawaiian community initially adopts a governing document. The referendum could be conducted simultaneously or separately for both HHCA Native Hawaiians and Native Hawaiians. The ratification process must, however, provide separate vote tallies for (a) HHCA Native Hawaiian voters and (b) all Native Hawaiian voters.

Thresholds indicating broad-based community support.
To ensure that the ratification vote reflects the views of the whole Native Hawaiian community, the turnout in the ratification referendum must be sufficiently large to demonstrate broad-based community support. Accordingly, the rule focuses on the number who vote in favor of the governing document rather than the number of voters who participate in the ratification referendum. Specifically, the rule requires a minimum of 30,000 affirmative votes from Native Hawaiian voters, including a minimum of 9,000 affirmative votes from HHCA Native Hawaiians, as an objective measure to ensure that the vote represents the views of the Native Hawaiian community as a whole. The Secretary will only evaluate a request under this rule that meets this minimum broad-based community participation threshold.

In addition to this minimum affirmative-vote threshold, the rule creates a presumption of broad-based community support if the affirmative votes exceed 50,000, including affirmative votes from at least 15,000 HHCA Native Hawaiians. If a request meets these thresholds (50,000 and 15,000), the Secretary would be well justified in finding broad-based community support among Native Hawaiians.

Explanation of data used to support thresholds.
There is no existing applicable numerical standard for measuring broad-based community support. The Department accordingly applied its expertise to develop such a standard based on available data. For reasons explained in the proposed rule (
see
80 FR at 59124-25) and in this rule's Responses to Comments (Section (IV)(B)), the Department took a range of evidence into account, including actual data on voter turnout in the State of Hawaii, which indicates that the above thresholds are appropriate and achievable in practice. Based on the volume of comments received on the issue during the proposed-rule stage, the Department determined there is a need for further explanation about how it calculated the range of voter turnout. Described below is one of the reasoned methods the Department used to calculate the numerical thresholds for community support as well as the ranges for affirmative votes. The following method illustrates one of the many reasonable methods for calculating the required thresholds.

Summary

The Department first reviewed Native Hawaiian voter turnout numbers in Hawaii for national and State elections and determined those numbers indicate broad-based participation within Hawaii in those elections. Actual voter data from 1998 supports this conclusion. There were just over 100,000 Native Hawaiian registered voters, nearly 65,000 of whom cast ballots in that off-year (
i.e.,
non-presidential) Federal election. That same year, the total number of registered voters in Hawaii (Native Hawaiian and non-Native Hawaiian) was about 601,000, and about 413,000 of those voters cast a ballot. By the 2012 general presidential election, Hawaii's total number of registered voters (Native Hawaiian and non-Native Hawaiian) increased to about 706,000, of whom about 437,000 cast a ballot. And in the 2014 general gubernatorial election, the equivalent figures were about 707,000 and about 370,000, respectively. The Department concludes that such turnouts are a valid measure of broad-based participation in elections.

Second, to determine the turnout numbers today that indicate broad-based participation by the Native Hawaiian community, the Department estimated the percentage of Native Hawaiian voters within that general voter turnout. This estimate is based on actual voter data from 1988 to 1998 (
see
table below). The Department then adjusted that estimate to account for the growth in the number of Native Hawaiians as a percentage of the general population of Hawaii, and projected the percentage of Native Hawaiians within the reported voter turnout in recent elections in Hawaii, discussed below in more detail.

Third, the Department adjusted the estimate upward to account for out-of-State Native Hawaiian voters. These calculations result in a range of the number of anticipated Native Hawaiian voters, between 60,000 and 100,000, which the Department determined indicates broad-based community participation. The minimum required number of affirmative votes by Native Hawaiians is based on the low-end figure of this range,
i.e.,
30,000.

Finally, the Department estimated the number of affirmative votes required of HHCA Native Hawaiians to demonstrate their broad-based support as 30 percent of the Native Hawaiian threshold, since HHCA Native Hawaiian adults are approximately 30 percent of the Native Hawaiian adult population, as discussed in more detail below.

Supporting Explanation

Different approaches result in different estimates based on the broad range of evidence that the Department examined. The Department is reassured, however, by the fact that different methods produced roughly similar estimates. Weighing the available data, and applying different methods to analyze those data, the Department

concluded that it is reasonable to expect that a Native Hawaiian ratification referendum would have a turnout somewhere in the range between 60,000 and 100,000, although a figure outside that range is possible. The Department concludes that turnout within this range demonstrates broad-based participation.

