COMMENTS OF THE OFFICE OF HAWAIIAN AFFAIRS

REGARDING PROPOSED PROCEDURES FOR REESTABLISHING A GOVERNMENT-TOGOVERNMENT RELATIONSHIP WITH THE NATIVE HAWAIIAN GOVERNMENT
Aloha mai kkou. The Office of Hawaiian Affairs (OHA)1 commends the Department of the
Interior (Department) for taking this momentous step toward ending the unequal treatment of Native
Hawaiians as an indigenous people and beginning the reconciliation process called for by Congress over
twenty years ago. The Departments Procedures for Reestablishing a Formal Government-to-Government
Relationship With the Native Hawaiian Community (Proposed Rule), proposes an answer to the Native
Hawaiian communitys long-standing call for a mechanism to formalize the special political and trust
relationship that has existed between the United States and the Native Hawaiian people for more than a
century. We now find ourselves in a historic moment where the Department has the opportunity to issue
a final rule and begin reversing over a hundred years of Native Hawaiian governance suppression. For
this reason, and all those described below, OHA STRONGLY SUPPORTS the accelerated promulgation
of the Proposed Rule, as amended in Attachment A.
As a fundamental matter, OHA continues to strongly support accelerated administrative action to
reestablish a government-to-government relationship between the United States and the Native Hawaiian
people. The reestablishment of such a relationship is the most viable way to protect and expand existing
Native Hawaiian resources and rights; it is a matter of justice and equity for Native Hawaiians; and it is
an action that has broad-based community support, as evidenced by the publics comments on the
Departments Advanced Notice of Proposed Rulemaking (ANPRM). Therefore, OHA STRONGLY
SUPPORTS the spirit and general principles embodied in the Proposed Rule.
Consistent with its strong support, OHA respectfully urges the Department to amend certain
provisions of the Proposed Rule that undermine the Rules commendable spirit and general principles. In
particular, OHA urges the Department (1) to amend provisions that impair the Native Hawaiian
communitys inherent authority to define its own membership, (2) to adjust thresholds and standards as
appropriate to ensure that they are practical and achievable for the community, and (3) to amend
1

OHA is a quasi-autonomous governmental agency established by state law to advocate for the protection and
advancement of Native Hawaiian benefits and rights and to manage Native Hawaiian trust assets until a freestanding Native Hawaiian government is formed to assume that responsibility. See Haw. Const. art. XII,
5 and 6; Haw. Rev. Stat. 10-3(6) (Supp. 2007); Stand. Comm. Rep. No. 59, reprinted in 1978 Proceedings of
the Constitutional Convention of Hawaii, Vol. 1, at 644-45.

provisions that could unduly delay or frustrate the review of a Request for the reestablishment of a
government-to-government relationship.
In accordance with its position described above, OHA offers the following specific comments and
proposed amendments:

A.

OHA Continues to Strongly Support the Promulgation of a Federal Rule in Light of the BroadBased Community Support for Such Action.

OHA previously expressed its strong support for the promulgation of a proposed federal rule to
reestablish a government-to-government relationship between the United States and the Native Hawaiian
community. OHAs strong support was based on: (1) OHAs determination as fiduciary that
reestablishing such a relationship would be the most viable way to protect and expand existing trust
assets, federal programmatic funding, federal consultation rights and other self-determination rights under
federal law; (2) the widespread understanding that, as a matter of justice and equity, Native Hawaiians
should be afforded the same basic self-governance rights afforded all other major indigenous groups in
the nation; and (3) OHAs assessment that there is broad-based community support for such action.
OHAs independent analysis of the comments submitted in response to the ANPRM verified that
there is broad-based community support for moving forward to reestablish a government-to-government
relationship between the United States and the Native Hawaiian community. Based on OHAs
conservative quantitative analysis of the total 5,782 separate written and oral comments that either
supported or opposed a federal rule, a supermajority of more than three-fourths of commenters supported
the promulgation of a federal rule.2
Moreover, OHAs qualitative analysis of the responses to the five threshold questions
demonstrates a general unity of vision among supportive commenters on the appropriate parameters for a
federal rule. In particular, the responsive comments3 expressed certain general preferences in response to
the five threshold questions provided below.
1. The federal government should reestablish a government-to-government
relationship with the Native Hawaiian community as a matter of equity between
Native peoples in the United States, to fulfill the United States trust responsibilities
under its own laws, and to further reconciliation efforts including the reconciliation
efforts called for by the Apology Resolution.
2. The federal government should provide non-intrusive support upon request from
the Native Hawaiian community.
3. Secretary-provided assistance should be in the form of funding, technical assistance,
and open communication about the Departments standards and expectations
regarding the final structure of the Native Hawaiian government and the
ratification process.
4. The Secretary should rely on the reorganization of a Native Hawaiian government
through a process established by the Native Hawaiian community but the role of the

The three-fourths supermajority mentioned here does not include those comments that did not take a clear position
of support or opposition to the promulgation of a federal rule.
3
Other comments also expressed a general preference for preserving existing rights.

