[Federal Register Volume 79, Number 119 (Friday, June 20, 2014)]
[Proposed Rules]
[Pages 35296-35303]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-14430]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 50

[145D0102DM DS61400000 DLSN00000.000000 DX.61401]
RIN 1090-AB05


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

AGENCY: Office of the Secretary, Department of the Interior.

ACTION: Advance notice of proposed rulemaking; solicitation of 
comments.

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SUMMARY: The Secretary of the Interior (Secretary) is considering 
whether to propose an administrative rule that would facilitate the 
reestablishment of a government-to-government relationship with the 
Native Hawaiian community, to more effectively implement the special 
political and trust relationship that Congress has established between 
that community and the United States. The purpose of this advance 
notice of proposed rulemaking (ANPRM) is to

[[Page 35297]]

solicit public comments on whether and how the Department of the 
Interior should facilitate the reestablishment of a government-to-
government relationship with the Native Hawaiian community. In this 
ANPRM, the Secretary also announces several public meetings in Hawaii 
and several consultations with federally recognized tribes in the 
continental United States to consider these issues.

DATES: Comments must be submitted on or before August 19, 2014.

ADDRESSES: You may submit comments on this ANPRM by any of the methods 
listed below.
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions on the Web site for submitting comments.
    2. U.S. mail, courier, or hand delivery: Office of the Secretary, 
Department of the Interior, Room 7329, 1849 C Street NW., Washington, 
DC 20240.

FOR FURTHER INFORMATION CONTACT: John Strylowski, Office of the 
Secretary, telephone (202) 208-3071 (not a toll-free number), john--
strylowski @ios.doi.gov.

SUPPLEMENTARY INFORMATION: 

Public Comment

    Please direct all comments to Regulation Identifier Number 1090-
AB05. The Department of the Interior intends to include all comments 
received in the public docket without change, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means the Department of the 
Interior will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to the Department of the Interior without going through http://www.regulations.gov, your email address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, the Department of the Interior recommends that you include 
your name and other contact information in the body of your comment and 
with any disk or CD-ROM you submit. If the Department of the Interior 
cannot read your comment due to technical difficulties and cannot 
contact you for clarification, the Department of the Interior may not 
be able to consider your comment. Electronic files should avoid the use 
of special characters, avoid any form of encryption, and be free of any 
defects or viruses.
    The Secretary is considering whether to propose an administrative 
rule that would facilitate the reestablishment of a government-to-
government relationship with the Native Hawaiian community. We are 
interested in hearing from leaders and members of the Native Hawaiian 
community and of federally recognized tribes in the continental United 
States. We also welcome comments and information from the State of 
Hawaii and its agencies, other government agencies, and other members 
of the public.
    To be most useful, and most likely to inform decisions on the 
content of a potential administrative rule, comments should:
    --Be specific;
    --Be substantive;
    --Explain the reasoning behind the comments; and
    --Address the issues outlined in the ANPRM.
    For the purpose of this ANPRM, we are seeking input solely on 
questions related to a potential administrative rule to facilitate the 
reestablishment of a government-to-government relationship with the 
Native Hawaiian community. Because promulgating a rule would not (1) 
alter the fundamental nature of the political and trust relationship 
established by Congress between the United States and the Native 
Hawaiian community, (2) authorize compensation for past wrongs, or (3) 
have any direct impact on the status of the Hawaiian home lands, we are 
not seeking comments on those topics.
    Furthermore, at this time, we are not seeking comments on what the 
contents of a reorganized Native Hawaiian government's constitution or 
other governing document (if one were adopted) might include, how that 
Native Hawaiian government might be structured, or what powers that 
Native Hawaiian government might exercise.
    Rather, we are seeking comments solely on five threshold questions:
     Should the Secretary propose an administrative rule that 
would facilitate the reestablishment of a government-to-government 
relationship with the Native Hawaiian community?
     Should the Secretary assist the Native Hawaiian community 
in reorganizing its government, with which the United States could 
reestablish a government-to-government relationship?
     If so, what process should be established for drafting and 
ratifying a reorganized Native Hawaiian government's constitution or 
other governing document?
     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?
     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?
    In addition to receiving comments through the Federal eRulemaking 
Portal, U.S. mail, courier services, and hand delivery, we will conduct 
a series of public meetings on the islands of Hawaii, Kauai, 
L[amacr]nai, Maui, Molokai, and Oahu, and a series of in-person 
consultations with federally recognized tribes in the continental 
United States. We will announce locally the time and place of each 
meeting and will give public notice of each tribal consultation. At 
these meetings and consultations, we will accept both oral and written 
communications. We strongly encourage Native Hawaiian organizations and 
federally recognized tribes in the continental United States to hold 
their own meetings to develop comments on the issues outlined in this 
ANPRM, and to share the outcomes of those meetings with us.
    All of the citations listed in this ANPRM will be available on the 
Department of the Interior's Office of Native Hawaiian Relations' Web 
site at http://www.doi.gov/ohr/.