Of course, turnout in a Native Hawaiian ratification referendum could diverge from Native Hawaiian turnout in a regular general election; but the year-to-year consistency of turnout figures from regular general elections in Hawaii suggests strong patterns that are likely to be replicated in a Native Hawaiian ratification referendum. Generally, more recent data are preferable to older data when projecting future turnout. If Native Hawaiian voter-turnout data for the most recent elections existed, the Department would have considered it. Because such data are not available, however, the Department analyzed the last six elections in which separate voter-turnout figures specifically for Native Hawaiians are available (1988 to 1998), as well as overall (Native Hawaiian and non-Native Hawaiian) voter-turnout figures for 1988 to 2014, the date of the most recent biennial general election. The figures are reproduced in the following table:

Year

Overall voter turnout (native Hawaiian and non-native
Hawaiian,
combined) *

Native Hawaiian voter turnout **

Native
Hawaiian
voters as % of voter turnout ***

1988
368,567
48,238
13.09

1990
354,152
49,231
13.90

1992
382,882
51,029
13.33

1994
377,011
55,424
14.70

1996
370,230
52,102
14.07

1998
412,520
64,806
15.71

2000
371,379
Unknown

2002
385,462
Unknown

2004
431,662
Unknown

2006
348,988
Unknown

2008
456,064
Unknown

2010
385,464
Unknown

2012
437,159
Unknown

2014
369,642
Unknown

* Data from the Hawaii Office of Elections, which recorded on its Web site the actual voter-turnout figures from presidential-year (
e.g.,
2012, 2008, 2004) and off-year or gubernatorial (
e.g.,
2014, 2010, 2006) general elections in Hawaii.

** For biennial general elections prior to the Supreme Court's decision in
Rice
v.
Cayetano,
528 U.S. 495 (2000), the Office of Elections' Web site shows voter-turnout figures for the State as a whole and also specifically for Native Hawaiian voters (because only Native Hawaiian voters were qualified to vote in OHA elections prior to 2000). Starting in 2000, the same source shows voter-turnout figures only for the State as a whole, that is, for the undifferentiated combination of Native Hawaiians and non-Native Hawaiians.

*** Native Hawaiian voters average 14.13 percent of the voter turnout in these six elections.

These figures show that overall turnout generally increased during the 1988-to-2014 period, although not always smoothly, and that Native Hawaiian turnout was doing the same during the 1988-to-1998 period, but at a somewhat faster rate than the overall turnout was increasing. These trends are consistent with census data showing Hawaii's population increasing and showing Hawaii's Native Hawaiian population increasing more rapidly than its non-Native population.

As the table above shows, overall turnout for this entire period (1988 to 2014) ranged from a low of 348,988 to a high of 456,064. The Native Hawaiian percentage of the overall turnout, for the years for which the table contains such data (1988 to 1998), ranged from a low of 13.1 percent in 1988 (48,238 divided by 368,567) to a high of 15.7 percent in 1998 (64,806 divided by 412,520). Since 1998, the fraction of the State's population that is Native Hawaiian grew by about 14.4 percent (this figure is derived by extrapolating from data showing Hawaii's Native Hawaiian population and Hawaii's total population in the 2000 and 2010 Federal decennial censuses).

Applying the population growth percentage of 14.4 to the voter-turnout numbers and then applying the Native Hawaiian voter-turnout percentage figures to those adjusted numbers results in a potential turnout of in-State Native Hawaiians that ranges from a low of about 52,300 (1.144 × 348,988 × 0.131= 52,300) to a high of about 81,913 (1.144 × 456,064 × 0.157 = 81,913). The Department concludes that this voter-turnout range would reflect broad-based community participation of in-State Native Hawaiians.

The rule also accounts for Native Hawaiians residing out-of-State who can participate in the ratification referendum. The out-of-State Native Hawaiian population is roughly comparable in size to the in-State Native Hawaiian population. Many Native Hawaiians living outside Hawaii remain strongly engaged with the Native Hawaiian community, as reflected in the substantial number of comments on this rule from Native Hawaiians residing out-of-State and by many Native Hawaiian civic organizations in the continental United States. Notwithstanding the number of comments, the Department concludes that the rate of participation of this population in a nation-building process is likely to be considerably lower than that of in-State Native Hawaiians.

One indicator of lower out-of-State Native Hawaiian voter turnout is the relatively low number of out-of-State Native Hawaiians on the Native Hawaiian Roll Commission's (NHRC's) Kanaiolowalu roll. Although the precise number of out-of-State Native Hawaiians on the roll is not public information, delegates were initially apportioned based on their percentage participation in the roll. Seven of the 40 delegates were apportioned to out-of-State Native Hawaiians, indicating that approximately 17.5 percent of the persons on the roll are from out-of-State, even though approximately half of all Native Hawaiians reside out-of-State. Based on these figures, the Department projected a significantly lower participation rate for out-of-State Native Hawaiians, and adjusted its in-State

voter turnout figures upward by approximately 20-percent to reflect anticipated participation by out-of-State Native Hawaiians. Since the seven out-of-State delegates are equivalent to 21.2 percent of the 33 in-State delegates, the 20-percent adjustment factor is generally consistent with available information about the likely rate of engagement of the out-of-State Native Hawaiian population (33 times 120 percent equals approximately 40 delegates total).