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State of Hawaii in this process should be limited. Reorganization should be left to

the Native Hawaiian community.
5. The Native Hawaiian government should be a single government reorganized
through a fair, balanced and open reorganization process.
The Proposed Rule demonstrates the Departments thoughtful and thorough consideration of the
comments submitted to the public docket. The Proposed Rule also appears to appropriately incorporate
widely supported general principles articulated in the public comments. For example, commenters
overwhelmingly agreed that Native Hawaiians should be allowed the full scope of self-determination in
forming their government. The Proposed Rule acknowledges and incorporates this most critical principle
by affirming that [c]onsistent with these comments, the Department is proposing only to create a
procedure and criteria that would facilitate the reestablishment of a formal government-to-government
relationship with a reorganized Native Hawaiian government without involving the Federal Government
in the Native Hawaiian communitys nation-building process. The Proposed Rule also incorporates the
commenters general consensus that the Native Hawaiian government with whom the federal government
reestablishes a government-to-government relationship should be a single government reorganized
through a fair, balanced and open reorganization process.
In light of the foregoing, OHA strongly supports the spirit and general principles articulated in the
Proposed Rule. Consistent with its support, OHA respectfully urges the Department to amend certain
provisions of the Proposed Rule that inadvertently may undermine the Rules commendable spirit and
general principles. These amendments, described in detail below, will ensure that specific portions of the
Proposed Rule will not thwart the Rules overarching goal of enabling the Native Hawaiian community to
conduct its own reorganization process and reestablish a government-to-government relationship with the
United States.
B.

The Procedures for Reestablishing a Government-to-Government Relationship With the Native

Hawaiian Community Should Preserve the Communitys Inherent Sovereign Right to Define
Itself.

One of the most fundamental principles of federal law regarding Native self-governance is that
Native peoples maintain the inherent sovereign right to define their own membership criteria. Consistent
with this firmly entrenched legal principle, the Supreme Court and the Ninth Circuit have repeatedly
deferred to Native communities authority to define their own membership and ruled that such authority
is central to [a Native peoples] existence as an independent political community. Santa Clara Pueblo
v. Martinez, 436 U.S. 49, 72 n.32 (1978); see also Alto v. Black, 738 F.3d 1111, 1115 (9th Cir. 2013);
Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1011 (9th Cir. 2007). The Proposed Rule,
however, purports to impose membership definitions on the Native Hawaiian community that conflict
with the communitys own definitions. In particular, the Proposed Rule requires the Native Hawaiian
community to exclude Native Hawaiians who are not United States citizens from participating in their
government reorganization process, and the Proposed Rule forces the Native Hawaiian community to
divide itself according to blood quantum for voting purposes. Such requirements constrain the inherent
right of the Native Hawaiian people to define their own membership for government reorganization
purposes and are not needed to validate the government reorganization process under federal law.
Accordingly, the requirements should not appear in the Final Rule.
1.

The Procedures Need Not and Should Not Prohibit Native Hawaiians Who Are Not
United States Citizens From Participating in the Reorganization of Their
Government.

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The United States currently maintains government-to-government relationships with Native

governments that actively extend membership to individuals who are not United States citizens.4
Moreover, it is generally uncommon for tribal governments to explicitly exclude individuals from tribal
membership based on U.S. citizenship.5 In fact, OHAs review of a sampling of 48 tribal government
constitutions revealed that 92 percent do not require U.S. citizenship as an express condition of tribal
membership.6 Not only has the federal government respected the right of these Native governments to
determine their membership without regard to U.S. citizenship as a matter of internal Native affairs, in
some instances the federal government has even adjusted federal law to accommodate the Native
governments citizenship definition.7 Accordingly, there is a compelling precedent in federal law and
policy for deferring to the Native Hawaiian communitys inherent right to define its own membership to
include Native Hawaiians who are not United States citizens for government reorganization purposes.
Moreover, to the extent that the U.S. citizenship provisions have been included based on concerns about
access to federal benefits, procedures can be (and typically are) put in place by the Native government to
alleviate any such concerns. Likewise, the practical reality is that the number of Native Hawaiians who
are not U.S. citizens represents a de minimis percentage of the overall population of qualified Native
Hawaiians.
Furthermore, federal law does not uniformly utilize a U.S. citizenship criterion for purposes of
defining Native Hawaiian. As the Department indicates in its notice of the Proposed Rule, Congress has
enacted over 150 statutes recognizing and implementing a special political and trust relationship with the
Native Hawaiian community, and Congresss actions form the basis for the Departments current
actions. Accordingly, it is important to note that when Congress has chosen to define the Native
Hawaiian community, Congress has overwhelmingly chosen to define Native Hawaiians in a broad
manner that allows the Native Hawaiian community to be inclusive of its people, regardless of U.S.
citizenship. To be specific, of the 45 federal statutes that include a statutory definition of Native
Hawaiian, the overwhelming majority (31 out of 45) do not limit that definition to U.S. citizens. (See
Attachment B.) Notably, even the highly stringent 1921 Hawaiian Homes Commission Act (HHCA)
does not contain a U.S. citizenship requirement. Congresss practice of defining the Native Hawaiian
community broadly, without regard to U.S. citizenship, provides further support for deference to the
inherent authority of the Native Hawaiian community to make its own membership decisions, including
the extent to which U.S. citizenship should be considered.
Finally, no major registry of Native Hawaiians requires U.S. citizenship as a condition of
registration. The Native Hawaiian Roll Commission does not require U.S. citizenship as a condition of
registration for its roll of qualified Native Hawaiians.8 OHAs Hawaiian Registry Program also does not
4