Background

    The United States has a unique political and trust relationship 
with federally recognized tribes across the country, as set forth in 
the United States Constitution, treaties, statutes, Executive Orders, 
administrative regulations, and judicial decisions. The Federal 
government's relationship with these tribes is guided by a trust 
responsibility--a long-standing, paramount commitment to protect their 
unique rights and ensure their well-being, while respecting their 
tribal 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, has developed processes 
to help tribes in the continental United States to reorganize their 
governments and to establish government-to-government

[[Page 35298]]

relationships with the United States. Strong tribal governments have 
proved critical to tribes' capacity to exercise their inherent 
sovereign powers and sustain prosperous and resilient Native American 
communities. And, although we must not ignore the history of 
mistreatment and destructive policies that have done great harm to so 
many tribal communities, it is undeniable that the government-to-
government relationships between tribes and the United States that have 
flourished during the last half century, in the current era of tribal 
self-determination, have been enormously beneficial not only to Native 
Americans but to all Americans. Yet the benefits of the government-to-
government relationship have long been denied to one place in our 
Nation, even though it is home to one of the world's largest indigenous 
communities: Hawaii.
    Over many decades, Congress has enacted more than 150 statutes 
recognizing and implementing a special political and trust relationship 
with the Native Hawaiian community. Among other things, these statutes 
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 has enacted for federally 
recognized tribes in the continental United States. But during this 
same period, the United States has not partnered with Native Hawaiians 
on a government-to-government basis, at least partly because there has 
been no formal, organized Native Hawaiian government since 1893, when 
the United States helped overthrow the Kingdom of Hawaii.
    In recent years, the Department has increasingly heard from Native 
Hawaiians who assert that their community's opportunities to thrive 
would be significantly bolstered by reorganizing a sovereign Native 
Hawaiian government that could engage the United States in a 
government-to-government relationship, exercise inherent sovereign 
powers of self-governance and self-determination, and enhance the 
implementation of programs and services that Congress has created 
specifically to benefit the Native Hawaiian community.
    We would now like to hear from leaders and members of the Native 
Hawaiian community and of federally recognized tribes in the 
continental United States about whether, and how, the Department should 
facilitate the reestablishment of a government-to-government 
relationship with the Native Hawaiian community. Meaningful 
consultation and collaboration with both the Native Hawaiian community 
and the federally recognized tribes in the continental United States 
will be essential to the Department in developing any policy regarding 
potential reestablishment of a government-to-government relationship 
with the Native Hawaiian community. See Presidential Memorandum for the 
Heads of Executive Departments and Agencies on Tribal Consultation, 74 
FR 57881 (Nov. 5, 2009). And as stated above, we also welcome comments 
and information from the State of Hawaii and its agencies, other 
government agencies, and other members of the public.

The Relationship Between the United States and the Native Hawaiian 
Community

    At the time of the first documented encounter between Native 
Hawaiians and Europeans 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.'' 20 U.S.C. 7512(2); accord 42 U.S.C. 11701(4). Although 
the indigenous people shared a common language, ancestry, and religion, 
the eight islands were governed by four independent chiefdoms until 
1810, when the islands were unified under one Kingdom of Hawaii. See 
Rice v. Cayetano, 528 U.S. 495, 500-01 (2000).
    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 the Hawaiian monarch. 42 U.S.C. 
11701(6); accord 20 U.S.C. 7512(4); see Rice, 528 U.S. at 504 (citing 
treaties and conventions that the two countries signed in 1826, 1849, 
1875, and 1887). But during that same period, westerners became 
``increasing[ly] involve[d] . . . in the economic and political affairs 
of the Kingdom,'' leading to the overthrow of the Kingdom in 1893 by a 
small group of non-Hawaiians, aided by the United States Minister to 
Hawaii and the Armed Forces of the United States. Rice, 528 U.S. at 
501, 504-05. After the overthrow, the Republic of Hawaii ceded its land 
to the United States, and Congress passed a joint resolution annexing 
the islands in 1898. See id. at 505. The Hawaiian Organic Act, enacted 
in 1900, established the Territory of Hawaii, placed ceded lands under 
United States control, and directed that proceeds from the lands be 
used to benefit the inhabitants of Hawaii. Act of Apr. 30, 1900, ch. 
339, 31 Stat. 141.
    By 1919, the decline in the Native Hawaiian population--by some 
estimates from several hundred thousand in 1778 to only 22,600--led the 
Secretary to recommend to Congress that land be set aside to help 
Native Hawaiians reestablish their traditional way of life. See H.R. 
Rep. No. 839, 66th Cong., 2d Sess. 4 (1920); 20 U.S.C. 7512(7). This 
recommendation resulted in enactment of the Hawaiian Homes Commission 
Act (HHCA), which designated approximately 200,000 acres of land for 
homesteading by Native Hawaiians. Act of July 9, 1921, ch. 42, 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. 
839, at 1-2).
    When Hawaii was admitted to the Union in 1959, Congress vested 
authority in the State to administer HHCA lands subject to certain 
limitations. 73 Stat. 4 (1959). Congress also placed additional lands 
into a trust to be managed by the State for purposes that included 
``the betterment of the conditions of native Hawaiians, as defined in 
the [HHCA], as amended.'' Id. at 6. Congress further detailed the 
Secretary's responsibilities with respect to the HHCA lands and the 
HHCA itself in the Hawaiian Home Lands Recovery Act, 109 Stat. 357 
(1995).
    Since Hawaii's admission to the Union, Congress has enacted dozens 
of statutes on behalf of Native Hawaiians pursuant to the United 
States' recognized political relationship and trust responsibility. 
Congress has:
     Established special Native Hawaiian programs in the areas 
of health care, education, loans, and employment. See, e.g., Native 
Hawaiian Health Care Improvement Act, 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. 2911; Native American Programs Act of 1974, 42 
U.S.C. 2991-2992.
     Enacted statutes to preserve Native Hawaiian culture, 
language, and historical sites. See, e.g., 16 U.S.C. 396d(a); Native 
American Languages Act, 25 U.S.C. 2901-2906; National Historic 
Preservation Act of 1966, 16 U.S.C. 470a(d)(6).
     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. 42 U.S.C. 
11701(19); see, e.g., American Indian Religious Freedom Act, 42 U.S.C. 
1996-

