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 Armed Forces of the United States. relationship with federally-recognized at http://www.regulations.gov/ See generally Moolelo Ea O Na Hawaii tribes includes a trust responsibility—a document?D=DOI-2015-0005-4290 at 387–402; S. Rep. No. 111–162, at 3– longstanding, paramount commitment (comment number 4290) (Moolelo Ea O 6 (2010); Cohen’s Handbook of Federal to protect their unique rights and ensure Na Hawaii); Ralph S. Kuykendall, The Indian Law sec. 4.07[4][b], at 360–61 their well-being, while respecting their Hawaiian Kingdom Vol. I: 1778–1854, (2012 ed.); Kuykendall, The Hawaiian inherent sovereignty. In recognition of Foundation and Transformation (1947). Kingdom Vol. III at 582–605. that special commitment—and in Kamehameha I’s reign ended with his The Kingdom was overthrown in fulfillment of the solemn obligations it death in 1819 but the Kingdom of entails—the United States, acting January 1893 by a ‘‘Committee of Hawaii, led by Native Hawaiian Safety’’ comprised of American and through the Department of the Interior, monarchs, continued. Id. developed processes to help tribes in European sugar planters, descendants of the continental United States establish Throughout the nineteenth century missionaries, and financiers. S. Rep. No. mechanisms to conduct formal and until 1893, the United States 103–126, at 21 (1993). The Committee government-to-government ‘‘recognized the independence of the established a provisional government, relationships with the United States. Hawaiian Nation,’’ ‘‘extended full and which later declared itself to be the Strong Native governments are critical complete diplomatic recognition to the Republic of Hawaii, and the U.S. to tribes’ exercising their inherent Hawaiian Government,’’ and ‘‘entered Minister to the Kingdom of Hawaii sovereign powers, preserving their into several treaties with Hawaiian ‘‘immediately extended diplomatic culture, and sustaining prosperous and monarchs.’’ 42 U.S.C. 11701(6); accord recognition’’ to the provisional resilient Native American communities. 20 U.S.C. 7512(4); see Rice, 528 U.S. at government ‘‘without the consent of It is especially true that, in the current 504 (citing treaties that the United Queen Liliuokalani or the Native era of tribal self-determination, formal States and the Kingdom of Hawaii Hawaiian people.’’ Id. at 21. Indeed, in government-to-government concluded in 1826, 1849, 1875, and his December 18, 1893 message to relationships between tribes and the 1887); S. Rep. No. 103–126 (1993) Congress concerning the Hawaiian United States are enormously beneficial (compiling conventions, treaties, and Islands, President Grover Cleveland not only to Native Americans but to all presidential messages extending U.S. described the provisional government as Americans. Yet an administrative diplomatic recognition to the Hawaiian an ‘‘oligarchy set up without the assent process for establishing a formal government); Moolelo Ea O Na Hawaii of the [Hawaiian] people,’’ id. at 32, and government-to-government relationship at 209–11, 240–47. But during that same noted, ‘‘there is no pretense of any [ ] has long been denied to members of one period, Westerners became consent on the part of the Government of the Nation’s largest indigenous ‘‘increasing[ly] involve[d] . . . in the of the Queen, which at that time was communities: Native Hawaiians. This economic and political affairs of the undisputed and was both the de facto rule provides a process to reestablish a Kingdom,’’ Rice, 528 U.S. at 501, 504– and the de jure government,’’ and that formal government-to-government 05, over vocal protest by Native ‘‘it appears that Hawaii was taken relationship with the Native Hawaiian Hawaiians. See, e.g., Kuykendall at 258– possession of by the United State forces community. 60. An example of such involvement without the consent or wish of the was adoption of the 1887 ‘‘Bayonet government of the islands, or of (A) The Relationship Between the Constitution’’ that resulted in mass anybody else so far as shown, except the United States and the Native Hawaiian disenfranchisement of Native Hawaiians United States Minister.’’ Id. at 27–28 Community by imposing wealth and property (quoting President Cleveland’s Message Native Hawaiians are the aboriginal, qualifications on voters, among other Relating to the Hawaiian Islands— indigenous people who settled the changes in Kingdom governance. See, December 18, 1893) (italics in original). Hawaiian archipelago as early as 300 e.g., Noenoe K. Silva, Kanaka Maoli Following the overthrow of Hawaii’s A.D., exercised sovereignty over their Resistance to Annexation, 1 Oiwi: A monarchy, Queen Liliuokalani, while island archipelago and, over time, Native Hawaiian Journal 43 (1998); yielding her authority under protest to founded the Kingdom of Hawaii. See S. Kuykendall, The Hawaiian Kingdom the United States, called for

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71280 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

reinstatement of Native Hawaiian relinquishment by the Native Hawaiian Its principal purposes were to maintain governance. Joint Resolution of people of their claims to sovereignty as unity among Native Hawaiians, protect November 23, 1993, 107 Stat. 1511 a people or over their national lands to Native Hawaiian interests (including by (Apology Resolution). The Native the United States. Moolelo Ea O Na lobbying the territorial legislature), and Hawaiian community answered, alerting Hawaii at 431 (citing the Apology promote the education, health, and existing Native Hawaiian political Resolution). Indeed, at the time of economic development of Native organizations and groups from annexation, Native Hawaiians did not Hawaiians. It was organized ‘‘for the throughout the islands to reinstate the have an opportunity to vote on whether sole purpose of protecting the Hawaiian Queen and resist the newly formed they favored annexation by the United people and of conserving and promoting Provisional Government and any States. Jon M. Van Dyke, The Political the best things of their tradition.’’ attempt at annexation. See Moolelo Ea O Status of the Native Hawaiian People, Hawaiian Homes Commission Act, Na Hawaii at 45–50. In 1895, Hawaiian 17 Yale L. & Pol’y Rev. 95, 103 (1998). 1920: Hearing on H.R. 13500 Before the nationalists loyal to Queen Liliuokalani The Hawaiian Organic Act, enacted in S. Comm. on Territories, 66th Cong., 3d attempted to regain control of the 1900, established the Territory of Sess. 44 (1920) (statement of Rev. Hawaiian government. Id. at 49–50. Hawaii, extended the U.S. Constitution Akaiko Akana). See generally Moolelo These attempts resulted in hundreds of to the territory, placed ceded lands Ea O Na Hawaii at 501–07. The arrests and convictions, including the under United States control, and Association established twelve standing arrest of the Queen herself, who was directed the use of proceeds from those committees, published a newspaper, tried and found guilty of misprision or lands to benefit the inhabitants of undertook dispute resolution, promoted concealment of treason. The Queen was Hawaii. Act of Apr. 30, 1900, 31 Stat. the education and the social welfare of subsequently forced to abdicate. Id. 141 (Organic Act). the Native Hawaiian community, and These events, however, did little to Hawaii was a U.S. territory for six developed the framework that suppress Native Hawaiian opposition to decades prior to becoming a State, eventually became the Hawaiian Homes annexation. During this period, civic during which time the Hawaiian Commission Act (HHCA). In 1918, organizations convened a series of large government’s ‘‘English-mainly’’ policy Prince Kuhio, who served as the public meetings of Native Hawaiians of the late 1850s was replaced by the Territory of Hawaii’s Delegate to opposing annexation by the United territorial government’s policy of Congress, and other prominent States and led a petition drive that ‘‘English-only’’ and outright Hawaiians founded the Hawaiian Civic gathered 21,000 signatures, mostly from suppression of the Hawaiian language in Clubs, whose goal was ‘‘to perpetuate Native Hawaiians, opposing annexation. public schools. See Paul F. Lucas, E Ola the language, history, traditions, music, See Moolelo Ea O Na Hawaii at 424–28. Mau Kakou I Ka Olelo Makuahine: dances and other cultural traditions of These ‘‘Kue Petitions’’ are part of this Hawaiian Language Policy and the Hawaii.’’ McGregor, Aina Hoopulapula: rule’s administrative record. Courts, 34 Hawaiian J. Hist. 1 (2000); see Hawaiian Homesteading, 24 Hawaiian J. The United States nevertheless also Kuykendall, The Hawaiian of Hist. 1, 5 (1990). The Clubs’ first annexed Hawaii ‘‘without the consent of Kingdom Vol. I at 360–62. See generally project was to secure enactment of the or compensation to the indigenous Maenette K.P. Ah Nee Benham & Ronald HHCA in 1921 to provide for the welfare people of Hawaii or their sovereign H. Heck, Culture and Educational Policy of the Native Hawaiian people by setting government who were thereby denied in Hawaii: The Silencing of Native aside and protecting Hawaiian home the mechanism for expression of their Voices ch. 3 (1998); Native Hawaiian lands. inherent sovereignty through self- Law: A Treatise at 1259–72 (Melody government and self-determination.’’ Kapilialoha MacKenzie ed., 2015). But (B) Congress’s Recognition of Native Native Hawaiian Health Care Act, 42 various entities connected to the Hawaiians as a Political Community U.S.C. 11701(11). The Republic of Kingdom of Hawaii adopted other In a number of enactments, Congress Hawaii ceded 1.8 million acres of land methods of continuing their internal expressly identified Native Hawaiians to the United States ‘‘without the governance and social cohesion. as ‘‘a distinct and unique indigenous consent of or compensation to the Specifically, the Royal Societies, the people with a historical continuity to Native Hawaiian people of Hawaii or Bishop Estate (now Kamehameha the original inhabitants of the Hawaiian their sovereign government,’’ Apology Schools), the Alii trusts, and civic clubs archipelago,’’ Native Hawaiian Health Resolution at 1512, and Congress passed are organizations, each with direct ties Care Improvement Act, 42 U.S.C. a joint resolution—the Newlands to their royal Native Hawaiian founders, 11701(1); accord Native Hawaiian Resolution (also known as the Joint and are prime examples of Native Education Act, 20 U.S.C. 7512(1), with Resolution of Annexation)—annexing Hawaiians’ continuing efforts to keep whom the United States has a ‘‘special’’ the islands in 1898. See Rice, 528 U.S. their culture, language, governance, and ‘‘trust’’ relationship, 42 U.S.C. at 505. community alive. See Moolelo Ea O Na 11701(15), (16), (18), (20); 20 U.S.C. Under the Newlands Resolution, the Hawaii at 560–63; id., appendix 4. 7512(8), (10), (11), (12). And when United States accepted the Republic of Indeed, post-annexation, Native enacting Native Hawaiian statutes, Hawaii’s cession of ‘‘all rights of Hawaiians maintained their separate Congress expressly stated in sovereignty of whatsoever kind in and identity as a single distinct community accompanying legislative findings that it over the Hawaiian Islands and their through a wide range of cultural, social, was exercising its plenary power over dependencies,’’ and resolved that the and political institutions, as well as Indian affairs: ‘‘The authority of the Hawaiian Islands were ‘‘annexed as part through efforts to develop programs to Congress under the United States of the territory of the United States’’ and provide governmental services to Native Constitution to legislate in matters became subject to the ‘‘sovereign Hawaiians. For example, Ahahui affecting the aboriginal or indigenous dominion’’ of the United States. No Puuhonua O Na Hawaii (the Hawaiian peoples of the United States includes consent to these terms was provided by Protective Association) was an the authority to legislate in matters the Kingdom of Hawaii; rather, the joint organization formed in 1914 under the affecting the native peoples of Alaska resolution ‘‘effectuated a transaction leadership of Prince Jonah Kuhio and Hawaii.’’ Native Hawaiian Health between the Republic of Hawaii and the Kalanianaole (Prince Kuhio) alongside Care Improvement Act, 42 U.S.C. United States’’ without direct other Native Hawaiian political leaders. 11701(17); see H.R. Rep. No. 66–839, at

