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71278 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations DEPARTMENT OF THE INTERIOR (V) Public Meetings and Tribal Consultations ‘‘Recognition is a formal political act (VI) Procedural Matters [that] permanently establishes a Office of the Secretary (I) Executive Summary government-to-government relationship between the United States and the 43 CFR Part 50 The final rule sets forth an recognized tribe as a ‘domestic administrative procedure and criteria [Docket No. DOI–2015–0005; dependent nation,’ and imposes on the that the Secretary would use if the government a fiduciary trust 145D010DMDS6CS00000.000000 Native Hawaiian community forms a DX.6CS252410] relationship to the tribe and its unified government that then seeks a members. Recognition is also a RIN 1090–AB05 formal government-to-government constitutive act: It institutionalizes the relationship with the United States. The tribe’s quasi-sovereign status, along with Procedures for Reestablishing a rule does not provide a process for all the powers accompanying that status Formal Government-to-Government reorganizing a Native Hawaiian such as the power to tax, and to Relationship With the Native Hawaiian government. The decision to reorganize establish a separate judiciary.’’ Cohen’s Community a Native Hawaiian government and to Handbook of Federal Indian Law sec. establish a formal government-to- AGENCY: Office of the Secretary, 3.02[3], at 134 (2012 ed.) (citing H.R. government relationship is for the Department of the Interior. Rep. No. 103–781, at 2 (1994)) (footnotes Native Hawaiian community to make as and internal quotation marks and ACTION: Final rule. an exercise of self-determination. brackets omitted). Congress already federally SUMMARY: This final rule establishes the A government-to-government acknowledged or recognized the Native Secretary of the Interior’s (Secretary) relationship encompasses the political Hawaiian community by establishing a administrative process for reestablishing relationship between sovereigns and a special political and trust relationship a formal government-to-government working relationship between the through over 150 enactments. This relationship with the Native Hawaiian officials of those two sovereigns. unique special political and trust community to more effectively Although the Native Hawaiian relationship exists even though Native implement the special political and community has been without a formal Hawaiians have not had an organized trust relationship that Congress government for over a century, Congress government since the overthrow of the established between that community recognized the continuity of the Native Kingdom of Hawaii in 1893. and the United States. The rule does not Hawaiian community through over 150 Accordingly, this rule provides a attempt to reorganize a Native Hawaiian separate statutes, which ensures it has a process and criteria for reestablishing a government or draft its constitution, nor special political and trust relationship formal government-to-government does it dictate the form or structure of with the United States. At the same relationship that would enable a that government. Rather, the rule time, a working relationship between reorganized Native Hawaiian establishes an administrative procedure government officials is absent. This government to represent the Native and criteria that the Secretary would use rulemaking provides the Native Hawaiian community and conduct if the Native Hawaiian community Hawaiian community with an government-to-government relations forms a unified government that then opportunity to have a working with the United States under the seeks a formal government-to- relationship, referred to as the ‘‘formal Constitution and applicable Federal government-to-government government relationship with the law. The term ‘‘formal government-to- relationship.’’ The Native Hawaiian United States. Consistent with the government relationship’’ in this rule community’s current relationship with Federal policy of self-determination and refers to the working relationship with the United States has substantively all self-governance for indigenous the United States that will occur if the of the other attributes of a government- communities, the Native Hawaiian Native Hawaiian community to-government relationship, and might community itself would determine reorganizes and submits a request be described as a ‘‘sovereign to whether and how to reorganize its consistent with the rule’s criteria. sovereign’’ or ‘‘government to government. Importantly, the process set out in sovereign’’ relationship. It is important DATES: This rule is effective November this rule is optional and Federal action to note that a special political and trust 14, 2016. will occur only upon an express, formal relationship may continue to exist even FOR FURTHER INFORMATION CONTACT: request from the reorganized Native without a formal government-to- Jennifer Romero, Senior Advisor for Hawaiian government. The rule also government relationship. Native Hawaiian Affairs, Office of the provides a process for public comment Among other things, the more than Secretary, 202–208–3100. on the request and a process for the 150 statutes that Congress has enacted over many decades create programs and SUPPLEMENTARY INFORMATION: Secretary to receive, evaluate, and act (I) Executive Summary on the request. services for members of the Native Hawaiian community that are in many (II) Background (II) Background (III) Overview of Final Rule respects analogous to, but separate from, (A) How the Rule Works The Native Hawaiian community has the programs and services that Congress (B) Major Changes a unique legal relationship with the enacted for federally-recognized Indian (C) Key Issues United States, as well as inherent tribes in the continental United States. (D) Section-by-Section Analysis sovereign authority that has not been But during this same period, the United (IV) Public Comments on the Proposed Rule abrogated or relinquished, as evidenced States has not had a formal government- and Responses to Comments by Congress’s consistent treatment of to-government relationship with Native (A) Overview this community over an extended Hawaiians because there has been no (B) Responses to Significant Public Comments on the Proposed Rule period of time. Over many decades, formal, organized Native Hawaiian (1) Issue-Specific Responses to Comments Congress enacted more than 150 statutes government since 1893, when a United (2) Section-by-Section Responses to recognizing and implementing a special States officer, acting without Comments political and trust relationship with the authorization of the U.S. government, (C) Tribal Summary Impact Statement Native Hawaiian community. conspired with residents of Hawaii to VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations 71279 overthrow the Kingdom of Hawaii. Rep. No. 111–162, at 2–3 (2010). During Vol. III: 1874–1893, The Kalakaua Many Native Hawaiians contend that centuries of self-rule and at the time of Dynasty (1967); Neil M. Levy, Native their community’s opportunities to Western contact in 1778, ‘‘the Native Hawaiian Land Rights, 63 Cal. L. Rev. thrive would be significantly bolstered Hawaiian people lived in a highly 848, 861 (1975) (chronicling the through a sovereign Native Hawaiian organized, self-sufficient subsistence displacement of Native Hawaiians from government whose leadership could social system based on a communal their land). Although Native Hawaiian engage the United States in a formal land tenure system with a sophisticated monarchs continued to rule the government-togovernment relationship, language, culture, and religion.’’ Native Kingdom, the Bayonet Constitution exercise inherent sovereign powers of Hawaiian Education Act, 20 U.S.C. triggered mass meetings and other forms self-governance and self-determination 7512(2); accord Native Hawaiian Health of organized political protest by Native on par with those exercised by tribes in Care Act, 42 U.S.C. 11701(4). Although Hawaiians. This led to the the continental United States, and the indigenous people shared a common establishment of Hui Kalaiaina, a Native facilitate the implementation of language, ancestry, and religion, four Hawaiian political organization that programs and services that Congress independent chiefdoms governed the advocated the replacement of that created specifically to benefit the Native eight islands until 1810, when King Constitution and protested subsequent Hawaiian community. Kamehameha I unified the islands annexation efforts. See Noenoe K. Silva, The United States has a unique under one Kingdom of Hawaii. See Rice Aloha Betrayed 127–29 (2004); S. Rep. political and trust relationship with v. Cayetano, 528 U.S. 495, 500–01 No. 107–66, at 19 n.29 (2001). It also federally-recognized tribes across the (2000). See generally Davianna foreshadowed the overthrow of the country, as set forth in the Constitution, Pomaikai McGregor & Melody Kingdom in 1893 by a small group of treaties, statutes, Executive Orders, Kapilialoha MacKenzie, Moolelo Ea O non-Native Hawaiians, aided by the administrative regulations, and judicial Na Hawaii: History of Native Hawaiian United States Minister to Hawaii and precedent. The Federal Government’s Governance in Hawaii (2015), available the