[[Page 35299]]

1996a. See generally 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 114 
Stat. 2968-69 (2000); 114 Stat. 2874-75 (2000).
    In a number of enactments, Congress has expressly identified Native 
Hawaiians as ``a distinct and unique indigenous people with a 
historical continuity to the original inhabitants of the Hawaiian 
archipelago,'' 42 U.S.C. 11701(1); accord 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).
    In 1993, Congress enacted a joint resolution to acknowledge the 
100th anniversary of the overthrow of the Kingdom of Hawaii and to 
offer an apology to Native Hawaiians. 107 Stat. 1510 (1993). In that 
Joint Resolution, Congress acknowledged that the overthrow of the 
Kingdom of Hawaii thwarted Native Hawaiian efforts to exercise their 
rights to ``self-determination'' and ``inherent sovereignty,'' and 
stated 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.'' Id. at 1512-13; see also 20 U.S.C. 7512(20). 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.'' 107 Stat. 1513 (1993).
    Following a series of hearings and meetings with the Native 
Hawaiian community in 1999, the U.S. Departments of the Interior and 
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 recommended as its top 
priority that ``the Native Hawaiian people should have self-
determination over their own affairs within the framework of Federal 
law.'' Department of the Interior and Department of Justice, From Mauka 
to Makai 4 (2000).
    In 2000, in Rice v. Cayetano, while addressing aspects of the legal 
status of Native Hawaiians under one provision of Hawaii state law, the 
Supreme Court assumed, without deciding, that the United States ``may 
treat the native Hawaiians as it does the [organized] Indian tribes.'' 
528 U.S. at 518-19. Rice involved a distinctive state law that limited 
the right to vote for the trustees of the state Office of Hawaiian 
Affairs to ``Hawaiians,'' defined as ``any descendant of the aboriginal 
peoples inhabiting the Hawaiian Islands which exercised sovereignty and 
subsisted in the Hawaiian Islands in 1778, and which peoples thereafter 
have continued to reside in Hawaii.'' Haw. Rev. Stat. 10-2 (1993). The 
Court invalidated that state-law provision on the ground that, rather 
than implementing a political classification designed to promote the 
self-governance of a quasi-sovereign tribal entity, it used a racial 
classification in violation of the Fifteenth Amendment, which prohibits 
States from denying or abridging United States citizens' right to vote 
on account of race or color. See Rice, 528 U.S. at 514, 518-22.
    In recent statutes, Congress has again recognized 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.'' 114 Stat. 2968 (2000); see also id. at 2966; 114 
Stat. 2872, 2874 (2000); 118 Stat. 445 (2004). Congress has 
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 has 
enacted for federally recognized tribes in the continental United 
States. As Congress has 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.'' 114 Stat. 
2968 (2000).
    Although Congress has repeatedly acknowledged its special political 
and trust relationship with the Native Hawaiian community since the 
overthrow of the Kingdom of Hawaii more than a century ago, the Federal 
government has not maintained a government-to-government relationship 
with the Native Hawaiian community as an organized, sovereign entity. 
Reestablishing a government-to-government relationship with a 
reorganized sovereign Native Hawaiian government that has been 
acknowledged by the United States could enhance Federal agencies' 
ability to implement the established relationship between the United 
States and the Native Hawaiian community, while strengthening the self-
determination of Hawaii's indigenous people and facilitating the 
preservation of their language, customs, heritage, health, and welfare.
    The Federal government has long consulted with Native Hawaiians 
under several Federal statutes, including the National Historic 
Preservation Act of 1966, 16 U.S.C. 470a(d)(6)(B), 470h-2(a)(2)(D); the 
Native American Graves Protection and Repatriation Act, 25 U.S.C. 
3002(c)(2); and the Hawaiian Home Lands Recovery Act, 109 Stat. 360 
(1995). And for decades, Native Hawaiians have sought to formally 
reorganize a government through a community- or State-facilitated 
process. In recent years, there have been calls from the Native 
Hawaiian community for the Federal government to ``assist with the 
creation of a Native Hawaiian [governing] entity'' to address the legal 
status of the community and to reestablish a government-to-government 
relationship, in part to more effectively implement the special 
political and trust relationship between the United States and the 
Native Hawaiian community. Department of the Interior & Department of 
Justice, From Mauka to Makai 17 (2000).
    In 2001, a group of Native Hawaiian individuals and organizations 
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. 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 history of separate congressional 
enactments regarding the two groups and the unique history of Hawaii. 
The Ninth Circuit also noted the question whether Native Hawaiians 
``constitute one large tribe . . . or whether there are, in fact, 
several different tribal groups.'' Kahawaiolaa v. Norton, 386 F.3d 
1271, 1283 (9th Cir. 2004). The court expressed a preference 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.'' Id.
    Also in 2004, Congress authorized the Department's Office of Native 
Hawaiian Relations to discharge the Secretary's responsibilities for 
matters related to the Native Hawaiian community. See 118 Stat. 445-46 
(2004).
    Legislation has been proposed in Congress to reorganize a single 
Native Hawaiian governing entity to which the United States could 
relate on a