Some data would point to a lower adjustment factor and some would point to a higher factor. For example, in 1996 when the Hawaiian Sovereignty Elections Council (HSEC) conducted its “Native Hawaiian Vote” election, which asked Native Hawaiians whether they wished to elect delegates to propose a Native Hawaiian government, only 3.2 percent of the more than 30,000 returned ballots came from out of State. The Department did not use this low percentage, however, as it appears to be attributable, at least in part, to the fact that the HSEC's list of potential voters contained relatively few Native Hawaiians living outside Hawaii.
See
Hawaiian Sovereignty Elections Council,
Final Report
28 (Dec. 1996).

Census data is another source of information about the potential participation in, or affiliation with, the Native Hawaiian community is the distribution of speakers of the Hawaiian language. Census data from 2009 to 2013 indicate that about 29 percent of U.S. residents who speak the Hawaiian language (7,595 out of 26,205) resided out-of-State. Although use of native language indicates strong ties to the community, the Department gave the language data less weight than information on actual participation in voting or other political or nation-building processes, because official efforts in Hawaii to suppress the Hawaiian language in the early twentieth century artificially alters the significance of this distribution.

In sum, the Department concludes that 20 percent is a reasonable adjustment factor given the limits of available data and the uncertainties with respect to participation of the out-of-State population. Applying that 20-percent adjustment factor for out-of-State voters to the in-State turnout estimate (52,300 to 81,913) results in a total range (in-State plus out-of-State) from about 62,760 to about 98,296. This range is an estimate, based on one specific methodology. This range—like the ranges produced by many other methodologies, employing a broad set of data—comports with the Department's conclusion that it is reasonable to expect that a Native Hawaiian ratification referendum would have a turnout somewhere in the range between 60,000 and 100,000, although a figure outside that range is possible.

A majority vote is necessary to support a governing document. With voter turnout of 60,000, a majority would require over 30,000 affirmative votes; with a voter turnout of 100,000, a majority would require over 50,000 affirmative votes. On this basis, the Department determined that 30,000 affirmative votes (where they represent a majority of those cast) is the rule's minimum threshold for potentially showing broad-based community support, and 50,000 affirmative votes (where they represent a majority of those cast) creates a presumption of such support.

Finally, for the HHCA Native Hawaiians, each figure in the rule is exactly 30-percent of the equivalent figure for Native Hawaiians. As explained in detail below, the Department's best estimate is that adult HHCA Native Hawaiians comprise approximately 30 percent of adult Native Hawaiians. This estimate is based not on DHHL records, but on the Department's best estimate of the respective populations of the two groups.

The derivation of this 30-percent figure requires some background. Justice Breyer's concurring opinion in
Rice
v.
Cayetano,
528 U.S. 495, 526 (2000), cited the
Native Hawaiian Data Book,
which indicated that about 39 percent of the Native Hawaiian population in Hawaii in 1984 had at least 50 percent Native Hawaiian ancestry and therefore would satisfy the rule's definition of an HHCA Native Hawaiian.
See Native Hawaiian Data Book
(2015),
available at http://www.ohadatabook.com.
The 1984 data included information by age group, which suggested that the fraction of the Native Hawaiian population with at least 50 percent Native Hawaiian ancestry is likely declining over time. Specifically, the 1984 data showed that Native Hawaiians with at least 50 percent Native Hawaiian ancestry constituted about 20.0 percent of Native Hawaiians born between 1980 and 1984, about 29.5 percent of Native Hawaiians born between 1965 and 1979, about 42.4 percent of Native Hawaiians born between 1950 and 1964, and about 56.7-percent of Native Hawaiians born between 1930 and 1949. The median voter in most U.S. elections today (and for the next several years) is likely to fall into the group born between 1965 and 1979. Therefore, the current population of HHCA Native Hawaiian voters is estimated to be about 30 percent as large as the current population of Native Hawaiian voters.

The conclusion that the median voter in an election held in 2016 (and for the next several years) is likely to fall into the 1965-to-1979 group is bolstered by data from the Hawaiian Sovereignty Elections Council's 1996 “Native Hawaiian Vote.” In that election, the median voters were in their low- to mid-40s, roughly the equivalent of a voter today who was born in 1971 or 1972.
See
Hawaiian Sovereignty Elections Council,
Final Report
28 (Dec. 1996).

Although the data from DHHL records are of limited relevance here, the rule's 9,000- and 15,000-affirmative-vote thresholds appear to be in harmony with key DHHL data. According to the 2014 DHHL Annual Report there were 9,838 leases of Hawaiian home lands as of June 30, 2014, of which 8,329 were residential (the remaining leases were for either agricultural or pastoral land). Therefore, it is reasonable to assume there are at least 8,329 families living in homestead communities throughout Hawaii, in addition to the nearly 28,000 individual applicants awaiting a homestead lease award. And a significant number of HHCA Native Hawaiians likely are neither living in homestead communities nor awaiting a homestead lease award. The DHHL data therefore are consistent with the Department's conclusion that it is reasonable to expect that a ratification referendum would have a turnout of HHCA Native Hawaiians somewhere in the range between 18,000 and 30,000, although a figure outside that range is possible. And to win a majority vote in that range would require over 9,000 (for a turnout of 18,000) to over 15,000 (for a turnout of 30,000) affirmative votes from HHCA Native Hawaiians. On this basis, the Department determined that 9,000 affirmative votes from HHCA Native Hawaiians (where they represent a majority of those cast) is the rule's minimum threshold for potentially showing broad-based community support and 15,000 affirmative votes from HHCA Native Hawaiians (where they represent a majority of those cast) creates a presumption of such support.