See, e.g., the Tohono Oodham Nation, the Kumeyaay tribes of Southern California, and the Kickapoo Traditional
Tribe of Texas.
5
While we understand that there are instances where such non-U.S. citizens may not be eligible to receive federal
benefits, we also appreciate that federal benefits and tribal membership are separate and not necessarily coextensive.
6
OHA conducted this analysis by reviewing a sampling of 48 tribal government constitutions published on the
Native American Constitution and Law Digitization Project, developed collaboratively by the University of
Oklahoma Law Library and the National Indian Law Library of the Native American Rights Fund. See:
<http://thorpe.ou.edu/>
7
For example, in 1983, Congress passed the Texas Band of Kickapoo Act, which gave Kickapoo Indians of
Mexican citizenship the right to cross the U.S.-Mexico border freely and to live and work in the United States. See
Texas Band of Kickapoo Act, Pub. L. No. 97-429, 96 Stat. 2269 (1983).
8
Act 195, July 7, 2011, Session Laws. HAW. REV. STAT. 10H-3 (2011) Session Laws 2011.
http://www.capitol.hawaii.gov/session2011/bills/GM1299_.PDF Act 195 defines a qualified Native Hawaiian as
an individual who the commission determines has satisfied criteria indicating they are a descendant of the

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require U.S. citizenship.9 OHAs now-inactive Operation Ohana registry was considered a worldwide
program that did not require U.S. citizenship.10 Kau Inoa (also currently inactive) did not require U.S.
citizenship. The Kamehameha Schools Hooulu Hawaiian Data Center also does not require U.S.
citizenship.11 Even the registry with the most stringent criteriathe Department of Hawaiian Home
Lands registrydoes not discriminate against applicants on the basis of U.S. citizenship.12 Therefore,
requiring U.S. citizenship as a condition of participation in the Native Hawaiian government
reorganization process would be inconsistent with the communitys operative definitions of Native
Hawaiian, and it might also create a significant practical impediment to reorganization. More
specifically, because no major registry currently tracks United States citizenship, such information would
have to be gathered and verified through a costly and time consuming separate process that could
undermine a successful reorganization.
For these reasons, the Final Rule should not impose a U.S. citizenship requirement and should
instead defer to the Native Hawaiian communitys inherent authority to define its own membership
criteria for government reorganization purposes. The federal government routinely interacts with other
Native governments that do not expressly limit their membership based on U.S. citizenship, Congress has
not articulated an all-purpose federal definition of Native Hawaiian that mandates U.S. citizenship, and
the Native Hawaiian community does not define itself according to U.S. citizenship. In addition, the
imposition of citizenship criteria at this late stage, after Native Hawaiians have been enrolling on existing
registries for decades, would create a significant barrier to timely and cost-effective government
reorganization. Therefore, OHA urges the Department to incorporate the amendments set forth in
Attachment A at 50.4 (definition of Native Hawaiian), 50.12(a)(1)(i)-(ii) and 50.12(b)(2)(i)-(ii).
2.

The Procedures Need Not and Should Not Create Separate Voting Classes Based on
Blood Quantum.

OHA strongly agrees that a Native Hawaiian government making a Request under the Procedures
must take reasonable steps to protect the unique rights and interests of HHCA beneficiaries during its

aboriginal peoples of the area that now constitutes the State of Hawaii or a person who was eligible in 1921 for
the programs authorized by the Hawaiian Homes Commission Act, 1920, or a direct lineal descendant of that
individual and who has maintained a significant . . . connection to the Native Hawaiian community and wishes to
participate in the organization of the Native Hawaiian governing entity and who is eighteen years of age or older.
9
HAW. REV. STAT. 10-19. The law is clear that registration is based on descent and implicitly not citizenship,
[i]nclusion of persons in the Hawaiian registry shall be based upon genealogical records sufficient to establish the
persons descent from the aboriginal people inhabiting the Hawaiian Islands in 1778.
http://www.capitol.hawaii.gov/hrscurrent/Vol01_Ch0001-0042F/HRS0010/HRS_0010-0019.htm
10
Operation Ohana registration form. See also, Operation Ohana Hawaiian Ancestry Enrollment Policy and
Procedures. The absence of United States citizenship as an eligibility criterion shows that citizenship was not a
condition of enrollment in the program.
11
Hawaiian Ancestry Verification Guidebook, Hooulu Hawaiian Data Center. Kamehameha Schools.
https://apps.ksbe.edu/datacenter/sites/apps.ksbe.edu.datacenter/files/HHDCRegGuideRev17.pdf (The guidebook is
silent on a U.S. citizenship requirement.)
12
The Department of Hawaiian Home Lands does not list U.S. citizenship as an eligibility requirement on its web
page providing information on how to apply for Hawaiian Home Lands. The only two requirements listed are that
an individual must be at least 18 years old and must be native Hawaiian (any descendant of not less than one-half
part of the blood of the races inhabiting the Hawaiian Islands previous to 1778 or in simpler terms, possess a blood
quantum of at least 50 percent Hawaiian). Applying for Hawaiian Home Lands, DEPARTMENT OF HAWAIIAN HOME
LANDS, http://dhhl.hawaii.gov/applications/applying-for-hawaiian-home-lands/