[[Page 35300]]

government-to-government basis. In 2010, during the Second Session of 
the 111th Congress, nearly identical Native Hawaiian government 
reorganization bills were passed by the House of Representatives by a 
bipartisan vote of 245 to 164 (H.R. 2314), reported favorably by the 
Senate Committee on Indian Affairs (S. 1011), and strongly supported by 
the Administration (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 ``shall be vested with 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 would have 
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 would have barred the Native Hawaiian 
government and its members from conducting gaming activities under the 
Indian Gaming Regulatory Act, 25 U.S.C. 2701 et seq., or other 
authority. The bills further would have provided that the Native 
Hawaiian government and its members would not be eligible for Federal 
Indian programs and services unless Congress had 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 would have acknowledged the existing special political 
and trust relationship between Native Hawaiians and the United States, 
and would have established a process for reorganizing a Native Hawaiian 
governing entity. Some in Congress, however, expressed a preference not 
for recognizing a reorganized Native Hawaiian government by 
legislation, but for applying the Department's Federal acknowledgment 
process to the Native Hawaiian community. See, e.g., S. Rep. No. 112-
251, at 45 (2012); S. Rep. No. 111-162, at 41 (2010).
    The State of Hawaii, in Act 195, Session Laws of Hawaii 2011, 
expressed its support for reorganizing and federally recognizing a 
Native Hawaiian government, 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 (2013); see Act 195, 
sec. 1, Sess. L. Haw. 2011. In particular, Act 195 established a 
process for compiling a roll of qualified Native Hawaiians in order to 
facilitate the development of a reorganized Native Hawaiian governing 
entity by the Native Hawaiian community. See Haw. Rev. Stat. 10H-3-4 
(2013); 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.
    In addition, Native Hawaiian community representatives have asked 
the Department to provide an administrative avenue to facilitate 
reestablishing a government-to-government relationship between that 
community and the United States. Most recently, in comments on the 
Department's discussion draft of potential revisions to the Federal 
acknowledgment regulations in 25 CFR part 83, which expressly do not 
apply outside the continental United States, several Native Hawaiian 
organizations requested an analogous administrative process for the 
Native Hawaiian community. See, e.g., http://www.bia.gov/cs/groups/xraca/documents/text/idc1-023645.pdf.
    This ANPRM seeks input on whether the Secretary should promulgate 
an administrative rule that would facilitate the reestablishment of a 
government-to-government relationship with the Native Hawaiian 
community. The goals of the rule would be to more effectively implement 
the special political and trust relationship between Native Hawaiians 
and the United States, which Congress has long recognized, and to 
better implement programs and services that Congress has created to 
benefit the Native Hawaiian community. The rule could focus on either:
     A Federal process to assist the Native Hawaiian community 
in reorganizing a government; or
     Reestablishing a government-to-government relationship 
with a Native Hawaiian government reorganized through a process 
established by the Native Hawaiian community and facilitated by the 
State of Hawaii. This process would have to be consistent with Federal 
law.

