I was interested to follow up on the recent assertion by Robin Danner to Kalama Niheu:
Robin Danner: These are your claimed positions. Show us how independence is blocked by federal recognition. I need not provide anything – I’m not the one that is making a claim about blocking independence. I merely stated your claim to be false, because there is no evidence that it is true.
I have myself asserted this claim in the recent past, so I on took the effort by reviewing the Dept. of Interior’s (DOI) Proposed Rulemaking released Sept. 29, 2015. This is the “offer” on the table for a future “Native Hawaiian Governing Entity”.
To be granted Federal Recognition, a Native Hawaiian Governing Entity must formally request it and comply with the DOI Rule’s 8 criteria and 7 elements, stated in § 50.16. Implicit in this is that the Governing Entity accepts the terms of the contract that the Department lays out in the same document. It can be read here under “NRPM”: https://www.doi.gov/ohr/hawaiian-govt-to-govt-procedures-proposed-rule
Here are the terms of the deal:
§ 50.43 What does it mean for the Secretary to grant a request?
When a decision granting a request takes effect, the requester will immediately be identified as the Native Hawaiian Governing Entity (or the official name stated in that entity’s
governing document), the special political and trust relationship between the United States and the Native Hawaiian community will be reaffirmed, 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.
What this means to me: the DOI will only make a “Fed Rec” deal with a single entity. If that entity wants to subdivide its authority as it sees fit, fine. But the U.S. will make a gov-to-gov deal with Native Hawaiians once and only once. I think its reasonable to think this would mean any future NH group seeing Independence via the State Dept. would not be recognized because they already made a deal with a Native Hawaiian government.
But could this one Governing Entity later switch from “Federal Recognition under DOI” to “recognition as a Nation-State by U.S. State Dept.”? Let’s see…
§ 50.44 How will the formal government-to-government relationship between the United
States Government and the Native Hawaiian Governing Entity be implemented?
(a) Upon reestablishment of the formal government-to-government relationship, the Native Hawaiian Governing Entity will have the same government-to-government relationship under the United States Constitution and Federal law as the government-to-government relationship between the United States and a federally recognized tribe in the continental United States, and the same inherent sovereign governmental authorities.
(b) The Native Hawaiian Governing Entity will be subject to Congress’s plenary authority.
Now, please understand “i am not a lawyer”, so I will rely on Wikipedia a bit for my references on U.S. and Federal Indian/Tribal law: https://en.wikipedia.org/wiki/Tribal_sovereignty_in_the_United_States
First, DOI says “reestablishment” of the formal government-to-government relationship. That implies the deal is taking over from the prior Treaty relationship between the Kingdom of Hawaii and the United States. This is a renegotiation of the Treaty terms from before the 1893 overthrow.
Second, DOI states the NH Entity will have the same relationship that other federally recognized tribes have, and the same “inherent sovereignty”. Briefly, under U.S. law, “inherent sovereignty” comes directly from consent of the governed, but only for powers not reserved by the Federal or State governments. Clearly a “domestic dependent nation” situation.
Now, “inherent sovereignty” still means we could assert sovereignty in a limited way, but not in any way which goes against the U.S. Federal and State law. On the other hand, if a Hawaiian nation were to assert sovereign rights at the International level, or at levels within U.S. territory under Federal law, we would already have agreed to the “inherent sovereignty” deal. That would include law such as Newlands Resolution/Act of Annexation, which the U.S. currently considers lawful, notwithstanding that the lawful way to acquire territory was by treaty of annexation.
Third, “subject to Congress’s plenary authority”. Huh? This is a big one.
Plenary Power Doctrine. Congress, and not the Executive Branch, has ultimate authority with regard to matters affecting the Indian tribes. Federal courts give greater deference to Congress on Indian matters than on other subjects.
This asserts Congress has full power over tribes. It may override the Native government and even the Executive branch. This legal doctrine (upheld in United States v. Kagama), although called unconstitutional in past cases, it currently considered “good law”, in that is it enforceable in the courts. It has led to laws destructive to Native peoples, such as the Dawes Act, which broke the cohesiveness of tribal governments and dispossessed them of their lands.
I would like to bring attention to another detail: US Public Law 103-150 (Apology Law):
Whereas, the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum;
This is key, because we never gave up claim to our NATIONAL lands through referendum. Now, if there is a NH Governing Entity created via referendum, and that entity “signs off” on this Federal Recognition deal (which states clearly we get none of our national lands from U.S.A., only Kaho’olawe which the State of Hawaii already agreed to give up), then that could be construed as giving up our claim to national “ceded” lands.
In addition, we would be settling for “inherent” sovereignty, giving up “national” sovereignty.
Now, one avenue worth pursuing is to request clarification from DOI and/or the State Dept:
- with “reestablishment” of our gov-to-gov relationship, will the U.S. recognize the NH Governing Entity as the successor state to the Kingdom of Hawaii, and reaffirm the Treaties in force between the U.S. and the Kingdom of Hawaii?
- should we not have clarification on this point before making a request for Fed Rec? DOI does state that they have no power to undo acts of Congress, including the Statehood Act. That would likely stop them from declaring the governing entity a successor state with treaties in effect.
Note: Treaties are recognized in the U.S. Constitution as having equal weight in law to the Constitution itself.
- The Apology Law does state: “Whereas, the Newlands Resolution also specified that treaties existing between Hawaii and foreign nations were to immediately cease and be replaced by United States treaties with such nations;”, which is have not been repealed or ruled unconstitutional.
So if you’re keeping score, here’s where we are on “how independence is blocked by federal recognition”:
- U.S. will make a gov-to-gov deal with Native Hawaiians once and only once.
- DOI will only make a “Fed Rec” deal with a single entity
- “reestablishment” of gov-to-gov relationship implies the deal is taking over from the prior Treaty relationship between the Kingdom of Hawaii and the United States. The deal is legalizing what was admittedly illegal.
- Plenary Power Doctrine means Congress has full control over the powers of NH Governing Entity.
- If you take “plenary authority” plus “reestablishment” of relations without the prior Treaty w/Kingdom of Hawaii, we just gave up the store while getting nothing– no land, no treaty, no national sovereignty.
With this Fed Rec deal, we give up all our leverage, get nothing in return. Then the State of Hawaii will be ready to “negotiate” with us.
Now, i’m not a lawyer, but at this point in my life, i think i know how to read a contract. Any lawyers out there, want to review my analysis?
A hui hou,
-Raul Nohea Goodness
Update: Z. Aki addressed this issue in the Hawai’i’imiloa: Status of the Hawaiian State FB Group post on Fed-Rec by referencing a legal treatise:
OHA recently contracted some brilliant minds in international law to compose a treatise on law and policy relating to Kanaka Maoli. The document can be accessed here: http://www.oha.org/…/upl…/OHA-IPLP-Report-FINAL-09-09-15.pdf
At the end of page 24 (and beginning of 25) the authors state,
“By contrast, implied acquiescence to U.S. sovereignty could be interpreted as prejudicing the claim for restoration of the Hawaiian monarchy and an independent Hawai‘i, insofar as that claim relies on the assertion that the U.S. presence in Hawai‘i is today illegal. …”