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government reorganization process and in the exercise of its governmental authority. Accordingly, OHA
supports the aspects of the Proposed Rule that:
(1) establish that documented HHCA eligibility, standing alone, renders an individual eligible to
participate in a vote to ratify the organic governing documents of the Native Hawaiian
government ( 50.12 (a)(1)(i));
(2) mandate that any roll used to determine eligibility to participate in a ratification vote also
include persons with documented HHCA eligibility ( 50.12 (b)(2)(i));
(3) provide that the organic governing document of the Native Hawaiian government must
permit HHCA-eligible Native Hawaiians to enroll as members ( 50.13 (f)(1));
(4) require that the organic governing document of the Native Hawaiian government protect and
preserve beneficiary rights, protections, and benefits under the HHCA and Hawaiian
Homelands Recovery Act (HHLRA); and
(5) affirm that the Native Hawaiian government will not have the authority to sell, dispose of,
lease, or encumber Hawaiian home lands or interests in those lands, or to diminish any
beneficiary rights, protections, or benefits granted by the HHCA, the HHLRA, the Act of
March 18, 1959, 73 Stat. 4; or the Act of November 11, 1993, secs. 10001-10004, 107 Stat.
1418, 1480-84.
These provisions ensure protection of HHCA beneficiaries voting rights during the government
reorganization process, secure HHCA beneficiaries membership rights following reorganization, and
ensure that HHCA beneficiaries existing rights, protections, and benefits under federal laws are not
diminished by the Native Hawaiian governments exercise of governmental authority. As such, these
provisions provide robust and comprehensive protection for HHCA beneficiaries unique rights and
interests throughout the government reorganization process and beyond. In light of this, the Proposed
Rules additional provisions creating separate voter classes based on blood quantum are unnecessary.
Moreover, the political history of the Native Hawaiian people and the legislative history of the HHCA
support treating all Native Hawaiians equally for voting purposes.
As they pertain to Native Hawaiians, blood quantum requirements are a federal convention and
are not a traditional Native Hawaiian means of restricting or classifying Native Hawaiians access to civic
participation in public governance. Prior to the overthrow of the Hawaiian Kingdom, Native Hawaiians
had the right to vote for and hold public office without regard to blood quantum.13 No records were made
or kept of voter blood quantum, and even the official Kingdom census made no blood quantum
distinctions, instead describing Native Hawaiians collectively as Aboriginals (pure/part).14 This is
consistent with Native Hawaiians traditional notion of Native Hawaiian identity as a matter of descent
and genealogy.15 Accordingly, the Native Hawaiian communitys tradition and political history support
use of a single Native Hawaiian voting class for reorganization purposes.
13

Certain Kingdom constitutions impose other criteria that restricted such access, but blood quantum was not used
as a criteria in any constitution. HAWAIIAN KINGDOM CONSTITUTION 1864, art. 61. (stating eligibility requirements
for elected representatives to the Legislative Assembly). See also, HAWAIIAN KINGDOM CONSTITUTION 1887, art.
61. (stating eligibility requirements for elected representatives to the Legislative Assembly). Suggest that you use
art. 62 of the 1864 Constitution, which required that an elector for representatives to the Legislative Assembly meet
certain property or income qualifications. For the 1887 Constitution, should probably use art. 59 stating eligibility
requirements for voters for the House of Nobles and art. 62 stating eligibility requirements for electors for the House
of Representatives (see attached).
14
Hawaiian Kingdom Census of 1890.
15
See LILIKALA K. KAMEELEIHIWA, NATIVE LAND AND FOREIGN DESIRES, PEHEA LAE PONO AI?
2-3 (Bishop Museum Press 1992). Hawaiian identity is, in fact, derived from the Kumulipo, the great cosmogonic

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Similarly, the legislative history of the HHCA supports use of a single, unified voting class.
House Resolution 13500, which gave rise to the HHCA, originally contained a blood quantum of 1/32
Native Hawaiian blood, which at the time effectively included all Native Hawaiians.16 The more stringent
50% blood quantum restriction was an amendment later forced by the Senate as a condition of passage of
the final HHCA to appease ranching and sugar interests.17 The 50% blood quantum requirement did not
reflect any existing method for conceptually dividing the Native Hawaiian community, but rather, was a
division imposed upon the community during the allotment period of federal Indian policy, a time when
Native communities were being deliberately divided in an attempt to eliminate the communities and end
the federal governments trust responsibility.18 Accordingly, the legislative history of the HHCA also
supports treating the Native Hawaiian community as a single, unified community for purposes of political
identity or self-governance.
For the foregoing reasons, the Proposed Rule should be amended as indicated in Attachment A at
50.12, 50.12(a)(2), 50.14(a)(4)-(5), 50.14(b)(5)(v), 50.14(c) and 50.16(h) to eliminate those proposed
provisions that create separate voter classes based on blood quantum. OHA urges the Department to treat
Native Hawaiians as one lhui19 without reinforcing divisions based on blood quantum.
C.

The Procedures for Ratifying Organic Government Documents Should Utilize Practical and
Achievable Voter Participation Thresholds.
1.