Who should be eligible to participate in reorganizing a native hawaiian 
government?

    If the Department were to proceed with an administrative rule to 
assist the Native Hawaiian community in reorganizing a Native Hawaiian 
government, the rule would not determine who ultimately would be a 
citizen or member of that government. For that reason, this ANPRM does 
not concern the question of how a Native Hawaiian constitution or other 
governing document should define a set of membership criteria. 
Presumably, a Native Hawaiian government would exercise its sovereign 
prerogative and, operating under its own constitution or other 
governing document, could define its membership criteria without regard 
to whether any person participated, or had been eligible to 
participate, in the government's initial reorganization (unless Federal 
legislation provided otherwise). See Santa Clara Pueblo v. Martinez, 
436 U.S. 49, 55-56 (1978) (holding that tribes are ``distinct, 
independent political communities, retaining their original natural 
rights in matters of local self-government,'' with the power to 
regulate ``their internal and social relations, . . . to make their own 
substantive law in internal matters'' such as membership, and ``to 
enforce that law in their own forums'') (citations and internal 
quotation marks omitted); id. at 72 n.32 (``A tribe's right to define 
its own membership for tribal purposes has long been recognized as 
central to its existence as an independent political community.'').
    But a Federal administrative rule concerning reorganization of a 
Native Hawaiian government would need to determine who can participate 
in the reorganization, including who would be eligible to assist in 
drafting a constitution or other governing document, and who would be 
eligible to vote in a ratification referendum. In discussing that 
issue, commenters may wish to consider observations made by members of 
the Supreme Court in Rice v. Cayetano, which invalidated a voting law 
of the State of Hawaii under the Fifteenth Amendment. Rice, 528 U.S. at 
518-22. Concurring in the judgment, Justice Breyer, joined by Justice 
Souter, concluded that the voting qualification was impermissible 
because the state statute ``defines the electorate in a way that is not 
analogous to membership in an Indian tribe.'' Id. at 526. Justice

[[Page 35301]]

Breyer contrasted the state law's ``broad'' definition of 
``Hawaiian''--which he noted would ``includ[e] anyone with one ancestor 
who lived in Hawaii prior to 1778, thereby including individuals who 
are less than one five-hundredth original Hawaiian (assuming nine 
generations between 1778 and the present)''--with membership 
definitions for various tribes in the continental United States, which, 
for example, focus on whether individuals and their parents are 
``regarded as Native'' by a Native village or group to which they claim 
membership, or whether individuals have ``an ancestor whose name 
appeared on a tribal roll . . . in the far less distant past [such as 
1906, 1936, 1937, or 1968, rather than 1778].'' Id. at 526-27 
(citations and internal quotation marks omitted). While Justice Breyer 
acknowledged that ``a Native American tribe has broad authority to 
define its membership,'' in his view the voting qualification created 
by the State of Hawaii went ``well beyond any reasonable limit'' on the 
State's power to create such a definition and was ``not like any actual 
membership classification created by any actual tribe.'' Id. at 527.
    In defining the persons who would be eligible to participate in any 
reorganization of a Native Hawaiian government, certain other 
legislative approaches may be instructive. For example, in the Hawaiian 
Homes Commission Act (HHCA), Congress exercised its trust 
responsibility to set aside Hawaiian home lands for homesteading by 
``native Hawaiians,'' a category Congress defined as ``any descendant 
of not less than one-half part of the blood of the races inhabiting the 
Hawaiian Islands previous to 1778.'' Act of July 9, 1921, ch. 42, sec. 
201(a)(7), 42 Stat. 108; see id. sec. 207, 42 Stat. 110-11. Congress 
later consented to amendments that would permit a lessee's spouse, 
child, or grandchild who is of at least 25% Native Hawaiian ancestry to 
acquire the lease. 100 Stat. 3143 (1986) (consenting to, inter alia, 
Act 272, Sess. L. Haw. 1982); 111 Stat. 235 (1997) (consenting to, 
inter alia, Act 37, Sess. L. Haw. 1994).
    A second approach is found in the State of Hawaii's Act 195, 
Session Laws of Hawaii 2011, legislation designed to facilitate the 
reorganization of a Native Hawaiian government. As amended in 2012 and 
2013, Act 195 provides that ``qualified Native Hawaiians'' can 
participate in reorganizing a Native Hawaiian government, where the 
term ``qualified Native Hawaiian'' is defined to mean an individual 18 
years or older who has maintained a significant cultural connection to 
the Native Hawaiian community and who:
     Is determined to be a descendant of the aboriginal peoples 
who, before 1778, occupied and exercised sovereignty in the Hawaiian 
islands, the area that now constitutes the State of Hawaii;
     Is determined to be one of the indigenous native peoples 
of Hawaii and to be eligible in 1921 for the programs authorized by the 
Hawaiian Homes Commission Act of 1920, or a direct lineal descendant of 
that individual; or
     Meets the ancestry requirements of Kamehameha Schools or 
of any Hawaiian registry program of the office of Hawaiian affairs.