The Native Hawaiian Government's Constitution or Governing Document.
The form or structure of the Native Hawaiian government is left for the community to decide. Section 50.13 of the rule does, however, set forth certain minimum requirements for reestablishing a formal government-to-government relationship with the United States. The constitution or other governing document of the Native Hawaiian government must provide for “periodic elections for government

offices,” describe procedures for proposing and ratifying constitutional amendments, and not violate Federal law, among other requirements.

The governing document must also provide for the protection and preservation of the rights of HHCA beneficiaries. In addition, the governing document must protect and preserve the liberties, rights, and privileges of all persons affected by the Native Hawaiian government's exercise of governmental powers in accord with the Indian Civil Rights Act of 1968, as amended (25 U.S.C. 1301
et seq.
). The Native Hawaiian community would make the decisions as to the institutions of the new government, the form of any legislative body, the means for ensuring independence of the judiciary, whether certain governmental powers would be centralized in a single body or decentralized to local political subdivisions, and other structural questions.

As to concerns that a subsequent amendment to a governing document could impair the safeguards of § 50.13, Federal law provides both defined protections for HHCA beneficiaries and specific guarantees of individual civil rights, and such an amendment could not contravene applicable Federal law. The drafters of the governing document may also choose to include additional provisions constraining the amendment process; the Native Hawaiian community would decide that question in the process of drafting and ratifying that document.

Membership Criteria.
As the Supreme Court explained, a Native community's “right to define its own membership . . . has long been recognized as central to its existence as an independent political community.”
Santa Clara Pueblo
v.
Martinez,
436 U.S. 49, 72 n.32 (1978). The rule therefore provides only minimal guidance about what the governing document must say with regard to membership criteria. HHCA Native Hawaiians must be included, non-Natives must be excluded, and membership must be voluntary and relinquishable. But the community itself would otherwise be free to decide its membership criteria.

Single Government.
The rule provides for reestablishment of relations with only a single sovereign Native Hawaiian government. This limitation is consistent with Congress's enactments with respect to Native Hawaiians, which treat members of the Native Hawaiian community as a single indigenous people. The Native Hawaiian community will decide what form of government to adopt, and may provide for political subdivisions if it so chooses. Such political subdivisions could be defined by island, by geographic districts, by historic circumstances, or otherwise in a fair and reasonable manner. Allowing for political subdivisions is consistent with principles of self-determination applicable to Native groups, and provides some flexibility should Native Hawaiians wish to provide for subdivisions with whatever degree of autonomy the community determines is appropriate, although only a single formal government-to-government relationship with the United States would be established.

The Formal Government-to-Government Relationship.
Statutes such as the National Historic Preservation Act of 1966, the Native American Graves Protection and Repatriation Act, and the HHLRA established specific processes for interaction between the Native Hawaiian community and the U.S. government. The rule provides a process and criteria for reestablishing a “formal government-to-government relationship,” which would, among other benefits, enable the Native Hawaiian community to work directly with the Federal Government to implement additional appropriate Native Hawaiian programs. The rule requires that the request to reestablish a formal government-to-government relationship reflect the will of the Native Hawaiian people through broad-based community support.

Submission and Processing of the Request.
In addition to establishing a set of criteria for the Secretary to apply in reviewing a request from a Native Hawaiian government, the rule sets out the procedure by which the Department will receive and process a request from the authorized officer of the governing body seeking to reestablish a formal government-to-government relationship. This rule includes processes for submitting a request, for public comment on any request received, and for issuing a final decision on the request. Because Congress has already acknowledged or recognized the Native Hawaiian community, the Secretary's determination in this part is limited to the process for reestablishing a formal government-to-government relationship with the Native Hawaiian Governing Entity. Additional processes are not required.

Other Provisions.
The rule also contains provisions governing technical assistance, clarifying the implementation of the formal government-to-government relationship, and addressing related issues. The rule explains that the formal government-to-government relationship with the Native Hawaiian Governing Entity would have virtually the same legal basis and structure as the formal government-to-government relationship between the United States and federally-recognized tribes in the continental United States. Accordingly, the government-to-government relationship with the Native Hawaiian Governing Entity would have very different characteristics from the government-to-government relationship that formerly existed with the Kingdom of Hawaii. The Native Hawaiian Governing Entity would remain subject to the same authority of Congress and the United States to which federally-recognized tribes in the continental United States are subject and would remain ineligible for Federal Indian programs, services, and benefits provided to Indian tribes in the continental United States and their members (including funding from the Bureau of Indian Affairs and the Indian Health Service) unless Congress expressly declared otherwise.