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00004 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 71281

11 (1920) (finding constitutional Hawaiian population since Western lands. See Admission Act sec. 4; precedent for the HHCA ‘‘in previous contact; by 1919, the Native Hawaiian Hawaiian Home Lands Recovery Act enactments granting Indians . . . population declined by some estimates (HHLRA), Act of November 2, 1995, 109 special privileges in obtaining and using from several hundred thousand in 1778 Stat. 357. Congress again recognized in the public lands’’); see also Native to only 22,600. 20 U.S.C. 7512(7). more recent statutes that ‘‘Native Hawaiian Education Act, 20 U.S.C. Delegate Prince Kuhio, Native Hawaiian Hawaiians have a cultural, historic, and 7512(12)(B). Indeed, since Hawaii’s politician and Hawaiian Civic Clubs co- land-based link to the indigenous admission to the United States, founder John Wise, and U.S. Secretary people who exercised sovereignty over Congress has enacted dozens of statutes of the Interior Franklin Lane urged the Hawaiian Islands, and that group on behalf of Native Hawaiians. For Congress to set aside land to has never relinquished its claims to example, Congress: ‘‘rehabilitate’’ and help Native sovereignty or its sovereign lands.’’ • Established special Native Hawaiians reestablish their traditional Native Hawaiian Education Act, 20 Hawaiian programs in the areas of way of life. See H.R. Rep. No. 66–839, U.S.C. 7512(12)(A); accord Hawaiian health care, education, loans, and at 4 (statement of Secretary Lane) (‘‘One Homelands Homeownership Act, 114 employment. See, e.g., Native Hawaiian thing that impressed me was the fact Stat. 2968 (2000); Native Hawaiian Health Care Improvement Act of 1988, that the natives of the islands, who are Health Care Improvement Act, 42 U.S.C. 42 U.S.C. 11701–11714; Native our wards, I should say, and for whom 11701(1) (‘‘The Congress finds that: Hawaiian Education Act, 20 U.S.C. in a sense we are trustees, are falling off Native Hawaiians comprise a distinct 7511–7517; Workforce Investment Act rapidly in numbers and many of them and unique indigenous people with a of 1998, 29 U.S.C. 3221; Native are in poverty’’). Other HHCA historical continuity to the original American Programs Act of 1974, 42 proponents repeatedly referred to Native inhabitants of the Hawaiian archipelago U.S.C. 2991–2992. Hawaiians as a ‘‘people’’ (at times, as a whose society was organized as a Nation • Enacted statutes to study and ‘‘dying people’’ or a ‘‘noble people’’). preserve Native Hawaiian culture, prior to the arrival of the first See, e.g., H.R. Rep. No. 66–839, at 2–4 nonindigenous people in 1778.’’); see language, and historical sites. See, e.g., (1920); see also 59 Cong. Rec. 7453 Kaloko-Honokokau National Park Re- also Hawaiian Homelands (1920) (statement of Delegate Prince Homeownership Act, 114 Stat. 2966 establishment Act, 16 U.S.C. 396d(a); Kuhio) (‘‘[I]f conditions continue to (2000); 114 Stat. 2872, 2874 (2000); Native American Languages Act, 25 exist as they do today . . . , my people Consolidated Appropriations Act, 118 U.S.C. 2901–2906; National Historic . . . will pass from the face of the Stat. 445 (2004) (establishing the U.S. Preservation Act of 1966, 54 U.S.C. earth.’’). Congress found constitutional Office of Native Hawaiian Relations). 302706. precedent for the HHCA in previous Notably, in 1993, Congress enacted the • Extended to the Native Hawaiian enactments addressing Indian rights in Apology Resolution to acknowledge the people many of ‘‘the same rights and using public lands, H.R. Rep. No. 66– 100th anniversary of the overthrow of privileges accorded to American Indian, 839, at 11, and has since acknowledged the Kingdom of Hawaii and to offer an Alaska Native, Eskimo, and Aleut that the HHCA ‘‘affirm[ed] the trust apology to Native Hawaiians. In that communities’’ by classifying Native relationship between the United States Hawaiians as ‘‘Native Americans’’ under and the Native Hawaiians.’’ 42 U.S.C. Resolution, Congress acknowledged that numerous Federal statutes. Native 11701(13); accord 20 U.S.C. 7512(8). the overthrow of the Kingdom of Hawaii Hawaiian Health Care Improvement Act, In 1938, Congress again exercised its resulted in the suppression of Native 42 U.S.C. 11701(19); accord Native trust responsibility by preserving Native Hawaiians’ ‘‘inherent sovereignty’’ and Hawaiian Education Act, 20 U.S.C. Hawaiians’ exclusive fishing rights in deprived them of their ‘‘rights to self- 7512(13); see, e.g., American Indian the Hawaii National Park. Act of June determination,’’ and that ‘‘long-range Religious Freedom Act, 42 U.S.C. 1996– 20, 1938, ch. 530, sec. 3(a), 52 Stat. 784. economic and social changes in Hawaii 1996a. See generally Native Hawaiian In 1959, as a condition of statehood, over the nineteenth and early twentieth Education Act, 20 U.S.C. 7512(13) the Hawaii Admission Act contained centuries have been devastating to the (noting that ‘‘[t]he political relationship two provisions expressly recognizing population and to the health and well- between the United States and the Native Hawaiians and requiring the being of the Hawaiian people.’’ It further Native Hawaiian people has been State of Hawaii to manage lands for the recognized that ‘‘the Native Hawaiian recognized and reaffirmed by the United benefit of the indigenous Native people are determined to preserve, States, as evidenced by the inclusion of Hawaiian people. Act of March 18, develop, and transmit to future Native Hawaiians’’ in many statutes); 1959, 73 Stat. 4 (Admission Act). First, generations their ancestral territory and accord Hawaiian Homelands the Federal Government required the their cultural identity in accordance Homeownership Act, 114 Stat. 2874–75, State to adopt the HHCA as a provision with their own spiritual and traditional 2968–69 (2000). of its constitution, which effectively beliefs, customs, practices, language, These more recent enactments ensured continuity of the Hawaiian and social institutions.’’ Apology followed Congress’s enactment of the home lands program. Id. sec. 4, 73 Stat. Resolution at 1512–13; see Native HHCA, a Federal law that designated 5. Second, it required the State to Hawaiian Education Act, 20 U.S.C. tracts totaling approximately 200,000 manage a Congressionally mandated 7512(20); Native Hawaiian Health Care acres on the different islands for public land trust for specific purposes, Improvement Act, 42 U.S.C. 11701(2). In exclusive homesteading by eligible including the betterment of Native light of those findings, Congress Native Hawaiians. Act of July 9, 1921, Hawaiians. Id. sec. 5(f), 73 Stat. 6 ‘‘express[ed] its commitment to 42 Stat. 108; see also Rice, 528 U.S. at (requiring that lands transferred to the acknowledge the ramifications of the 507 (HHCA’s stated purpose was ‘‘to State be held by the State ‘‘as a public overthrow of the Kingdom of Hawaii, in rehabilitate the native Hawaiian trust . . . for [among other purposes] order to provide a proper foundation for population’’) (citing H.R. Rep. No. 66– the betterment of the conditions of reconciliation between the United States 839, at 1–2 (1920)); Moolelo Ea O Na native Hawaiians, as defined in the and the Native Hawaiian people.’’ Hawaii at 507–09, 520–35. The HHCA [HHCA], as amended’’). In addition, the Apology Resolution at 1513. Congress was enacted in response to the Federal Government maintained an also urged the President of the United precipitous decline in the Native oversight role with respect to the home States to ‘‘support reconciliation efforts

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71282 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

between the United States and the councils, boards, and commissions Federal programs by implementing Native Hawaiian people.’’ Id. at 1511. complete a training course on Native those programs in the context of a These Congressional findings and other Hawaiian rights, and approved formal government-to-government Congressional actions demonstrate that traditional Native Hawaiian burial and relationship. indigenous Hawaiians, like numerous cremation customs and practices. See Consistent with the HHCA, which is tribes in the continental United States, Act 169, Sess. L. Haw. 2015; Act 171, the first Congressional enactment have both an historical and existing Sess. L. Haw. 2015. These State actions clearly recognizing the Native Hawaiian cohesive political and social existence, similarly reflect recognition by the State community’s special relationship with derived from their inherent sovereign government of a continuing Native the United States, Congress requires authority, which has survived despite Hawaiian community. Federal agencies to consult with Native repeated external pressures to abandon Congress consistently enacted Hawaiians under several Federal their way of life and assimilate into programs and services expressly and statutes. See, e.g., the National Historic mainstream American society. specifically for the Native Hawaiian Preservation Act of 1966, 54 U.S.C. The Executive Branch also made community that are in many respects 302706; the Native American Graves findings and recommendations analogous to, but separate from, the Protection and Repatriation Act, 25 following a series of hearings and programs and services that Congress U.S.C. 3002(c)(2), 3004(b)(1)(B). And in meetings with the Native Hawaiian enacted for federally-recognized tribes 2011, the Department of Defense community in 1999, when the U.S. in the continental United States. As established a consultation process with Departments of the Interior and of Congress explained, it ‘‘does not extend Native Hawaiian organizations when Justice issued, ‘‘From Mauka to Makai: services to Native Hawaiians because of proposing actions that may affect The River of Justice Must Flow Freely,’’ their race, but because of their unique property or places of traditional a report on the reconciliation process status as the indigenous peoples of a religious and cultural importance or between the Federal Government and once sovereign nation as to whom the subsistence practices. See U.S. Native Hawaiians. The report found that United States has established a trust Department of Defense Instruction ‘‘the injustices of the past have severely relationship.’’ Hawaiian Homelands Number 4710.03: Consultation Policy damaged the culture and general welfare Homeownership Act, 114 Stat. 2968 with Native Hawaiian Organizations of Native Hawaiians,’’ and that (2000). Thus, ‘‘the political status of (2011). Other statutes specifically exercising self-determination over their Native Hawaiians is comparable to that related to implementation of the Native own affairs would enable Native of American Indians and Alaska Hawaiian community’s special trust Hawaiians to ‘‘address their most Natives.’’ Native Hawaiian Education relationship with the United States pressing political, health, economic, Act, 20 U.S.C. 7512(12)(B), (D). affirmed the continuing Federal role in social, and cultural needs.’’ Department Congress’s treatment of Native Native Hawaiian affairs, such as the of the Interior & Department of Justice, Hawaiians flows from that political Hawaiian Home Lands Recovery Act From Mauka to Makai at 4, 46–48, 51 status of the Native Hawaiian (HHLRA), 109 Stat. 357, 360 (1995). The (2000) (citing Native Hawaiians’ poor community. HHLRA also authorized a position health, poverty, homelessness, and high Congress, under its plenary authority within the Department to discharge the incarceration rates, among other over Indian affairs, repeatedly Secretary’s responsibilities for matters socioeconomic impacts). The report acknowledged its special relationship related to the Native Hawaiian ultimately recommended as its top with the Native Hawaiian community community. And in 2004, Congress priority that ‘‘the Native Hawaiian since the overthrow of the Kingdom of provided for the Department’s Office of people should have self-determination Hawaii more than a century ago. Native Hawaiian Relations to effectuate over their own affairs within the Congress concluded that it has a trust and implement the special legal framework of Federal law.’’ Id. at 3–4. obligation to Native Hawaiians in part relationship between the Native Congress also found it significant that because it bears responsibility for the Hawaiian people and the United States; the State of Hawaii ‘‘recognizes the overthrow of the Kingdom of Hawaii to continue the reconciliation process traditional language of the Native and suppression of Native Hawaiians’ set out in 2000; and to assure Hawaiian people as an official language sovereignty over their land. But the meaningful consultation before Federal of the State of Hawaii, which may be Federal Government has not maintained actions that could significantly affect used as the language of instruction for a formal government-togovernment Native Hawaiian resources, rights, or all subjects and grades in the public relationship with the Native Hawaiian lands are taken. See Consolidated school system,’’ and ‘‘promotes the community as an organized, sovereign Appropriations Act, 118 Stat. 445–46 study of the Hawaiian culture, language, entity. Reestablishing a formal (2004). and history by providing a Hawaiian government-to-government relationship education program and using with a reorganized Native Hawaiian (C) Actions by the Continuing Native community expertise as a suitable and sovereign government would facilitate Hawaiian Community essential means to further the program.’’ Federal agencies’ ability to implement As discussed above, Native Hawaiians Native Hawaiian Education Act, 20 the established relationship between the were active participants in the political U.S.C. 7512(21); see also Native United States and the Native Hawaiian life of the Kingdom of Hawaii, and this Hawaiian Health Care Improvement Act, community through interaction with a activity continued following the 42 U.S.C. 11701(3) (continued single, representative governing entity. overthrow through coordinated preservation of Native Hawaiian Doing so would strengthen the self- resistance to annexation and a range of language and culture). Congress’s efforts determination and self-governance of other organized forms of political and to protect and promote the traditional Native Hawaiians and facilitate the social organizations. See generally Silva, Hawaiian language and culture preservation of their language, customs, Aloha Betrayed; Silva, 1 Oiwi: A Native demonstrate that it repeatedly heritage, health, and welfare. This Hawaiian Journal 40 (examining recognized a continuing Native interaction is consistent with the United Hawaiian-language print media and Hawaiian community. In addition, at States government’s broader policy of documenting the organized Native the State level, recently enacted laws advancing Native communities and Hawaiian resistance to annexation); mandated that members of certain state enhancing the implementation of Silva, I Ku Mau Mau: How Kanaka

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00006 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 71283

Maoli Tried to Sustain National Identity the 1988 Native Hawaiian Sovereignty ‘‘determine whether native Hawaiians, Within the United States Political Conference, where a resolution on self- or some native Hawaiian groups, could System (documenting mass meetings, governance was adopted; the Hawaiian be acknowledged on a government-to- petitions, and citizen testimonies by Sovereignty Elections Council, a State- government basis.’’ 1 Id. Native Hawaiian political organizations funded entity, and its successor, Ha In recent years, Congress considered during and after the annexation period). Hawaii, a nonprofit organization, which legislation to reorganize a single Native The Native Hawaiian community helped hold an election and convene Hawaiian governing entity and maintained its cohesion and its distinct Aha Oiwi Hawaii, a convention of reestablish a formal government-to- political voice through the twentieth Native Hawaiian delegates to develop a government relationship between it and century to the present day. Through a constitution and create a government the United States. In 2010, during the diverse group of organizations that model for Native Hawaiian self- Second Session of the 111th Congress, includes, for example, the Hawaiian determination; and efforts resulting in nearly identical Native Hawaiian Civic Clubs and the various Hawaiian the creation and future transfer of the government reorganization bills were Homestead Associations, Native Kahoolawe Island reserve to ‘‘the passed by the House of Representatives Hawaiians deliberate and express their sovereign native Hawaiian entity,’’ see (H.R. 2314), reported out favorably by views on issues of importance to their Haw. Rev. Stat. 6K–9 (2016). Moreover, the Senate Committee on Indian Affairs community, some of which are the community’s continuing efforts to (S. 1011), and strongly supported by the discussed above. See generally Moolelo integrate and develop traditional Native Executive Branch (S. 3945). In a letter to Ea O Na Hawaii at 535–55; see id. at Hawaiian