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Statement on the Release of the DOI Final Rule 43 CFR Part 50

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Statement regarding today’s release by the Dept. of Interior’s Final rule for reestablishing govt-to-govt relationship with the Native Hawaiian Community (43 CFR Part 50)

Sept 23, 2016

The U.S. has admitted to the crime of the overthrow of the Kingdom of Hawai’i, and stealing the Hawaiian National lands, in the 1993 Apology Law. (US Public Law 103-150).

When the U.S. signed on to the United Nations Charter in 1945, it agreed in Article 73(a). “to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses;”

As Hawaiians, without our National government, our National Sovereignty and right to self-determination resides in us, the “peoples concerned”. It is completely within our rights as Hawaiian Nationals under international law to unite in our sovereign Hawaiian nation.

The U.S. government knows this, but continues to suppress our nationality. They failed their sacred trust obligation to ensure respect for the culture of the peoples concerned – Hawaiian Nationals. Instead, they are proposing Hawaiians accept to a “domestic dependent nation” status, under this final rule to create a Native Hawaiian Governing Entity, under the management of the Department of Interior. In return, Hawaiians would receive none of our stolen lands, no additional benefits.

The DOI rule issued today states on Pg. 117 explains “re-establish govt to govt relations”.

The United States relationship with a Native Hawaiian Governing Entity would be “reestablished” in the sense that the United States previously maintained a formal relationship with a Native Hawaiian government, not that the former relationship between the United States and the Kingdom of Hawaii would resume or be resurrected.

This is the revisionism, bait-and-switch, getting us to accept their defining the Kingdom down from a co-equal Hawaiian National government to a Native Hawaiian government. Clearly, this is a means to settle reconciliation to the crimes admitted in the Apology Law.

Our kupuna rejected annexation in 1897 with the Ku’e petitions. There is no treaty of annexation. The U.S. has illegal status, but are attempting to legalize their status.

As a Kanaka Maoli living and working on the American continent, i reject the offer to go under the management of the DOI – an agency whose historical and current missions have been to dispossess Native peoples from their lands, subject them to genocidal oppression, and hand their resources over to be extracted for private benefit. Hawaiians stand in solidarity with our Native brothers and sisters on the continent. We know the pain they have endured and must find a better way.

I call on Hawaiians everywhere to unite in an Independent government, but NOT according to the criteria outlined in this final rule from the dept. of Interior.

Aloha,
Raul Nohea Goodness

How Independence is Blocked by Federal Recognition

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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.

Read more at: http://indiancountrytodaymedianetwork.com/2014/01/03/professor-breaks-down-sovereignty-and-explains-its-significance-152958

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.

https://en.wikipedia.org/wiki/Tribal_sovereignty_in_the_United_States

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. …”

Comments to DOI Proposed Federal Recognition Rules based on Votes for a Native Hawaiian Governing Entity

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Below are my comments i am sending to the Dept. of Interior’s “Procedures for Reestablishing a Formal Government-to-Government Relationship with the Native Hawaiian Community”. https://www.doi.gov/ohr/hawaiian-govt-to-govt-procedures-proposed-rule

This is targeting a specific participation requirement for Federal Recognition, not addressing the history of our 200 year relationship.

If you agree, please submit the same comments or your own comments under your own name by Dec 30, 2015. http://www.regulations.gov/#!docketDetail;D=DOI-2015-0005

Subject: The “affirmative” voter participation threshold should be 55,000 to 90,000, not 30,000 to 50,000

The minimum “affirmative” voter participation threshold to accept a formal request for Federal Recognition should be 55,000 to 90,000, not 30,000 to 50,000. Referring to criteria § 50.16 (g).

The Dept. of Interior (DOI) calculations of voting age Native Hawaiians is based on census data of 527,000 in the U.S. and 290,000 in the State of Hawaii. 65% are voting age, so 65% of 527,000 = 342,550. 65% of 290,000 is 188,500.