The rule also clarifies that neither this rulemaking nor granting a request submitted under the rule would affect the rights of HHCA beneficiaries or the status of HHCA lands. Section 50.44(f) makes clear that reestablishment of the formal government-to-government relationship does not affect the title, jurisdiction, or status of Federal lands and property in Hawaii. This provision does not affect lands owned by the State or provisions of state law.
Cf.
Haw. Rev. Stat. 6K-9 (2016) (“[T]he resources and waters of Kahoolawe shall be held in trust as part of the public land trust; provided that the State shall transfer management and control of the island and its waters to the sovereign native Hawaiian entity upon its recognition by the United States and the State of Hawaii.”). Section 50.44 also explains that the reestablished government-to-government relationship would more effectively implement statutes that specifically reference Native Hawaiians, but would not extend the programs, services, and benefits available to Indian tribes in the continental United States to the Native Hawaiian Governing Entity or its members, unless a Federal statute expressly authorizes it. These provisions also state that if the Secretary determines to grant the request to reestablish a formal government-to-government relationship, the Department will publish notice in the
Federal Register
and the determination will be effective 30 days after publication, at which time the formal government-to-government relationship will be reestablished. Individuals' eligibility for any program, service, or

benefit under any Federal law that was in effect before the final rule's effective date would be unaffected. Likewise, the rule does not affect Native Hawaiian rights, protections, privileges, immunities, and benefits under Article XII of the Constitution of the State of Hawaii. This rule would not alter the sovereign immunity of the United States or the sovereign immunity of the State of Hawaii.

(A) How the Rule Works

If a reorganized Native Hawaiian government decides to seek a formal government-to-government relationship with the United States, it must submit a written request to the Secretary, as provided in § 50.20. The request must include a written narrative with supporting documentation thoroughly addressing the elements set forth in § 50.10. If the Secretary determines that the request appears to contain these elements and is consistent with the affirmative-vote requirements set out in § 50.16(g)-(h), the Secretary will publish notice of receipt of the request in the
Federal Register
and post the request to the Department's Web site. The public will have the opportunity to comment on the request and submit evidence on whether the request meets the criteria described in § 50.16, and the requester may respond to those comments or evidence. The Secretary will review the request to determine whether it meets the criteria described in § 50.16 and is consistent with this part, along with any public comments and evidence and the requester's responses to those comments and evidence, to make a decision granting or denying the request. If the request is granted, the Secretary's decision will take effect 30 days after publication of a notice in the
Federal Register
and the requester will be identified as the Native Hawaiian Governing Entity (or the official name stated in that entity's governing document), and a formal government-to-government relationship will be reestablished with the Native Hawaiian Governing Entity as the sole representative sovereign government of the Native Hawaiian community.

(B) Major Changes

After the Department reviewed and considered public comments, it made several key clarifications and changes in this final rule (indicated below in italics). The final rule:

• Includes the Native Hawaiian community's ability to
more effectively exercise its inherent sovereignty and self-determination
as an additional purpose of the rule (§ 50.1(a));

• Adds definitions of “
sponsor,
” “
State,
” and “
sworn statement
” (§ 50.4);

•
Eliminates the U.S. citizenship requirement
(§§ 50.4; 50.12);

• Provides that the
Native Hawaiian community itself must prepare a list of eligible voters
to ratify its governing document and clarifies that
reliance on existing rolls prepared by others is optional
(§ 50.12(a));

• Clarifies means for individuals to demonstrate a right to vote in the ratification referendum,
e.g.,
individuals may use
sworn statements
for self-certification or for sponsoring a close family relative to demonstrate “HHCA Native Hawaiian” and “Native Hawaiian” status for purposes of voting in the ratification referendum (§ 50.12(b), (c));

• Increases the comment period for the public to submit comments and evidence on a request to reestablish a government-to-government relationship to
60 days,
provides the Department
20 days
after the close of that comment period to post comments/evidence to its Web site (§ 50.30), and permits the requester
60 days
to respond to any such comments/evidence (§ 50.31);

• Limits extensions of any deadline under §§ 50.30 and 50.31 to a total of
90 days,
provided that an extension request is
in writing and sets forth good cause
(§ 50.32);

• Clarifies that
if the Secretary is unable to render a decision on a request within 120 days following close of the comment periods, the Secretary will provide notice to the requester, and include an explanation of the need for more time and an estimate of when a decision will be made
(§ 50.40);

•
Delays the effective date of the Secretary's decision until 30 days after publication in the

Federal Register
(§ 50.42); and

• Further clarifies that reestablishment of the formal government-to-government relationship
does not
affect the title, jurisdiction, or status of Federal lands and property in Hawaii (§ 50.44(f)).

(C) Key Issues

The Department reviewed comments on a wide range of issues, but received significant comment on a narrow set of key issues. These issues are more fully addressed in responses to comments in Section (IV)(B) below, but are summarized here:

•
Land into trust.
The Department's ability to take land into trust for the Native Hawaiian Governing Entity is constrained by Federal law. The Indian Reorganization Act does not apply to Hawaii and therefore does not authorize the Department to take land into trust for the Native Hawaiian Governing Entity. And no other current Federal law authorizes such action.
See
Section (IV)(B).

