Milestone step

LIHUE — The U.S. Department of the Interior announced Tuesday a proposal to create an administrative process by which a Native Hawaiian government could seek a formal government-to-government relationship with the United States. 

Under the proposal, the Native Hawaiian community — not the federal government — would decide whether to reorganize a native government, what form that government would take and whether it would seek a government-to-government relationship with the U.S.

All told, there are 566 American Indian and Alaska Native tribes that have a federally recognized form of self-governance. This privilege, however, has never before been extended to Native Hawaiians.

“The United States has a long-standing policy of supporting self-governance for native peoples, yet the benefits of the government-to-government relationship have long been denied to Native Hawaiians, one of our nation’s largest indigenous communities,” said U.S. Secretary of the Interior Sally Jewell in a prepared statement. “Today’s proposal is testament to the Obama Administration’s strong support for our nation’s native peoples’ right to self-determination.”

Adding to the momentum is the fact that one of the biggest elections for Native Hawaiian self-governance is set to take place in November. The nation building process is being organized by Na’i Aupuni, a private nonprofit.

Nearly 100,000 Hawaiians have been certified by the governor-appointed Native Hawaiian Roll Commission to vote in a private election for delegates who will gather in Honolulu this winter at a constitutional convention. The governing document these delegates write will form the foundation of a new government by and for Native Hawaiians.

The Native Hawaiian community has not had a formal government since the overthrow of the Hawaiian kingdom in 1893.

Robin Danner, the Roll Commission’s Kauai commissioner, said the opportunity to federally recognize the native government Hawaiians are working to restore is monumental.

“Although we have been expecting this next step, the reality of it actually happening is quite incredible,” Danner said.

Citizens of a federally recognized native government would be eligible for a special kind of dual citizenship. They would be able to become citizens of whatever form of native governance the Hawaiian community decides to create while retaining the rights and responsibilities of American citizenship.

“This is a groundbreaking move for the Native Hawaiian community,” said Kanani Kagawa Fu, a Hanamaulu resident who is seeking eligibility to campaign as a delegate in the upcoming Na’i Aupuni election. “We’re kind of being given the green light, like, ‘Here, go forward with the process.’”

Not all Hawaiians, however, are supportive of federal recognition. Some want nothing to do with the U.S. government that overthrew Queen Liliuokalani in 1893.

Congress formally apologized for the overthrow of the Hawaiian kingdom in 1993 in a joint resolution that acknowledges that the overthrow of Hawaii was “illegal” and expressed “its deep regret to the Native Hawaiian people” and its support for reconciliation efforts with Native Hawaiians. The resolution has fueled the desires of some Hawaiians seeking to reinstate the Hawaiian kingdom and do away with the U.S.

Most of the commenters who objected to the creation of a pathway for federal recognition of a Native Hawaiian government during a public comment period sponsored by the DOI last year based their opposition on claims that the U.S. violated and continues to violate international law by illegally occupying the Hawaiian islands, according to a DOI statement.

The majority of the 5,000 commenters, the DOI said, voiced support for a federal recognition process.

“We’ve listened to the feedback we received during the public meetings and in writing and worked to improve the proposal to reflect those comments,” Jewell said. “We appreciate the many voices on this topic and look forward to hearing from the public on this proposal.”

Election under fire

The rule proposal makes clear the DOI’s stance that government-to-government relationships with native peoples do not constitute “race-based” discrimination. Rather, they are political classifications.

This is important because the planned Na’i Aupuni election is under fire by a lawsuit that argues it is unconstitutional to restrict voter eligibility by race.

The suit was brought forward by the conservative interest group Judicial Watch and the public policy think tank Grassroot Institute, which is based in Honolulu.

Keli’i Akina, Grassroot Institute’s president, said the DOI proposal is an example of executive overreach.

“The DOI is attempting an end run around Congress, which has made it clear over the last 15 years that it is not in favor of treating Hawaiians as a single governmental entity,” Akina said. “The problem is that Native Hawaiians are not just one group. They are represented by (The Office of Hawaiian Affairs) and Na’i Aupuni on one hand and independence activists on the other and, for the most part, U.S. citizens who are quite content to be U.S. citizens. Therefore, the Department of Interior violated the individual rights and liberties of Native Hawaiians by lumping them into a single group.”

The Grassroot Institute is concerned that the DOI’s proposal could increase racial tension throughout the state, according to Akina.

Na‘i Aupuni said in a prepared statement that the proposed rule validates its legal position that the nonprofit’s process of assembling a Native Hawaiian role does not violate the U.S. Constitution or federal law.

Gov. David Ige said in a prepared statement that he supports the DOI’s efforts to move forward with a pathway to federally recognize Native Hawaiian self-governance.

Hawaii’s congressional delegation also released statements voicing their support of Native Hawaiians’ right to federal recognition.

What fed recognition looks like

If a government-to-government relationship between the U.S. and a Native Hawaiian government were to be re-established, DOI officials say it could empower the Hawaiian community to preserve its culture and traditions while also promoting the education, health and economic development of its people.

The proposed rule would require a majority of those Hawaiians who cast a ballot to be in support of the government in order for it to gain federal recognition. Eligible members of that government must also be free to opt out of the voting process as well as membership in the government.

The DOI anticipates that a Native Hawaiian government would not fall within the definition of an Indian tribe, given the history of separate Congressional enactments regarding the two groups and the unique history of Hawaii. Because of that distinction, and because the state of Hawaii prohibits gambling, the department said it would not likely be permitted to conduct gaming in Hawaii.

A provision makes clear that the promulgation of this rule would not diminish any right, protection or benefit granted to Hawaiians by the Hawaiian Homes Commission Act.

“What remains in question,” the rule proposal reads, “is how the department could determine whether a Native Hawaiian government that comes forward legitimately represents that community and therefore is entitled to conduct relations with the United States on a formal government-to-government basis. This question is complex, and the department welcomes public comment as to whether any additional elements should be included in the process that the department proposes.”

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