The Secretary of the Interior has proposed an administrative rule to establish a government-to-government relationship with the Native Hawaiian community, dependent on that community creating a polity that satisfies the Department’s requirements for participation. Below are the Grassroot Institute’s comments on the proposed rule. To submit your own comments, go to: http://www.regulations.gov/#!documentDetail;D=DOI-2015-0005-2438

The Grassroot Institute of Hawaii submits these comments in the hopes of persuading the Department of Interior not to pursue the proposed rule outlining a procedure for reestablishing a formal government-to-government relationship with the Native Hawaiian community. Not only does the Department lack the legislative authority to propagate such a rule (which flies in the face of clear indications from Congress that they have not delegated any such authority to the DOI), but the long-term effect of such a rule could have significant negative consequences—both for the state of Hawaii and for the Native Hawaiian community. Rather than uniting Native Hawaiians, this rule has the potential to create lasting social, political, and economic divides within the Native Hawaiian community.

The Department is well-aware that the issue of political organization—with or without the involvement of the federal government—is a deeply contentious one among Native Hawaiians. By rushing this rule forward, there is a high probability that the wished-for political organization will not succeed. Instead, it will precipitate Constitutional challenge and may only end by further fracturing any sense of cultural unity among Native Hawaiian groups.

In short, the proposed rule is ill-founded, ill-considered, and unpopular with large numbers of Native Hawaiians. Its intended result is ill-defined and intrudes on the powers of the legislative branch. Any actions flowing from the rule will undoubtedly find themselves the subject of a legal challenge. To pretend to Native Hawaiians that this rule addresses any of their political or cultural concerns is, frankly, questionable verging on irresponsible.

The DOI lacks the legislative authority to propagate the rule

Though the lengthy background for the proposed rule purports to find the authority to recognize a Native Hawaiian government amongst a variety of distinct legislative actions, the leap is not one that is legally justified. Even the most generous reading of the Acts and history listed does not establish “penumbras” that can be interpreted to allow the unprecedented recognition of a race-based government within United States. The Department has never been granted such power explicitly, and to claim such authority from a variety of administrative duties is an act of stunning overreach.

In fact, not only have representatives of the DOI acknowledged the lack of authority to directly recognize the existence of a Native Hawaiian tribe, but that authority has been specifically repudiated by members of Congress. In 2014, in response to an ANPRM on recognition of a government-to-government relationship with the Native Hawaiian community, Senators Jeff Flake (R-AZ), Lamar Alexander (R-TN), Tom Coburn (R-OK), and Mike Lee (R-UT), wrote a letter to Secretary Jewell, objecting strongly to the Department’s ANPRM on legal as well as prudential grounds. In the letter, the Senators reiterate concerns about the constitutionality of a race-based government. They then go on to question the DOI’s authority to act in this matter state that this is more properly the domain of the Congress:

“Even if you disagree that the reestablishment of a Native Hawaiian Government would be patently unconstitutional, Congress has not enacted legislation authorizing the Department of the Interior (“the Department”) to engage in such a rulemaking. In fact, Congress has repeatedly refused to adopt legislation that would recognize a Native Hawaiian government or reestablish an administrative path for doing so. As such, any unilateral efforts by the Department to move forward administratively are unlawful.”

The letter even notes that the ANPRM represents a reversal of previous Department policy, which recognized the need for legislation before the DOI could move forward in recognizing a Native Hawaiian government.

The Senators conclude by naming several “prudential” objections to the Department’s actions, noting the unfairness in changing the rules of recognition for one group while others have struggled for years to be recognized under the stricter standard. They also raise the question of whether this would establish a bad precedent, wherein other similarly situated groups (e.g. the Amish) would also be able to seek special privileges.