•
Indian Gaming Regulatory Act.
The Native Hawaiian Governing Entity may not conduct gaming activities under the Indian Gaming Regulatory Act (IGRA).
See
Section (IV)(B).

•
Federally Recognized Indian Tribe List Act of 1994 (List Act).
The Native Hawaiian Governing Entity will not appear on the list of federally-recognized Indian tribes required under the List Act.
See
Section (IV)(C).

(D) Section-by-Section Analysis

This portion of the preamble previews the final rule and highlights certain aspects of the rule that may benefit from additional explanation.

Subpart A—General Provisions, Sections 50.1, 50.2, 50.3, and 50.4

These provisions establish the purpose of this rule and explain that if a Native Hawaiian government requests a formal government-to-government relationship with the United States, as described in § 50.10, such a relationship will be reestablished only if the request is granted as described in §§ 50.40 to 50.43. The general provisions also provide that the United States will reestablish a formal government-to-government relationship with only a single Native Hawaiian government.

These provisions also define key terms used throughout the rule.
Native Hawaiian community
and
Native Hawaiian
are defined in terms that encompass all the Native Hawaiians recognized by Congress, while
HHCA Native Hawaiian
is limited to Native Hawaiians as defined in the HHCA. The rule defines
Federal Indian programs, services, and benefits
separately from
Federal Native Hawaiian programs, services, and benefits
to parallel Congress's approach limiting eligibility for specific programs, services, and benefits.
Federal Indian programs, services, and benefits
include, but are not limited to, those provided by the Bureau of Indian Affairs and the Indian Health Service, which do not extend to Native Hawaiians.

Subpart B—Criteria for Reestablishing a Formal Government-to-Government Relationship, Sections 50.10, 50.11, 50.12, 50.13, 50.14, 50.15, and 50.16

These provisions collectively explain what the Native Hawaiian community must include in its request submitted under this part.

Section 50.10 sets out the elements of the request itself. Those elements include specific written narratives for

four elements, a ratified governing document that meets the requirements of § 50.13, a resolution of the Native Hawaiian governing body authorizing its officer to submit a request for a government-to-government relationship, and the officer's certification of that request. The narratives must describe: how the governing document reflects the will of the Native Hawaiian community (§ 50.11); who could participate in ratifying the governing document, and how the community distinguished HHCA Native Hawaiians from other Native Hawaiians (§ 50.12); information about the ratification referendum (§ 50.14); and information about the elections for government offices (§ 50.15). The Department respects the Native Hawaiian community's self-determination, particularly through drafting a governing document. As a result, the rule's provisions relating to the process of drafting the community's governing document provide only minimum criteria that must be satisfied for the Secretary to reestablish a formal government-to-government relationship with the community. And, while the rule text refers to “periodic elections for government offices identified in the governing document,” nothing in the rule precludes the establishment of appointed positions as well. Section 50.16 lists the eight criteria that the Secretary will consider when determining whether to reestablish a formal government-to-government relationship. The final rule makes clear that, in determining whether the request meets the criteria described in § 50.16, the Secretary may also consider whether the request is consistent with this part.
See
§§ 50.40, 50.41.

Subpart C—Process for Reestablishing a Formal Government-to-Government Relationship

This subpart addresses the procedural aspects of the rule, from the mechanics of submission to the notice-and-comment process. The final two sections, §§ 50.43 and 50.44, discuss the impact and implementation of reestablishing a formal government-to-government relationship.

The provisions of this rule are generally applicable only in response to a specific request for the reestablishment of a formal government-to-government relationship. Section 50.21 recognizes that the Department is prepared to provide technical assistance if requested. The rule does not, however, create an individual interest or cause of action allowing a challenge to the Native Hawaiian community's drafting, ratification, or implementation of a governing document, separate and apart from any proceedings that would follow the submission of a request under this part. By their terms, §§ 50.43 and 50.44 only apply following reestablishment of a formal government-to-government relationship and define the implementation of that relationship.

(IV) Public Comments on the Proposed Rule and Responses to Comments

(A) Overview

The Department actively sought public input in two stages on the rule's administrative procedure and criteria for reestablishing a formal government-to-government relationship with the Native Hawaiian community.

First, in June 2014, the Department published an ANPRM seeking input from leaders and members of the Native Hawaiian community and federally-recognized tribes in the continental United States. 79 FR 35296-303 (June 20, 2014). The ANPRM asked five threshold questions: (1) Should the Secretary propose an administrative rule that would facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community? (2) Should the Secretary assist the Native Hawaiian community in reorganizing its government, with which the United States could reestablish a government-to-government relationship? (3) If so, what process should be established for drafting and ratifying a reorganized government's constitution or other governing document? (4) Should the Secretary instead rely on the reorganization of a Native Hawaiian government through a process established by the Native Hawaiian community and facilitated by the State of Hawaii, to the extent such a process is consistent with Federal law? (5) If so, what conditions should the Secretary establish as prerequisites to Federal acknowledgment of a government-to-government relationship with the reorganized Native Hawaiian government? The Department posed 19 additional, specific questions concerning the reorganization of a Native Hawaiian government and a Federal process for reestablishing a formal government-to-government relationship. The ANPRM marked the beginning of ongoing discussions with the Native Hawaiian community, consultations with federally-recognized tribes in the continental United States, and input from the public at large.