law, which Hawaii state the Senate concerning S. 3945, the 606–30 & appendix 4 (listing courts recognize and apply in various Secretary and the Attorney General organizations, their histories, and their family-law and property-law disputes, stated: ‘‘Of the Nation’s three major accomplishments). Native Hawaiians’ see Cohen’s Handbook of Federal Indian indigenous groups, Native Hawaiians— organized action to advance Native Law sec. 4.07[4][e], at 375–77 (2012 ed.); unlike American Indians and Alaska Hawaiian self-determination resulted in see also Native Hawaiian Law: A Natives—are the only one that currently the passage of a set of amendments to Treatise at 779–1165, encouraged lacks a government-to-government the State Constitution in 1978 to development of traditional justice relationship with the United States. reaffirm the ‘‘solemn trust obligation programs, including a method of This bill provides Native Hawaiians a and responsibility to native Hawaiians’’ alternative dispute resolution, means by which to exercise the inherent by providing additional protection and ‘‘hooponopono,’’ that the Native rights to local self-government, self- recognition of Native Hawaiian Hawaiian Bar Association endorses. See determination, and economic self- interests—a key example of political Andrew J. Hosmanek, Cutting the Cord: sufficiency that other Native Americans action in the community. Haw. Rev. Hooponopono and Hawaiian enjoy.’’ 156 Cong. Rec. S10990, S10992 Stat. 10–1(a) (2016). Those amendments Restorative Justice in the Criminal Law (Dec. 22, 2010). The 2010 House and Senate bills established the Office of Hawaiian Context, 5 Pepp. Disp. Resol. L.J. 359 provided that the Native Hawaiian Affairs (OHA), which administers trust (2005); see also Hawaii Const. art. XII, government would have ‘‘the inherent monies to benefit the Native Hawaiian sec. 7 (protecting the traditional and powers and privileges of self- community and generally promotes customary rights of certain Native government of a native government Native Hawaiian affairs, Hawaii Const. Hawaiian tenants). under existing law,’’ including the art. XII, secs. 4–6, and provided for Against this backdrop of activity, inherent powers ‘‘to determine its own recognition of certain traditional and Native Hawaiians and Native Hawaiian membership criteria [and] its own customary legal rights of Native organizations asserted self- membership’’ and to negotiate and Hawaiians, id. art. XII, sec. 7. The determination principles in court. implement agreements with the United amendments reflected input from broad Notably, in 2001, they brought suit segments of the Native Hawaiian challenging Native Hawaiians’ 1 The Department carefully reviewed the community, as well as others, who exclusion from the Department’s Kahawaiolaa briefs, in which the United States participated in statewide discussions of acknowledgment regulations (25 CFR suggested that Native Hawaiians have not been proposed options. See Noelani recognized by Congress as an Indian tribe. That part 83), which establish a uniform suggestion, however, must be read in the context of Goodyear-Kaopua, Ikaika Hussey & Erin process for Federal acknowledgment of the Kahawaiolaa litigation, which challenged the Kahunawaikaala Wright, A Nation Indian tribes in the continental United validity of regulations determining which Native Rising: Hawaiian Movements for Life, States. The United States Court of groups should be recognized as tribes eligible for Land, and Sovereignty (2014). Federal Indian programs, services, and benefits and Appeals for the Ninth Circuit upheld as having a formal government-to-government There are numerous additional the geographic limitation in the part 83 relationship with the United States. See 25 CFR examples of active engagement within regulations, concluding that there was a 83.2 (2004). As noted throughout this rule, Congress the community on issues of self- rational basis for the Department to has not recognized Native Hawaiians as eligible for general Federal Indian programs, services, and determination and preservation of distinguish between Native Hawaiians benefits; and while Congress has provided separate Native Hawaiian culture and traditions: and tribes in the continental United programs, services, and benefits for Native Ka Lahui Hawaii, a Native Hawaiian States, given the unique history of Hawaiians in the exercise of its constitutional self-governance initiative, which Hawaii and the history of separate authority with respect to indigenous communities in the United States, Congress has not itself organized a constitutional convention Congressional enactments regarding the established a formal government-to-government resulting in a governing structure with two groups. Kahawaiolaa v. Norton, 386 relationship with the Native Hawaiian community. elected officials and governing F.3d 1271, 1283 (9th Cir. 2004), cert. That matter has been left to the Executive or for documents; the Hui Naauao Sovereignty denied, 545 U.S. 1114 (2005). The Ninth later action by Congress itself. So, in context, the suggestion in the United States’ Kahawaiolaa briefs and Self-Determination Community Circuit also noted the question whether is not inconsistent with the positions taken in this Education Project, a coalition of over 40 Native Hawaiians ‘‘constitute one large rulemaking. To the extent that other positions taken Native Hawaiian organizations that tribe . . . or whether there are, in fact, in this rulemaking may be seen as inconsistent with worked together to educate Native several different tribal groups.’’ Id. The statements or positions of the United States in the Kahawaiolaa litigation, for the reasons stated in the Hawaiians and the public about Native court believed it appropriate for the proposed rule, and in this final rule, the views in Hawaiian history and self-governance; Department to apply its expertise to this rulemaking reflect the Department’s policy.