See Haw. Rev. Stat. 10H-3(a)(2) (2013)

    The state law does not specify the documents or evidence that the 
Native Hawaiian Roll Commission should deem adequate to verify ancestry 
or to verify that an individual ``[h]as maintained a significant 
cultural, social, or civic connection to the Native Hawaiian 
community.'' Id. 10H-3(a)(2)(B). In a 2013 amendment, the legislature 
further instructed the Native Hawaiian Roll Commission to ``include in 
the roll of qualified Native Hawaiians all individuals already 
registered with the State as verified Hawaiians or Native Hawaiians 
through the office of Hawaiian affairs as demonstrated by the 
production of relevant office of Hawaiian affairs records''; those 
individuals do not have to certify that they have maintained a 
connection to the Native Hawaiian community or wish to be included in 
the roll of qualified Native Hawaiians. Id. 10H-3(a)(4).
    Another possible approach is found in legislation proposed in 
Congress to reorganize a Native Hawaiian government. The Native 
Hawaiian Government Reorganization Act of 2010 contained requirements 
that were similar to state Act 195's requirements, as to both ancestry 
and cultural, social, or civic connection to the community. This 
Federal legislation provided considerable detail about the 
documentation an individual would have to provide to demonstrate both 
ancestry and the kinds of significant cultural, social, or civic 
connections that evidence an individual's membership in the political 
community. The legislation stated that ancestry could be verified by 
presenting certain types of documentary evidence of lineal descent, 
identifying a lineal ancestor on the Kingdom of Hawaii's 1890 Census, 
or producing sworn affidavits from at least two ``qualified Native 
Hawaiian constituents'' (for those lacking birth certificates under 
certain circumstances). See S. 3945, sec. 8(c)(1)(B)-(C), 111th Cong., 
2d Sess. (2010).
    The Federal legislation further provided that an individual could 
demonstrate a significant cultural, social, or civic connection to the 
Native Hawaiian community if he or she satisfied at least two of ten 
criteria relating to current state of residence, eligibility to be a 
beneficiary of programs under the Hawaiian Homes Commission Act, 
residence on or ownership interest in ``kuleana land,'' participation 
in Hawaiian language schools or programs, membership in Native Hawaiian 
membership organizations, and regard as Native Hawaiian by the Native 
Hawaiian community. See S. 3945, sec. 3(12)(E), 111th Cong., 2d Sess. 
(2010); see id. sec. 3(10)
    This ANPRM seeks input on which individuals, as members of the 
Native Hawaiian community, should be eligible to participate in the 
process of reorganizing a sovereign Native Hawaiian government that 
could reestablish a relationship with the Federal government. The ANPRM 
does not seek input on the membership or citizenship criteria that the 
Native Hawaiian community may adopt in its constitution or other 
governing document; that decision belongs to the Native Hawaiian 
community.

Frameworks for Reorganization, Roll Preparation, and Acknowledgment

    The Department's existing regulatory frameworks for reorganizing, 
preparing rolls for, and acknowledging Indian tribes in the continental 
United States may inform the analogous processes that Native Hawaiians 
may ultimately propose for reorganization or acknowledgment. Tribal 
officials have worked with these regulatory provisions for decades, and 
their experiences likely will be helpful in responding to this ANPRM.
    The Department has established a regulatory framework for members 
of Indian tribes to adopt new governing documents and reorganize their 
tribal governments. The framework includes procedures that identify 
eligible voters, provide notice to those voters, provide equal 
opportunities to participate, establish minimum participation standards 
to ensure that the outcome of the voting reflects the will of the 
majority, and provide for the Secretary's approval of the governing 
document. See 25 CFR part 81.
    Federal regulations also provide a framework for the Secretary to 
compile rolls for some tribes for limited purposes. Those regulations 
provide for