The Department received extensive public comments on the ANPRM. The Department received general comments, both supporting and opposing the ANPRM, from individual members of the public, Members of Congress, State legislators, and community leaders.

Second, after careful review and analysis of the comments on the ANPRM, in October 2015 the Department issued a Notice of Proposed Rulemaking,
Procedures for Reestablishing a Government-to-Government Relationship with the Native Hawaiian Community,
80 FR 59113-132 (Oct. 1, 2015), setting forth an administrative procedure and criteria that the Secretary would use if the Native Hawaiian community forms a unified government that then seeks a formal government-to-government relationship with the United States. The proposed rule did not provide a process for reorganizing a Native Hawaiian government, agreeing with many ANPRM commenters that the process of drafting a constitution or other governing document and reorganizing a government should be driven by the Native Hawaiian community, not by the Federal Government. Over the course of a 90-day comment period that ended on December 30, 2015,
5

the Department again received extensive public comments, including unique public submissions and duplicate mass mailings covering a wide range of issues. The issues discussed in Section (IV)(B) encompass the range of significant issues presented in the comments on the proposed rule.

5
The comment period closed on Wednesday, December 30, 2015, at 11:59 p.m. Eastern Time. The time zone of the submissions deadline was not indicated in the
Federal Register
document (80 FR 59113, 59114), though it was indicated on
www.regulations.gov.
Additionally, the deadline occurred during a busy holiday period. The Department received 277 submissions within three business days after the comment period closed, with many of those comments arriving electronically to
part50@doi.gov
(an email address set up specifically to receive comments during the comment period) in the early-morning hours of December 31 (Eastern Time), when it was still December 30 in Hawaii. The Department kept a running tally of all comments submitted to
part50@doi.gov
after the deadline. As of January 8, 2016, the Department received four more comments to
part50@doi.gov
in addition to the 277. Given the Department's interest in considering the full range of public comments, the confusion caused by omitting time zone information in the
Federal Register
, and the volume of comments received after the published deadline, the Department determined to consider all public comments received by January 8, 2016.

Comments came from Members of Congress, Hawaii State government offices and legislators, academics, members of the public residing in Hawaii and in the continental United States, as well as individuals residing internationally. Specifically, many Native Hawaiian Civic Clubs and Native Hawaiian community, legal, cultural, and business organizations, as well as

the National Congress of American Indians, submitted comments.

Numerous commenters expressed support for the Department's proposal without suggesting any changes and requested that the Department proceed to implement the rule as quickly as possible. Commenters who expressed general support frequently stated that the rule would provide a foundation for achieving parity in Federal policy related to indigenous communities in the United States. These commenters recognized and anticipated that there would be benefits to the Native Hawaiian Governing Entity from working directly with the Federal Government to implement existing Federal programs, and listed several other perceived benefits of a government-to-government relationship, including the Native Hawaiian Governing Entity's ability to (in no particular order): (1) Acquire land and create affordable housing solutions for its members; (2) enable more direct and effective management of assets and resources by Native Hawaiians in accordance with customary and traditional practices; (3) facilitate negotiations regarding the return of land and other assets to the Native Hawaiian people; (4) formalize management agreements with Federal, State, and local governments that enhance the ability of Native Hawaiians to contribute their knowledge and expertise to care for the environment and natural resources; (5) improve Native Hawaiians' ability to strengthen and perpetuate their indigenous culture and languages; (6) access certain veterans' benefits and health services for Native Hawaiian veterans; (7) compete for certain government contracts on a government-wide basis; and (8) more effectively coordinate health services with other human services to improve the overall health and wellness of the Native Hawaiian people. Other supporters noted that a government-to-government relationship could help preserve existing Native Hawaiian Federal benefits, such as culture-based charter and language-immersion schools, scholarships, and training programs, as well as economic, housing, and health services.

Many commenters, however, expressed opposition to the rule, advocating that the Department abandon its efforts entirely. Most of these opponents argued that the United States lacks jurisdiction to promulgate a rule, is illegally occupying the Hawaiian Islands, and violated and continues to violate international law respecting what the commenters argued is Native Hawaiians' right to self-determination under international law. Others objected to any Federal process that pertains to Native Hawaiian self-determination, stating that the rule would violate the U.S. Constitution as impermissibly race-based.

All public comments received on the ANPRM and the NPRM, along with supporting documents, are available in a combined docket at
http://www.regulations.gov/#!docketDetail;D= DOI-2015-0005.