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71284 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

States or with the State of Hawaii. The the Commission certified an initial list the preliminary-injunction order as bills required protection of the civil of more than 95,000 qualified Native moot. Akina v. Hawaii, No. 15–17134, rights and liberties of Natives and non- Hawaiians, as defined by Haw. Rev. 2016 WL 4501686 (9th Cir. Aug. 29, Natives alike, as guaranteed in the Stat. 10H–3 (2015). In addition to the 2016). The litigation remained pending Indian Civil Rights Act of 1968, 25 initial list, the Commission certified in Federal district court at the time this U.S.C. 1301 et seq., and provided that supplemental lists of qualified Native final rule was issued. the Native Hawaiian government and its Hawaiians and published a compilation After the Supreme Court enjoined the members would not be eligible for of the certified lists online—the counting of the ballots, Nai Aupuni, Federal Indian programs and services Kanaiolowalu. See Kanaiolowalu, citing concerns about the potential for unless Congress expressly declared Certified List (Oct. 19, 2015), http:// years of delay in litigation, terminated them eligible. And S. 3945 expressly left www.kanaiolowalu.org/list (last visited the election and chose to never count untouched the privileges, immunities, Apr. 19, 2016). the votes. Instead, Nai Aupuni invited powers, authorities, and jurisdiction of In December 2014, a private nonprofit all registered candidates participating in federally-recognized tribes in the organization known as Nai Aupuni the election to participate in the Aha. continental United States. formed to support efforts to achieve During February 2016, nearly 130 The bills further acknowledged the Native Hawaiian self-determination. It Native Hawaiians took part in the Aha. existing ‘‘special political and legal originally planned to hold a month- On February 26, 2016, by a vote of 88- relationship with the Native Hawaiian long, vote-by-mail election of delegates to-30 with one abstention (not all people’’ and established a process for to an Aha, a convention to consider participants were present to vote), the ‘‘the Native Hawaiian people to exercise paths for Native Hawaiian self- Aha delegates voted to adopt a their inherent rights as a distinct, governance. Nai Aupuni limited voters constitution. See Press Release, Native indigenous, native community to and delegates to Native Hawaiians and Hawaiian Constitution Adopted (Feb. reorganize a single unified Native it relied on the roll compiled by the 26, 2016); Constitution of the Native Hawaiian governing entity.’’ Some in Commission to identify Native Hawaiian Nation (2016), available at Congress, however, expressed a Hawaiians. Delegate voting was to occur http://www.aha2016.com (last visited preference for allowing the Native throughout the month of November Apr. 19, 2016). Aha participants also Hawaiian community to petition 2015, but a lawsuit by six individuals adopted a declaration that lays out a through the Department’s Federal seeking to halt the election delayed history of Native Hawaiian self- acknowledgment process. See, e.g., S. those efforts. See Akina v. Hawaii, 141 governance ‘‘so the world may know Rep. No. 112–251, at 45 (2012); S. Rep. F. Supp. 3d 1106, 1111 (D. Haw. 2015). and come to understand our cause No. 111–162, at 41 (2010). Plaintiffs alleged, among other things, towards self-determination through self- In 2011, in Act 195, the State of violations of the Fifteenth Amendment governance.’’ Declaration of the Hawaii expressed its support for to the U.S. Constitution and the Voting Sovereignty of the Native Hawaiian reorganizing a Native Hawaiian Rights Act. The district court ruled that Nation: An Offering of the Aha, government that could then be federally plaintiffs did not demonstrate a available at http://www.aha2016.com recognized, while also providing for likelihood of success on their claims (last visited Apr. 19, 2016). State recognition of the Native Hawaiian and denied their motion for a The development of the roll of people as ‘‘the only indigenous, preliminary injunction. The district qualified Native Hawaiians, the effort to aboriginal, maoli people of Hawaii.’’ court also found that the scheduled elect delegates to an Aha, and the Haw. Rev. Stat. 10H–1 (2015); see Act election was a private election ‘‘for adoption of a constitution by the Aha 195, sec. 1, Sess. L. Haw. 2011. In delegates to a private convention, participants are all events independent particular, Act 195 established a process among a community of indigenous of this rule. The purpose of the rule is for compiling a roll of qualified Native people for purposes of exploring self- to provide a process and criteria for Hawaiians to facilitate the Native determination, that will not—and reestablishing a formal government-to- Hawaiian community’s development of cannot—result in any federal, state, or government relationship that would a reorganized Native Hawaiian local laws or obligations by itself.’’ The enable a reorganized Native Hawaiian governing entity. See Haw. Rev. Stat. court found it was ‘‘not a state election.’’ government to represent the Native 10H–3–4 (2015); id. 10H–5 (‘‘The Plaintiffs appealed to the Ninth Circuit. Hawaiian community and conduct publication of the roll of qualified During the appeal, Nai Aupuni mailed formal government-to-government Native Hawaiians . . . is intended to the delegate ballots to certified voters relations with the United States under facilitate the process under which and the voting for delegates began. the Constitution and applicable Federal qualified Native Hawaiians may Plaintiffs filed an urgent motion for an law. These events, however, provide independently commence the injunction pending appeal in the Ninth context and significant evidence of the organization of a convention of qualified Circuit, which was denied. Plaintiffs community’s interest in reorganizing Native Hawaiians, established for the then filed an emergency application for and reestablishing the formal purpose of organizing themselves.’’); an injunction pending appellate review government-to-government relationship Act 195, secs. 3–5, Sess. L. Haw. 2011. in the U.S. Supreme Court on November that warrants the Secretary proceeding Act 195 established the Native 23, 2015. Justice Kennedy enjoined the with this rulemaking process. Hawaiian Roll Commission to oversee counting of ballots on November 27, the process for compiling the roll of 2015. Five days later, the Supreme (III) Overview of Final Rule qualified Native Hawaiians. The Court, by a vote of 5 to 4, granted The final rule reflects the totality of Commission accepted registrations from plaintiffs’ request and enjoined the the comments from the Advance Notice individuals subject to verification of counting of ballots and the certifying of of Proposed Rulemaking (ANPRM) and their Native Hawaiian ancestry while winners, pending the final disposition the Notice of Proposed Rulemaking also ‘‘pre-certifying’’ for the roll of the appeal in the Ninth Circuit. See (NPRM or proposed rule) stages of the individuals who were listed on any Akina v. Hawaii, 136 S. Ct. 581 (2015). rulemaking process in which registry of Native Hawaiians maintained These orders were not accompanied by commenters urged the Department to by OHA. Haw. Rev. Stat. 10H– opinions. On August 29, 2016, the Ninth promulgate a rule announcing a 3(a)(2)(A)(iii) (2015). On July 10, 2015, Circuit dismissed plaintiffs’ appeal of procedure and criteria by which the