The Procedures Should Utilize a Plurality Rather Than Majority Voting

Standard.

genealogy. Its essential lesson is that every aspect of the Hawaiian conception of the world is related by birth, and as
such, all parts of the Hawaiian world are one indivisible lineage. Conceived in this way, the genealogy of the Land,
the Gods, Chiefs, and people intertwine with one another, and with all the myriad aspects of the universe. For if
someone were to ask a Hawaiian, Who are you?, he or she could only meaningfully answer by referring to his or
her beginnings, to his or her genealogy and lineage, which is like a map that guides each Hawaiians relationship
with the world. In traditional times, Hawaiians patterned their behavior after the ancestral example found in their
genealogy. Today, we Hawaiians use genealogical relationships to establish our collective identity via a social
network of extended ohana (family). Our shared genealogy helps us define our Lhui (nation) as an entity distinct
from the waves of foreigners that have inundated our islands.
16
In the Senate committee hearings on H.R. 13500, A. G. M. Robertson, a representative from Parker Ranch
testified, The bill defines native Hawaiians as being Polynesians of not less than one thirty-second blood.
Hearings on H. R. 13500. A Bill to Amend an Act Entitled An Act to Provide a Government for the Territory of
Hawaii, Approved April 30, 1900, As Amended, to Establish an Hawaiian Homes Commission, and for Other
Purposes Before the S. Comm. on Territories, 66th Cong. 9 (1920). The House committee report on H.R. 13500
further clarified that a native Hawaiian was defined as descendants of not less than one-thirty-second part of the
blood of the original races which inhabited the islands at the time of their discovery by Capt. Cook. H.R. Rep. No.
66-839, at 8 (1920). NATIVE HAWAIIAN LAW: A TREATISE 186, 233 n.87 (Melody K. MacKenzie et al. eds., 2015).
17
NATIVE HAWAIIAN LAW: A TREATISE 186, 233-34 n.94 (Melody K. MacKenzie et al. eds., 2015); Davianna
Pmaikai McGregor & Melody Kapilialoha MacKenzie, Moolelo Ea O N Hawaii: History of Native Hawaiian
Governance in Hawaii 430 (2014), http://interior.gov/ohr/reorg/upload/McGregor-and-MacKenzieHistory_of_Native_Hawaiian_Governance.pdf.
18
See COHENS HANDBOOK OF FEDERAL INDIAN LAW 1.04 (Nell Jessup Newton ed., 2012) for a thorough
discussion of the allotment period. The Hawaiian Homes Commission Act was signed into law in 1921; the
allotment period lasted from 1871 until 1928.
19
Translations for lhui include nation and tribe. MARY KAWENA PUKUI & SAMUEL H. ELBERT, HAWAIIAN
DICTIONARY 190 (1986).

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Along with the inherent authority to determine their own membership, Native peoples also have
the inherent authority to determine their own forms of governance.20 Although this authority is
acknowledged by the Proposed Rule and related notice, the Proposed Rule inadvertently limits how
Native Hawaiians can draft, propose, and ratify their own organic governing document by requiring that
the document be adopted by a majority vote. See 50.16(g) for Native Hawaiians generally, and
50.16(h) for HHCA-eligible Native Hawaiians.
Specifically, the majority voting standard set forth in the Proposed Rule contemplates a situation
where reorganization participants propose a single governing document for Native Hawaiians to either
support or oppose by vote. Language found in 50.14(b)(1) makes this clear by requiring a
demonstration of how and when the Native Hawaiian community made the full text of the proposed
governing document . . . available to Native Hawaiians prior to the ratification referendum . . . . In such
a situation, requiring that votes exceed[ ] half of the total number of ballots that Native Hawaiians cast .
seems reasonable.
However, the proposed rule does not consider the real possibility that reorganization participants
could simultaneously present several alternative organic governing documents to Native Hawaiians for a
vote. In fact, given the known diversity of perspectives in the Native Hawaiian community, it is highly
likely that reorganization participants will allow the Native Hawaiian community to exercise its selfdetermination by deciding which among the several proposals could best address the needs and concerns
of Native Hawaiians. For example, reorganization participants may simultaneously present for approval:
(A) a governing document modeled after past Hawaiian Kingdom constitutions, (B) a governing
document incorporating constitutions or government frameworks of other indigenous governments within
the United States, and (C) a governing document incorporating constitutions or government frameworks
of other indigenous governments outside the United States. As currently drafted, the majority voting
standard in the Proposed Rule would preclude the Native Hawaiian community from exercising its
inherent authority to utilize this method of approval.
To illustrate this point, if reorganization participants simultaneously presented proposals A, B,
and C for a vote, and Proposal A received twenty-one-percent (21%) of the votes, Proposal B received
thirty-percent (30%) of the votes, and Proposal C received forty-nine percent (49%) of the votes, no
governing document would be approved under 50.16(g) of the Proposed Rule, even though Native
Hawaiians clearly supported Proposal C over Proposals A and B.
In order to avoid this untenable outcome, the Final Rule should allow for a plurality when
appropriate rather than a majority voting standard, as noted in Attachment A at 50.16(g). This
amendment would protect the inherent right of the Native Hawaiian community to determine its own
government processes, including the use of document approval processes involving multiple proposals.
In addition to maximizing Native Hawaiian sovereignty, a plurality voting standard would also allow for
greater efficiency and effectiveness by eliminating the need to hold separate approval votes on each
proposed document, which would be ineffective and prohibitively costly given the size of the voter base.
2.

The Procedures Should Set a Practical and Achievable Ratification Voting

Threshold of 25,210 Total Affirmative Votes to Establish a Strong Presumption of
Broad-Based Community Support Among Native Hawaiians.