[[Page 35302]]

public notice of the preparation of the roll, procedures for 
enrollment, and an opportunity to appeal adverse decisions. See 25 CFR 
parts 61 and 62.
    The Department's regulatory framework for Federal acknowledgment of 
Indian tribes, found in 25 CFR Part 83, establishes uniform 
administrative standards and procedures for identifying, defining, and 
acknowledging those Indian groups that exist as tribes. Id. 83.2. The 
regulations require evidence of community--such as shared cultural or 
social activities, residence in a defined geographic area, marriages 
within the group, shared language, kinship systems, or ceremonies, and 
significant social relationships among members--and evidence of 
political influence, such as widespread knowledge and involvement in 
political processes, and leaders who take action on matters that most 
of the membership consider important. Id. 83.7(b) and (c). If these and 
other mandatory criteria are met, tribal existence is acknowledged. Id. 
83.6(c) and 83.10(m). Indeed, Congress has expressly found that 
administrative acknowledgment under procedures set forth in a Federal 
regulation such as Part 83 is a valid method for recognizing an Indian 
tribe with which the United States can maintain a government-to-
government relationship. See 108 Stat. 4791 (1994).
    The acknowledgment of the Indian group under part 83 recognizes or 
reaffirms a special political and trust relationship with the United 
States. Here, however, the Native Hawaiian community already has a 
congressionally recognized special political and trust relationship 
with the United States, but lacks an organized governing body, a 
constitution, settled membership criteria, and a complete membership 
list, which petitioners under part 83 have. The experiences of tribes 
in the continental United States with part 83, like their experiences 
with the other parts of title 25 of the Code of Federal Regulations 
discussed above, nonetheless may provide useful guidance for the Native 
Hawaiian community. For example, the mandatory criteria in part 83 help 
clarify what constitutes a political community.
    Given the Native Hawaiians' unique situation, one of the topics on 
which this ANPRM seeks input is whether and how to promulgate a 
distinct regulatory framework for the Native Hawaiian community, for 
purposes such as:
     Identifying those persons of Native Hawaiian descent who 
are part of the political community and should be eligible to 
participate in the reorganization by virtue of verifiable cultural, 
social, or civic connection to the Native Hawaiian community; and
     Identifying procedures for adopting a constitution or 
other governing document, should the Native Hawaiian community indicate 
that it would like to do so.

Federal Programs and Services

    As described above, Congress has 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 has enacted for federally 
recognized tribes in the continental United States. Generally, Native 
Hawaiians have not been eligible for Federal Indian programs and 
services unless Congress expressly and specifically declared them 
eligible. Consistent with that approach, the Department of the Interior 
does not foresee that a Federal rule to facilitate the reestablishment 
of a government-to-government relationship with the Native Hawaiian 
community would alter or affect the programs and services that the 
United States currently provides to federally recognized tribes in the 
continental United States. Congress has enacted more than 150 statutes 
expressly affecting Native Hawaiians, and it is these laws that define 
the scope of Federal programs and services for Native Hawaiians.

Consultation With Federally Recognized Tribes in the Continental United 
States

    Given that the Secretary is considering whether to propose an 
administrative rule to facilitate the reestablishment of a government-
to-government relationship with an indigenous people, the knowledge, 
expertise, and input of officials from federally recognized tribes in 
the continental United States, including those tribes that have 
reorganized their own sovereign governments or have reestablished a 
government-to-government relationship with the United States, will be 
important. So, along with a series of public meetings in Hawaii, we 
will conduct a series of formal, in-person consultations with officials 
of federally recognized tribes in various regions of the continental 
United States during the public-comment period for this ANPRM. We will 
give public notice of each tribal consultation, and we will accept both 
oral and written communications. Tribal consultations on this ANPRM 
will be conducted in accordance with Executive Order 13175, 65 FR 67249 
(Nov. 9, 2000); the Presidential Memorandum for the Heads of Executive 
Departments and Agencies on Tribal Consultation, 74 FR 57881 (Nov. 9, 
2009); and the Department of the Interior Policy on Consultation with 
Indian Tribes.
    If the Department ultimately decides to issue a Notice of Proposed 
Rulemaking (NPRM), the NPRM's preamble will include a tribal summary 
impact statement that reflects comments received from tribal officials 
in response to this ANPRM. Publication of an NPRM also would open a 
second round of tribal consultation and another formal comment period 
to allow for further input and refinements before publishing a final 
rule.

Description of the Information Requested

    We are particularly interested in receiving comments on the 
following questions relating to an administrative rule we may develop 
concerning the potential reestablishment of a government-to-government 
relationship with the Native Hawaiian community:

General 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. What role, if any, should the Department of the Interior--
exercising the authorities described in 25 U.S.C. 2, 25 U.S.C. 9, 43 
U.S.C. 1457, and other statutes--play in facilitating the 
reestablishment of a government-to-government relationship with the 
Native Hawaiian community?
    3. Should there be a reorganization of a Native Hawaiian government 
in order to reestablish and maintain a government-to-government 
relationship between the Native Hawaiian community and the United 
States?
    4. If a Native Hawaiian government is reorganized, under what 
conditions should the Secretary federally acknowledge it and thus 
reestablish a government-to-government relationship?
    5. What features, including any within 25 CFR parts 61, 62, 81, and 
83 or other regulations, should the Secretary incorporate in a proposed 
administrative rule addressing potential reorganization or 
acknowledgment of a Native Hawaiian government?