Nor is this position a new one or a new interpretation of Congress’ intent. In September 2013, four members of the US Commission on Civil Rights wrote a letter to President Obama specifically addressing the possibility of an executive action to recognize a Native Hawaiian tribal government: “We believe that provisions of the Akaka bill are both unwise and unconstitutional. Executive action implementing provisions of the Akaka bill would be at least as unwise and unconstitutional.”   The letter provides evidence that there has been no continuous Native Hawaiian governing entity and that Native Hawaiians are not a tribe.  Thus, a key argument of the commissioners is that… “Neither Congress nor the President has to power to create an Indian tribe or any other entity with the attributes of sovereignty. Nor do they have the power to reconstitute a tribe or other sovereign entity that has ceased to exist as a polity in the past.”

The recognition of a race-based Native Hawaiian government is barred by the Constitution

Though the language used in justifying the proposed rule attempts to sweep this objection aside, the fact of the matter is that the Constitutional problems inherent in recognition of a race-based government are considerable and cannot be ignored.

The most recent attempt at the creation of a Native Hawaiian government via election and Constitutional Convention (currently in limbo due to a Supreme Court injunction) allowed participation based on the same ancestry requirements mentioned in the Hawaiian Homes Commission Act (which the Department also leans on in quantifying the concept of “community” for the purposes of this rule). A qualified individual:

“Has an ancestor who lived in Hawaii prior to 1778; or is a direct descendant of an ancestor who was eligible for Hawaiian Homes Commission Act in 1921; and has maintained a significant cultural, social or civic connection to the Native Hawaiian community and wishes to participate in the organization of a Native Hawaiian entity and is 18 years of age or over.”

The Constitutionality of the election (and any attempt at political organization based on this ancestry requirement) is brought into question by the Supreme Court’s decision in Rice v. Cayetano. In attempting to create a Native Hawaiian political organization using ethnicity as a standard for participation, the state is attempting to do precisely what the Court said was proscribed by the Fifteenth Amendment

In Rice, the Court held that the definitions of both “Hawaiian” and “Native Hawaiian” under state law (based on ancestry in the Islands prior to 1778) were racial classifications and that restricting voting rights based on this definition therefore violated the Fifteenth Amendment. That amendment protects citizens against discrimination in the elective franchise based on race, and applies to any election of public officials or in which public issues are decided.

Despite the holding in Rice, the current nation-building effort (and any effort envisioned by the rule, which depends heavily on Hawaiian Home Lands participation) uses ancestry as one of its primary bases for eligibility, excluding anyone who does not have an ancestor who lived in Hawaii before 1778 or is not a descendent of a person eligible for HHCA in 1921. However, the courts have been consistent in rejecting the use of ancestry as a proxy for race, and the conditions of eligibility for participation in the Native Hawaiian election (and therefore, the nation-building process) are in clear violation of the Rice decision and the Fifteenth Amendment.

Even putting aside the question of the Constitutionality of the mechanism that would create a Native Hawaiian government, there is also the very high likelihood that the government itself would fail a Constitutional challenge.

In the aforementioned 2013 letter from four members of the U.S. Commission on Civil Rights to President Obama, the Commissioners noted that it was both a misreading of history and the Constitution to accord tribal status to Native Hawaiians based on an imagined line of descent from the Kingdom of Hawaii:

“[W]hatever the perceived or actual wrongs that were done to native Hawaiian rulers in the late nineteenth century, there was not then a distinct “tribe” of native Hawaiians living separately from the rest of society, and there certainly has not been any in the 120 years since. …

“[T]he efforts to create a tribe are in large part an effort to preserve unconstitutional race-based privileges for Native Hawaiians in the wake of Cayetano v. Rice. The theory is that if Native Hawaiians can be transformed into a tribe, these privileges can be preserved under Morton v. Mancari.  This is mistaken. Conferring tribal status on a racial group is itself a violation of the equal protection guarantees of the Constitution. As the Supreme Court recently reiterated in Fisher v. University of Texas at Austin, ‘Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people,’ and therefore ‘are contrary to our traditions and hence constitutionally suspect [citations omitted].’  This is especially the case in our increasingly mixed-race society, of which Hawaii is a prime example. It can only sow bitterness and division for otherwise indistinguishable neighbors living side-by-side to be subject to different laws and different privileges because one has ‘one drop’ of Native Hawaiian blood and the other does not.