In addition to creating problematic divisions within the Native Hawaiian voting community,
50.16(g) also sets high voter participation thresholds for the Native Hawaiian community that are likely
20

See 25 U.S.C. 3601(4).

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unachievable due to the unique challenge presented by the communitys strict verification requirements.
More specifically, the Proposed Rule establishes a minimum threshold of 30,000 affirmative votes
required to potentially demonstrate community support for a governing document, and a threshold of
50,000 affirmative votes to apply a strong presumption of community support for a document. By setting
such a high voter participation threshold, 50.16(g) forces the Native Hawaiian community to meet
significantly higher standards than other Native governments in order to ratify its governing documents.
As a matter of fairness and equity, the Native Hawaiian people should not be subject to a greater burden
than other Native peoples in order to exercise their inherent self-governing authority under federal law.
Accordingly, the Proposed Rule should be amended as noted in Attachment A at 50.16(g) to create
more parity between the Rules voting standards and those articulated in 25 U.S.C. 478a, concerning
tribal constitutions, which states:
In any election heretofore or hereafter held under the Act of June 18, 1934 . . . on
the question of adopting a constitution and bylaws or amendments thereto . . . the vote of
a majority of those actually voting shall be necessary and sufficient to effectuate such [ ]
adoption . . . as the case may be: Provided, however, That in each instance the total vote
cast shall not be less than 30 per centum of those entitled to vote.
The language of 25 U.S.C. 478a therefore provides a formula that can be applied here:
(Eligible voters x .30) x .50 + 1 = voter threshold
Based on the foregoing, the federal governments threshold for adoption of a tribal governments
constitution requires a voter participation rate of thirty percent or more of the population eligible to vote.
In the 2010 U.S. Census, 186,73421 individuals self-identified as adult Native Hawaiians living in the
State of Hawaii.22 (OHA uses Native Hawaiian adults residing in Hawaii because we agree, as stated by
the Department in the NRPM, that it is unreasonable to use the population outside of Hawaii for purposes
of calculating the voter thresholds, despite the fact that Native Hawaiians outside of the state are
rightfully eligible to participate.) When making a modest adjustment to account for the difference
between self-identification with no verification process and the verification requirements set out in the
Proposed Rule, OHA believes that 168,061 is a reasonable and adequate number representing the eligible
voting population for the purposes of establishing the voter threshold. (This figure represents 90 percent
of the self-identified figure mentioned earlier.)
If the Department were to equitably apply the 25 U.S.C. 478a standard (thirty percent voter
turnout among the eligible population), then the result is a voter turnout threshold of 50,418. In terms of
the affirmative vote, a reasonable and equitable threshold would be a majority of those 50,418. A
majority here is represented by 25,210 affirmative votes. Equitable treatment of Native Hawaiians as an
indigenous people justifies a 25,210 affirmative-votes threshold or another reasonably close number. As
21

See, U.S. Bureau of the Census, Census 2010, (February 23, 2012). The NPRM uses the figure of 290,000 for the
number of self-identified Native Hawaiians living in Hawaii and further explains that about 65 percent of these
Native Hawaiians are of voting age (18 years of age or older). Sixty-five percent of this number is 188,500. NPRM
at 59124-25. However, this comment uses the specific number of 186,734 as representative of the self-identified
Native Hawaiians of voting age. This particular figure is derived from the pre-rounded-up figure from the Census
Bureau of 289,970 total self-identified Native Hawaiians living in Hawaii and also uses the specific percentage of
64.4 rather than the rounded-up percentage of 65.
22
Like the Department, OHA agrees that out-of-state Native Hawaiians should be eligible to participate but their
numbers should not be used to make it more difficult for Native Hawaiians to meet the ratification vote threshold.

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the Department has eloquently stated in its background and summary sections of the NPRM, Native
Hawaiians deserve equal treatment. Using the plurality vote model, this range should be proportionally
lowered based on the number of additional documents simultaneously proposed for approval. The
formula that would apply would be:
Eligible voters x .30) x (1/number of proposals) + 1 = voter threshold
If one governing document (A) is put forward, this would constitute 2 proposals (adopting A and not
adopting A). If two governing documents (A and B) are put forward, that would constitute 3 proposals
(adopt A, adopt B, adopt neither), and so on.
OHA also seeks to clarify that the voter estimate figures discussed and proposed in the NPRM
have limitations in terms of their use for the purpose of establishing a voter threshold. The OHA elections
in the late 1990s, used by the Department to develop its voter threshold, differ from the type of
constitutional ratification envisioned by the Proposed Rule. Most significantly, OHA elections in the
1990s required only a sworn statement of Native Hawaiian ancestry in order to participate; no verification
process was required. Secondly, OHA elections were bundled with the election of all other state and
federal offices, meaning that voters more interested in up-ticket elections like Congressional or
gubernatorial races would also be pulled into OHA elections because they were all on the same ballot.
Third, records show that voter turnout in Hawaii has significantly decreased since the late 1990s. Lastly,
these elections were conducted with substantial resources of the Hawaii State Office of Elections and
benefitted from the significant campaign resources of candidates for all races on that ticket, whereas the
ratification of the Native Hawaiian governments constitution cannot assume the same level of resources
or campaign spending.

3.