Criteria for Inclusion on the Roll of Persons Eligible To Participate 
in the Reorganization

    6. If the Secretary were to propose a rule to assist in 
reorganizing a Native Hawaiian government, what should be the criteria 
for persons to be included

[[Page 35303]]

on the roll of those eligible to participate in reorganizing this 
government? (This roll would determine which persons are eligible to 
participate in reorganizing a Native Hawaiian government; it would not 
determine which persons ultimately could become members or citizens of 
a reorganized sovereign Native Hawaiian government.)
    7. To be included on the roll, what should constitute adequate 
evidence or verification that a person has Native Hawaiian ancestry?
    8. To be included on the roll, what should constitute adequate 
evidence or verification that a person has a significant cultural, 
social, or civic connection to the Native Hawaiian community?
    9. To be included on the roll, what significance, if any, should be 
given to the fact that a person is potentially eligible under the 
Hawaiian Homes Commission Act (HHCA), Act of July 9, 1921, ch. 42, 42 
Stat. 108, as amended? To the extent that this is a relevant criterion, 
what process should be used to identify persons who are potentially 
eligible under the HHCA, as amended?

The Process for Preparing a Roll of Persons Eligible To Participate in 
the Reorganization

    10. If the Secretary were to propose a rule to assist in 
reorganizing a Native Hawaiian government, what should be the process 
for preparing a roll of persons who would be eligible to participate in 
reorganizing a Native Hawaiian government?
    11. What role, if any, should the Secretary play in establishing, 
operating, or approving the process for preparing such a roll?
    12. What role, if any, should be played by the Native Hawaiian Roll 
Commission established under Hawaii state law to prepare the 
Kanaiolowalu registry?

Drafting a Constitution for a Native Hawaiian Government

    13. If the Secretary were to propose a rule to assist in 
reorganizing a Native Hawaiian government, what should be the process 
for drafting a constitution or other governing document for a Native 
Hawaiian government, and what should be the Secretary's role in 
providing such assistance?
    14. How should the drafters of a constitution or other governing 
document be selected?

Ratifying and Approving a Constitution for a Native Hawaiian Government

    15. If the Secretary were to propose a rule to assist in 
reorganizing a Native Hawaiian government, what should be the process 
for ratifying and approving a constitution or other governing document 
for a Native Hawaiian government?
    16. Should there be a minimum turnout requirement for any 
referendum to ratify a Native Hawaiian constitution or other governing 
document?
    17. In addition to being ratified by a majority of all qualified 
Native Hawaiians who participate in a ratification referendum, should a 
Native Hawaiian constitution or other governing document also have to 
be ratified by a majority of all qualified Native Hawaiians who 
participate in the ratification referendum and are potentially eligible 
under the HHCA, as amended?
    18. Should the Secretary have the responsibility to approve or 
disapprove a Native Hawaiian constitution or other governing document? 
If so, what factors, if any, other than consistency with Federal law, 
should be considered? For example, should the Secretary's approval 
depend on substantive issues (e.g., the constitution's safeguards for 
civil rights and liberties), procedural issues (e.g., lost or destroyed 
ballots, wrongful denial of ballots, etc.), or both?

Federal Acknowledgment of an Already Reorganized Native Hawaiian 
Government

    19. Should reorganization of a Native Hawaiian government occur 
through a process established by the Native Hawaiian community and 
facilitated by the State of Hawaii, rather than through a Federal 
process? This non-Federal process would have to be consistent with 
Federal law and satisfy conditions established by the Secretary as 
prerequisites to Federal acknowledgment. We seek views on each of the 
following as a potential condition for Federal acknowledgment of a 
Native Hawaiian government that has already been reorganized through a 
community-established, State-facilitated process:
     Acknowledgment by the State of Hawaii.
     A Native Hawaiian constitution (or other governing 
document) that--
    [cir] Safeguards the civil rights and liberties of Natives and non-
Natives alike, as guaranteed in the Indian Civil Rights Act of 1968, as 
amended, 25 U.S.C. 1301-1304;
    [cir] Has been ratified by a majority vote of ``qualified Native 
Hawaiians,'' as defined in Haw. Rev. Stat. 10H-3(a) (2013); and
    [cir] Has also (and perhaps simultaneously) been ratified by a 
majority vote of ``qualified Native Hawaiians'' who are potentially 
eligible under the HHCA, as amended.
     Any other criterion that should be included as a condition 
for Federal acknowledgment of an already reorganized Native Hawaiian 
government.

Michael L. Connor,
Deputy Secretary.
[FR Doc. 2014-14430 Filed 6-19-14; 8:45 am]
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