“But those figures do not include Native Hawaiian voters who reside outside the State of Hawaii, who also could participate in the referendum; the Department believes that the rate of participation among that group is sufficiently uncertain that their numbers should be significantly discounted when establishing turnout thresholds.” pg.43, NPRM Part 50 9.29.15

Even if the DOI cannot calculate the voter participation numbers for mainland Native Hawaiians, that doesn’t mean they should be discounted. We are Native Hawaiians, and we are recognized as U.S. Citizens of voting age.

DOI’s expected participation rate is between 60,000 and 100,000. So the minimum “affirmative” threshold to show community support will be 30,000. If you factor the total Native Hawaiians of voting age in the U.S. the correct minimum “affirmative” voter participation threshold should be 30,000 / 188,500 x 342,550 = 54,517 votes. The top range should be 50,000 / 188,500 x 342,550 = 90,862 votes.

55,000 votes in the “affirmative” for ratifying a Native Hawaiian Governing Entity document must be the minimum number for the Secretary of Interior to accept a formal request for Federal Recognition. Anything less will fail “to demonstrate broad-based community support” and should be rejected outright. The reasonable total demonstrating “broad-based community support” should be 90,000 affirmative votes.

What is going on with Native Hawaiian efforts to form a Government with Naʻi Aupuni?

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by Raul Nohea Goodness, October 11, 2015

So many Hawaiians are seeking clarity around the effort to create a Native Hawaiian Governing Entity with the Naʻi Aupuni. This is understandable, since there has been little public discussion of the facts and issues involved. I had the same questions when the process kicked off August 3, 2015, when election notices were first sent out. Here, I will share some of what I learned, facts as well as possible actions. I hope we can inform ourselves on what we, the lāhui, can do today about it. We all can make our own decisions on what comes next.

What is Naʻi Aupuni?

From naiaupuni.org:

Na‘i Aupuni is an independent organization made up of a volunteer board of directors from the Hawaiian community. It exists solely to help establish a path for Hawaiian self-determination.

In 2011, the State of Hawaii passed Act 195, which created the Hawaiian Roll Commission, aka Kana‘iolowalu. First, Native Hawaiians could sign up directly, then in 2013 names from other lists (OHA Registry, Kau Inoa) were added to the list. This is significant because the intention of the creators of the process is to have a government with “standing” or “authority” to legitimately take actions to request federal recognition from the U.S. State Dept. of Interior, and to negotiate/settle claims over the land trust with the State of Hawaii.

October 15, 2015: Voter Registration by the Hawaiian Roll Commission closes.

November 1, 2015: Ballots will be sent to voters certified by the Roll Commission as of 10/15/15.

November 30, 2015: Voting ends.

Between February and April 2016: ‘Aha (Constitutional Convention) held on Oahu over the course of eight consecutive weeks (40 work days, Monday through Friday).

Two months after ‘Aha concludes: If delegates recommend a form of Hawaiian government, a ratification vote may be held.

Although federal recognition is one likely outcome, theoretically the delegates to the convention could propose another form of government, such as an independent government based on reclaiming Native Hawaiians’ National Sovereignty.

What is “Federal Recognition”?

The term “Federal Recognition” may sound good to some ears, because recognition as a Native Hawaiian is a “good thing”, right? The fact is, Native Hawaiians are already recognized as having special status under U.S. Federal law. None of that changes without an act of Congress.

The term “Sovereignty” is sometimes used in the discussion to create a “government-to-government” relationship with the U.S. Dept. of Interior. U.S. law considers tribal governments as “dependent” governments, and reserve full authority for the Congress over those governments.