If the Procedures Force the Native Hawaiian Community to Divide Itself Based on
Blood Quantum, the Ratification Voting Requirements for HHCA-Eligible Voters
Should Also Be Practical and Achievable.

Like the Proposed Rules general voter participation standards, the specific standards applicable
to HHCA-eligible individuals need adjustment. As stated above, OHA strongly urges the Department to
eliminate the separate voting classes. However, in the event that the Final Rule ultimately forces the
community to divide itself for voting purposes, the definition of HHCA eligibility should be inclusive, the
voter participation threshold employed for HHCA beneficiary ratification should be practical and
achievable, and the procedure for verifying HHCA status should be reasonable.
First, the definition of HHCA eligibility in the Proposed Rule should be amended to more
accurately reflect the full scope of the HHCAs reach. Namely, the definition of HHCA-eligible Native
Hawaiians set forth at 50.16(h) of the Proposed Rule includes Native Hawaiians with 50% or more
blood quantum (including individuals who have neither applied for nor obtained a lease pursuant to the
HHCA), but excludes individuals with 25% to 49.9% Native Hawaiian blood quantum who are actual,
present lessees under the HHCA. Given that 208(5) and 209 of the Hawaiian Homes Commission Act
provides for benefits to lessee transferees and successors with 25% or more Native Hawaiian blood
quantum, these individuals are legitimate beneficiaries of the HHCA and should be properly treated as
HHCA-eligible for purposes of calculating the voter turnout for the Proposed Rules ratification.
Second, with respect to the voter turnout threshold for HHCA beneficiaries, OHA urges the
Department to use the 25 U.S.C. 478a standard described above to set voter participation thresholds that

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are based on the population of individuals proven to meet the blood quantum requirements, rather than a
figure based on self-reporting. The standard again is (eligible voters x .30) x .50 + 1 = voter threshold.
Reviewing the most recently published lists of DHHL residential leases (8,342) and the number of
individuals on the DHHL waitlist (27,341), that number may be no higher than 35,683. Using the 25
U.S.C. 478a formula, this would mean that no more than 10,704 total votes should be required, and 5,354
votes represents a majority of those votes if only one governing document is proposed for approval.
Based on the plurality voting standard, this range should be proportionally lowered based on the number
of additional documents simultaneously proposed for approval.
Third, given the practical realities of documentation and verification, HHCA-eligible Native
Hawaiian voters should be permitted to demonstrate their HHCA-eligible status through a sworn affidavit
attached to their ballot. No current list of qualified Native Hawaiians tracks HHCA eligibility. This is
true even with respect to the lists maintained by DHHL, as not all HHCA-eligible beneficiaries are
actually registered with DHHL. Accordingly, in order to implement the blood quantum-based ratification
vote proposed in the Procedures, the body conducting the referendum would have to implement a process
to verify HHCA-eligibility. Based on OHAs decades of experience verifying Native Hawaiian ancestry,
such a process would be extremely costly and time consuming, even if all persons seeking to establish
HHCA-eligibility presented official DHHL records, which is highly unlikely. Accordingly, a sworn
affidavit attesting to HHCA-eligibility should be deemed sufficient to demonstrate HHCA-eligibility for
ratification voting purposes only.23 Such a standard is the only practical and achievable method for
verifying HHCA eligibility in the context of a ratification vote.
Based on the foregoing, the Proposed Rule should be amended as indicated in Attachment A at
50.4 (definition of HHCA-eligible Native Hawaiian), 50.12(a)(2), 50.14(a)(4)-(5), 50.14(b)(5)(v),
50.14(c), 50.16(h) and 50.44(e).
D.

The Procedures Should Provide for Timely and Appropriate Cooperation by the Department of
the Interior.
1.

The Department Should Provide Technical Assistance Upon Request, Including

Guidance on the Compliance of Draft Organic Governing Documents and the
Ratification.

Reorganizing a Native Hawaiian government will require the Native Hawaiian people to invest a
significant amount of money and time. It would be devastating to the community if it completed the
process, determined it wanted to submit a request under the Rule and found itself ineligible to qualify
because of a technical deficiency in the process that could have been avoided if the community had
received proper support. For this reason, the Department should amend the Rule as indicated in
Attachment A at 50.21, to provide for technical assistance throughout the government reorganization
process upon the Native Hawaiian communitys request. This assistance should include guidance on the
compliance of the Native Hawaiian communitys draft organic documents with the standards articulated
in the Rule. Assistance of this nature is commonplace in the federal governments relationships with
23

Usage of sworn affidavits of HHCA-eligibility should be limited to ratification purposes. The Department of
Hawaiian Home Lands (DHHL) will be concerned about a potential influx of Native Hawaiians using recognized
sworn affidavits for HHCA leases without going through the DHHLs verification process. The DHHL has, at least
internally, questioned whether there is liability for the [DHHL] if someone demands inclusion on the waitlist
having been certified HHCA-eligible by another state entity? STATE OF HAWAII DEPT OF HAWAIIAN HOME
LANDS, APPROVAL OF A HAWAIIAN HOMES COMMISSION RESOLUTION IN SUPPORT OF THE UNITED STATES
DEPARTMENT OF THE INTERIOR PROPOSED RULE 43 C.F.R. PART 50, at 5, November 6, 2015.