(B) Responses to Significant Public Comments on the Proposed Rule

The Department decided to proceed to the final-rule stage. As described in Section (III)(B) of this preamble, the Department made specific changes in response to public comments, including clarifications to address specific concerns. The Department appreciates the time commenters took to provide helpful information and valuable suggestions. Responses to significant comments relating to specific issues as well as comments relating to particular sections of the proposed rule follow below.

(1) Issue-Specific Response to Comment

(a) Authority

Issue:
Several commenters called into question the Department's authority to promulgate this rule and Congress's plenary authority over Native Hawaiians. The Department made no changes to the proposed rule in response to these comments.

(1)
Comment:
Several commenters questioned the Department's authority to reestablish a formal government-to-government relationship with the Native Hawaiian community, pointing out that former U.S. Senator Daniel Akaka introduced several bills that would have expressly established a government-to-government relationship between the Native Hawaiian community and the United States, but none of those bills became law. Several commenters also questioned Congress's plenary authority over Native Hawaiians.

Response:
The authority to issue this rule is vested in the Secretary by 25 U.S.C. 2, 9, 479a, 479a-1; 43 U.S.C. 1457; Act of January 23, 2004, sec. 148, 118 Stat. 445; and 5 U.S.C. 301.
See also Miami Nation of Indians of Indiana, Inc.
v.
U.S. Dep't of the Interior,
255 F.3d 342, 346 (7th Cir. 2001) (stating that recognition is an executive function requiring no legislative action). The Federal Government has authority to enter into a government-to-government relationship with the Native Hawaiian community.
See
U.S. Const. art. I, sec. 8, cl. 3 (Commerce Clause); U.S. Const. art. II, sec. 2, cl. 2 (Treaty Clause). These constitutional provisions recognize and provide the foundation for longstanding special relationships between indigenous peoples and the Federal Government, relationships that date to the earliest period of our Nation's history. When enacting Native Hawaiian statutes, Congress has expressly stated in accompanying legislative findings that it was exercising its plenary power under the Constitution over Native American affairs: “The authority of the Congress under the United States Constitution to legislate in matters affecting the aboriginal or indigenous peoples of the United States includes the authority to legislate in matters affecting the native peoples of Alaska and Hawaii.” Native Hawaiian Health Care Act, 42 U.S.C. 11701(17);
see
H.R. Rep. No. 66-839, at 11 (1920) (finding constitutional precedent for the HHCA “in previous enactments granting Indians . . . special privileges in obtaining and using the public lands”);
see also
Native Hawaiian Education Act, 20 U.S.C. 7512(12)(B), (D) (extending services to Native Hawaiians “because of their unique status as the indigenous people of a once sovereign nation” and explaining that “the political status of Native Hawaiians is comparable to that of American Indians and Alaska Natives”). Over many decades, Congress enacted more than 150 statutes recognizing and implementing a special political and trust relationship with the Native Hawaiian community. These Congressional actions establish that the community is federally “acknowledged” or “recognized” by Congress. Thus, the Native Hawaiian community has a special political and trust relationship with the United States. This final rule addresses the further and distinct issue of recognizing a government of the Native Hawaiian community for purposes of entering into a formal government-to-government relationship. The statutes cited above, in combination with the Department's existing authorities related to Indian affairs, establish the Department's authority to promulgate the final rule to confirm that the reorganized Native Hawaiian government, through which the Native Hawaiian community can conduct formal government-to-government relations with the United States, is authorized to represent the community. The Department accordingly concludes, based on these Congressional enactments and on its analysis of the record and of applicable law, that the Secretary may reinstate a formal government-to-government relationship

with a Native Hawaiian government in accordance with this rule.

(2)
Comment:
Some commenters claimed that Congress lacks plenary authority over Native Hawaiians or any Native Hawaiian governing entity, and objected to the provision of the proposed rule that indicated Congress would have such authority.

Response:
The United States strongly supports principles of self-determination and self-governance of indigenous peoples; nevertheless, if a Native Hawaiian Governing Entity is formed, that entity would exercise its retained inherent sovereign authority subject to the plenary authority of Congress.
See
Section (III) (Authority),
supra.
Additionally, to the extent these comments assert that Hawaii is not part of the United States, that assertion is incorrect. As discussed in the next response to comment, the Department is bound by Congressional enactments concerning the status of Hawaii.

(3)
Comment:
Many commenters objected to any rulemaking by the Department, indicating their belief that Hawaii was illegally annexed by the United States, that Hawaii is currently being “occupied” by the United States, and that the Kingdom of Hawaii continues to exist as a sovereign nation-state independent of the United States. Some commenters questioned whether Hawaii is properly considered to be part of the United States, suggesting the Department lacks jurisdiction to promulgate a rule.

Response:
The Department made no changes to the rule in response to these comments, which address the validity of the relationship between the United States and the State of Hawaii. To the extent commenters claim that Hawaii is not a State within United States, the Department rejects that claim. Congress admitted Hawaii to the Union as the 50th State. The Admission Act, which was consented to by the State of Haw

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-23720. Public record. Not legal advice.