“Rewriting history to create a tribe out of the Native Hawaiian race would open a Pandora ’s Box for other groups to seek tribal status. Cajuns are an identifiable ethnic group in Louisiana who have had a continuous presence there for over two hundred years. Their ancestors may have been none too pleased when Napoleon sold the lands of the Louisiana Purchase to America, and they had no opportunity to assert sovereignty. Should Cajuns be allowed to seek tribal status? Should the Amish of Pennsylvania or the Hasidic Jews of New York be allowed to seek tribal status? Both groups have far more separation from mainstream society, much lower rates of intermarriage, and all encompassing rules governing the lives of members than do Native Hawaiians. Both groups also have histories stretching far back.”

No matter what justifications are presented, it is undeniable that the creation of a government based on race and ancestry—no matter whether created by legislative action or administrative rule—runs into significant equal protection problems. Claiming that the proposed rule does not create such a government, but merely recognizes one is quibbling. There is no long-existing polity of Native Hawaiians and even the Department’s efforts to set boundaries for what can be “recognized” as the voice of Native Hawaiians is heavily dependent on racial qualifications. Not only is such action Constitutionally questionable, but it also creates significant problems for the community itself.

The proposed rule will create division and disunity in the Native Hawaiian community

Perhaps the most disturbing element in the proposed rule can be found in the effort to quantify the “acceptable” level of participation from “qualified” Native Hawaiians so as to permit recognition of a hypothetical government as sufficiently Native Hawaiian. Opponents of the Akaka Bill and a Native Hawaiian tribe have long warned that such a measure would be extremely divisive. Their warnings don’t even scratch the surface of what is envisioned in the proposed rule.

It begins with the willful mischaracterization of the so-called “overwhelming” support for the propagation of this rule, support that was most likely found in the form of petition-based letters and comments and is far from an accurate assessment of the way in which the ANPRM was received by the Native Hawaiian community. In 2014, in multiple public hearings, a strong and vocal portion of the Native Hawaiian community expressed its disapprobation of the ANPRM and any federal action related to organization or recognition of a Native Hawaiian government.  Though their opponents have dismissed these Hawaiian activists as extremists, to ignore their position is to ignore their very important role within the Native Hawaiian community and their not-inconsiderable following.

Moreover, the low levels of participation in the state’s nation-building process, both in terms of sign-ups for the Native Hawaiian Roll and in objections to the delegate election, demonstrate that there is little to no consensus in the Native Hawaiian community on the question of sovereignty and nation-building.

Rather than respect the community’s hesitation about putting their fate in the hands of an elite group (of whom many are suspicious), the proposed rule charges ahead with conditions and qualifications for recognizing the political will of an ill-defined “community” that is (again) dependent on blood quantum and ancestry for participation. In a culture that has long embraced racial intermarriage, and where one of the most common concerns is the loss of home land rights for children and grandchildren who have fallen below the blood quantum threshold, this provision is so tin-eared as to border on offensive.  A mere 15,000 HHCA leaseholders hold in their hands the ability to change the fates of the more than 500,000 people who identify as Native Hawaiian in the United States. Rather than showing sensitivity to the real concerns of Native Hawaiians, this proposed rule would divide and value them based on HHCA participation and ancestry. It is no exaggeration to say that this rule has the ability to turn families inside out and set cousins at each other’s throats.

Conclusion

It is difficult to envision a rule that is more ambitious in its scope and more troubling in its possibilities than this one. At every turn, the Department sweeps aside every principle of restraint, respect for the Constitution, and even the wishes of the community they purport to serve. To say that it is vulnerable to legal challenge vastly understates the situation. In fact, at this moment, elements of the political process discussed within the rule itself (e.g. the state’s election based on the Native Hawaiian Roll) are under consideration by the courts.

While the Grassroot Institute has a deep respect for the contributions of the Native Hawaiian people, we feel that the proposed rule will only harm the Native Hawaiian community and ensure that yet more resources will be squandered in pursuit of a quixotic nation-building effort that will ultimately be blocked by the U.S. Constitution.

Thank you for the opportunity to submit our comments.