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other Native governments. See 25 U.S.C. 476, 503; 25 C.F.R. Part 81. Indeed, the ANPRM expressly
contemplated the potential for federal involvement of this kind.24
2.

The Deadline Extensions Afforded the Department by the Procedures Should be

Limited to 30 days.

The Native Hawaiian people have waited over a hundred years for the ability to restore a measure
of formal self-governance to the community. During that time, the socioeconomic conditions of Native
Hawaiians have worsened, and there has been a steady increase in the frequency and intensity of threats to
Native Hawaiian land, natural resources and cultural resources. Accordingly, the need to restore selfgovernance is urgent, and the contemplated process for reestablishing a government-to-government
relationship should be subject to a firm timeline with limited and clearly defined extension provisions. In
particular, any deadline extension afforded the Department by the Rule should be limited to a single
extension of 30 days, as indicated in Attachment A at 50.32, to prevent undue delay in the review of
Requests. Deadlines applicable to the Department should require consent of the Requester and all granted
extensions should require notice to the requester.25
E.

The Procedures Should Clarify that a Request for Reestablishment May Come From a Native
Hawaiian Governing Body Installed Pursuant to Election or Interim Appointment.

The Department explained that the rule provides for reestablishment of relations with only a
single sovereign Native Hawaiian government but also acknowledged that there has been no formal,
organized Native Hawaiian government since 1893 . . . .26 Implicitly recognizing that Native Hawaiians
do not currently have regularly scheduled elections for choosing their own indigenous government
leaders, the Department should amend the Proposed Rule specifically clarifying that it permits a Request
for reestablishment of a government-to-government relationship to come from an interim Native
Hawaiian governing body that precedes an elected Native Hawaiian governing body.
It is highly likely that, in preparing for the formal development of a Native Hawaiian government,
Native Hawaiian reorganization participants would first appoint an interim Native Hawaiian governing
body to facilitate the organic activities of the nascent government, including the governments first
election and other similar matters of importance. It is also possible that the Native Hawaiian people
would view a Request for reestablishment of a government-to-government relationship as an urgent
priority that cannot wait for a formal election of governmental officials, but rather, should be submitted
immediately upon constitution of the interim governing body. Clarifying the Rule in this manner also
respects the Native Hawaiian peoples right to determine its own political priorities. Accordingly, the
Proposed Rule should be amended as noted in Attachment A at 50.10(e), 50.15 to prepare for this
eventuality.

24

Procedures for Reestablishing a Government-to-Government Relationship with the Native Hawaiian Community,
Advance Notice of Proposed Rulemaking, 79 Fed. Reg. 35296, 35302-03 (June 20, 2014) (soliciting comments).
The Department of Interior inquired about its assistance in the context of: criteria for persons to be included on the
roll of those eligible to participate in reorganizing, what should be the process for preparing a roll of persons who
would be eligible to participate in reorganizing a Native Hawaiian government, and what the role of the Interior
Secretary should be in providing assistance in the constitution drafting process.
25
Requester consent for Department deadline extensions and notice of extensions are consistent with the
Departments rules for American Indian Tribes. See, 25 CFR. 83.8.
26
Procedures for Reestablishing a Government-to-Government Relationship with the Native Hawaiian Community,
80 Fed. Reg. 59113, 59114 (proposed Oct. 1, 2015) (to be codified at 43 C.F.R. pt. 50).

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F.

The Procedures Should Clarify That, Upon Reestablishment of the Government-toGovernment Relationship, the Federal Governments Plenary Power and Trust Responsibility
Extend to the Native Hawaiian Government to the Same Extent They Extend to Other
Federally Recognized Native Governments.

As the Department recently asserted in a federal court briefing, general principles of federal
Indian law apply with equal force in the Native Hawaiian context. In enacting scores of Federal statutes
directly affecting the Native Hawaiian community over the last century, Congress has exercised its
Indian-affairs plenary power repeatedly and often expressly.27 For this reason, to the extent the
Proposed Rule expressly states that the Native Hawaiian government will be subject to the plenary power
of the federal government, it should clarify that the Native Hawaiian government will be subject to such
plenary power to the same extent as other federally recognized Native governments in the continental
United States. See Attachment A at 50.44(b)
CONCLUSION
In conclusion, OHA STRONGLY SUPPORTS the spirit and general principles embodied in the
Proposed Rule. Consistent with its strong support, OHA respectfully urges the Department to adopt the
Proposed Rule, as amended in Attachment A. The proposed amendments will strengthen the principles
embodied in the Rule and ensure that the government-to-government relationship accessible through the
Rule will be made available to a Native Hawaiian government that is an organic expression of the Native
Hawaiian peoples inherent sovereign authority. OHA once again urges the Department to move forward
encouraged by the guiding wisdom of our beloved Queen Liliuokalani, who encouraged her people to
look to those in positions of leadership to make things right:
A great responsibility has fallen upon them to look out for the welfare of the lhui in accordance
with the laws that the United States has handed down, to ensure that the people will receive rights
and benefits for our and future generations, and I will also derive that one benefit [i.e., the welfare
of the people].
Mahalo for the opportunity to comment.

27

Brief for the U.S. Dept of the Interior as Amicus Curiae Supporting Defendants, Akina et al. v. State of Hawaii et
al., Civ. No. 15-00322 JMS-BMK (D. Haw. 2015), Doc. No. 93. at 18.

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