The Department of Interior (DOI) proposed rules released September 29, 2015 spell out exactly what would happen if a Native Hawaiian government requests and receives federal recognition:

  • No transfer of Federal lands, including Hawaiian Homelands (no “reservation”)
  • Does not affect lands owned by State of Hawaii (no “ceded lands”)
  • Not eligible for any Federal Indian Programs (health care, etc)
  • No difference in protection of sacred places (Mauna Kea)
  • Hawaiian Governing Entity will be subject to Congress’ plenary power (full control)
  • State of Hawaii will transfer Kahoʻolawe to the entity as a land base
  • “more effective” implementation of Dept. of Interior’s “trust relationship”

Here’s what we give up:

  • Claim to our National Sovereignty, which has never been surrendered

What is National Sovereignty (Independence)?

National Sovereignty is the exercise of sovereignty at the level of the nation-state. This first happened in Hawaiʻi when Kamehameha united the islands in 1810 and asserted full political, economic, social, and cultural sovereignty over those lands.

In 1842, Hawaiʻi was recognized as an independent Nation-state by the U.S., and recognized in 1843 by Britain and France. This is what is unique about Hawaiians– we were recognized as having National identity.

The U.S. Public Law 100-606 defines a ‘national group’ as a “set of individuals whose identity as such is distinctive in terms of nationality or national origins”.

National Sovereignty and Federal Recognition are incompatible. One is a nation-state at the international level, and the other is a dependent government under the U.S. Federal system.

Today, Hawaiians still retain their National identity, we never surrendered it. But we do not yet have a means to exercise our National Sovereignty.

What is the Kingdom of Hawaiʻi today?

Historically, the Kingdom of Hawaiʻi was the government of Hawaiian Islands from 1810 to 1893. The form of government was a Constitutional Monarchy. Today, that government is no longer operational. For some, the Kingdom still exists. Practically, the National Sovereignty of the Hawaiian Nation-state would need to be re-established first. However, typically if a nation is considered a successor state to a prior nation, it can form a new government system if it is created from a legitimate, recognized process. It will be up to Hawaiians today to decide that.

In many cases internationally, new governments and constitutions are created to continue or re-establish a successor state. It does not have to have the same government that existed previously.

What are my options now as a Native Hawaiian?

  • Educate yourself, your ʻohana, do your own research, and talk to people about it.
  • Find a way to be counted in this process:
  • Participate in the Naʻi Aupuni election process as an informed voter if you decide to engage the process. Find delegate candidates supporting your view for the ‘Aha and vote for them.
  • If you choose not to participate in the election, or are otherwise denied, sign the Protest Naʻi Aupuni petition – http://protestnaiaupuni.wordpress.com
  • Write comments to the DOI rules: http://www.regulations.gov/#!docketDetail;D=DOI-2015-0005
  • Hui with others to protest. Be counted.

What are possible outcomes for the Naʻi Aupuni ʻAha?

Federal Recognition under the Dept. of Interior

The delegates could draft a Governing Document to be voted on by Native Hawaiians via referendum. It would match all the criteria required by the U.S. Dept. of Interior, leaving only a formal request by that government to grant “Federal Recognition”.

The request would be the first time Native Hawaiians have voluntarily surrendered their claims for National Sovereignty as a nation-state in the international system.

Declaration of National Sovereignty

Delegates could draft a statement of intent to reclaim Independence / National Sovereignty. This could be part of a path to an independent government, separate from the State of Hawaii and Federal government.

 Declaration of “no authority” or “limited authority” and a new process for Nation-building

In light of the rushed schedule for Na‘i Aupuni, the lack of participation in Kana‘iolowalu, and the lack of free prior informed consent, delegates could declare they do not have authority to draft a constitution, and instead propose a new process which includes all Kanaka.

No document (Status Quo)

There could be no governing document created or statement created. The current state of affairs will proceed.

Raul Nohea Goodness is a Kanaka Maoli Software Architect and Developer raised in Wailuku, HI, and currently residing in Brooklyn, NY. He is registered to be a delegate candidate to the Na‘i Aupuni ‘Aha from outside Hawai‘i. www.hekili.net

Sources:

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