The Department of the Interior (DOI) last year promulgated a rule intended to provide a way to organize “a Native Hawaiian government” that could “seek a government-to-government relationship with the United States.” In plain English, this is an attempt to grant tribal status to Native Hawaiians by executive decree. The means for accomplishing this would be a vote, restricted by the regulation to those who had at least one drop of Native Hawaiian blood.
This atrocious rule, which is almost certainly unconstitutional, should immediately be repealed. Congress has the power to do so now under the Congressional Review Act (CRA). This law allows Congress a certain time to object to any new rule if it believes, for example, that an agency has overstepped its legal authority. If the President agrees, the rule is repealed.
The DOI’s regulation amounts to (another) attempt by the now-departed Obama Administration to use an executive order to circumvent Congress – and the Constitution. Under art. I, § 8, Congress is vested with the authority to regulate commerce with Indian tribes. This has been interpreted to mean that Congress has complete power to make this decision. Starting in 2000 and for more than a decade, Hawaii’s Senator Akaka tried to convince Congress to pass the Native Hawaiian Government Reorganization Act, popularly known as the “Akaka Bill.” The Akaka Bill would have granted Native Hawaiians a pathway to federal tribal status. But Congress never passed the bill.
Switching tactics, the Obama Administration decided to try to accomplish the same thing by executive action. Relying on a hodgepodge of federal statutes, the DOI argued that a “special” or “trust” relationship existed between the U.S. government and Native Hawaiians, and that this provided the basis for the DOI to adopt a regulation creating a pathway to Native Hawaiian tribal status. This approach is dishonest. The federal government has never recognized Native Hawaiians as a sovereign entity like other Indian tribes. If it had, there would have been no need for the Akaka Bill. When members of Congress expended political energy for more than a decade trying to pass that bill, were they wasting their time? The DOI’s regulation is based on a fiction and ignores the obvious: Native Hawaiians have not been granted federal tribal status because Congress rejected the effort to do so.
Even worse is what the DOI’s regulation does. It requires members of the Native Hawaiian community to adopt a “governing document” – meaning a constitution – and then to submit that document to a “ratification vote.” Under the DOI’s regulation, that ratification vote would be restricted to voters who can prove that they were descendants “of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii.” A single drop of blood is enough to be allowed to vote. This is the same ugly standard applied during the Jim Crow era to define a person as black for the purposes of the segregation statutes.
Such a rule would define more than 500,000 Americans as “Native Hawaiian.” (Only 1.3 million people live in Hawaii.) If such a tribe ever were formed, it would instantly become the largest tribe in the United States, by a wide margin. Indeed, this looks more like a secession movement that the designation of a tribe. When Hawaii tried to take advantage of this regulation by holding an election restricted to “Native Hawaiians,” using the same definition as the DOI, Judicial Watch sued on the grounds that this constituted racial discrimination in violation of the Constitution. (Akina v. State of Hawaii, No. 15-322.) The Supreme Court appeared to agree when it granted an injunction in December 2015 stopping the election. Hawaii later abandoned its efforts to hold such an election.
This is a strong sign that the Supreme Court would also enjoin any other attempt to hold a racially exclusive, “Native Hawaiian” election. The DOI’s rule is nothing but an invitation to violate the Constitution. It should be repealed now under the CRA.