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00008 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 71285

Secretary could reestablish a formal (14) (also citing a 1938 statute ‘‘[N]ot only does the Constitution government-to-government relationship conferring leasing and fishing rights on expressly authorize Congress to regulate with the Native Hawaiian community. Native Hawaiians). Congress then commerce with the Indian tribes, but The Department will rely on this final ‘‘reaffirmed the trust relationship long continued legislative and executive rule as the sole administrative avenue between the United States and the usage and an unbroken current of for doing so with the Native Hawaiian Hawaiian people’’ in the Hawaii judicial decisions have attributed to the community. Admission Act, 20 U.S.C. 7512(10); United States . . . the power and the In accordance with the wishes of the accord 42 U.S.C. 11701(16). Since then, duty of exercising a fostering care and Native Hawaiian community as ‘‘the political relationship between the protection over all dependent Indian expressed in the comments on the United States and the Native Hawaiian communities.’’ United States v. ANPRM and the NPRM, the final rule people has been recognized and Sandoval, 231 U.S. 28, 45–46 (1913). does not involve the Federal reaffirmed by the United States, as Congress’s authority to aid Indian Government in convening a evidenced by the inclusion of Native communities, moreover, extends to all constitutional convention, in drafting a Hawaiians’’ in at least ten statutes such communities within the borders of constitution or other governing directed in whole or in part at American the United States, ‘‘whether within its document for the Native Hawaiian Indians and other native peoples of the original territory or territory government, in registering voters for United States such as Alaska Natives. 20 subsequently acquired.’’ Sandoval, 231 purposes of ratifying that document, or U.S.C. 7512(13); see also 42 U.S.C. U.S. at 46. Thus, despite differences in in electing officers for that government. 11701(19), (20), (21) (listing additional language, culture, religion, race, and Any government reorganization would statutes). Although a trust relationship community structure, Native people in instead occur through a fair and exists, today there is no single unified the East, Oneida Indian Nation v. inclusive community-driven process. Native Hawaiian government in place, County of Oneida, 414 U.S. 661 (1974), The Federal Government’s only role is and no procedure for reestablishing a the Plains, Kansas Indians, 72 U.S. (5 deciding whether the request satisfies formal government-to-government Wall.) 737 (1867), the Southwest, the rule’s requirements, enabling the relationship should such a government Sandoval, 231 U.S. at 46, the Pacific Secretary to reestablish a formal reorganize. Northwest, Washington v. Yakima government-to-government relationship Authority.2 The authority to issue this Indian Nation, 439 U.S. 463 (1979), and with the Native Hawaiian government. rule is vested in the Secretary by 25 Alaska, Organized Village of Kake v. Moreover, if a Native Hawaiian U.S.C. 2, 9, 479a, 479a–1; 43 U.S.C. Egan, 369 U.S. 60 (1962), all fall within government reorganizes, it will be for 1457; Act of January 23, 2004, sec. 148, Congress’s Indian affairs power. See that government to decide whether to 118 Stat. 445; and 5 U.S.C. 301. See also Solicitor’s Opinion, Status of Alaskan seek to reestablish a formal government- United States v. Holliday, 70 U.S. 407, Natives, 53 I.D. 593, 605 (Decisions of to-government relationship with the 419 (1865) (‘‘In reference to all matters the Department of the Interior, 1932) (It United States. The process established of [tribal status], it is the rule of this is ‘‘clear that no distinction has been or by this rule is optional, and Federal court to follow the action of the can be made between the Indians and action would occur only upon an executive and other political other natives of Alaska so far as the laws express formal request from the departments of the government, whose and relations of the United States are reorganized Native Hawaiian more special duty it is to determine concerned whether the Eskimos and government. such affairs.’’). other natives are of Indian origin or not Existing Federal Legal Framework. In Congress has plenary power with as they are all wards of the Nation, and adopting this rulemaking, the respect to Indian affairs. See Michigan v. their status is in material respects Department must adhere to the legal Bay Mills Indian Cmty., 134 S. Ct. 2024, similar to that of the Indians.’’); Felix framework, discussed above, that 2030 (2014); United States v. Lara, 541 Cohen’s Handbook of Federal Indian Congress already established to govern U.S. 193, 200 (2004); Morton v. Mancari, Law, at 401, 403 (1942 ed.) (Constitution relations with the Native Hawaiian 417 U.S. 535, 551–52 (1974). Congress’s is source of authority over Alaska community. The existing body of plenary power over Indian affairs flows Natives). So too, Congress’s Indian legislation makes plain that Congress in part from the Indian Commerce affairs power under the Constitution determined repeatedly, over a period of Clause, which authorizes Congress to extends to the Native Hawaiian almost a century, that the Native ‘‘regulate Commerce with . . . Indian community. See Organic Act (applying 3 Hawaiian population is an existing Tribes.’’ U.S. Const. art. I, sec. 8, cl. 3. Constitution to Territory of Hawaii and Native community within the scope of declaring all persons who were citizens the Federal Government’s powers over 2 Effective September 1, 2016, the U.S. House of of the Republic of Hawaii on August 12, Native American affairs and with which Representatives’ Office of the Law Revision Counsel the United States has already reclassified certain statutory provisions in Title 25 cited in the proposed rule. Because the reclassified a discovery made before the memory of man’’); acknowledged or recognized an ongoing version of Title 25 is not widely available in printed Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, 572– special political and trust relationship. form as of the date of this publication, the 74 (1823) (referring to Indians as ‘‘original Congress described this trust Department retained the statutory citations inhabitants’’ or ‘‘natives’’ who occupied the New relationship, for example, in findings referenced in the proposed rule. The new citations World before discovery by ‘‘the great nations of and more information about the reclassification of Europe’’). enacted as part of the Native Hawaiian Title 25 can be found at: http://uscode.house.gov/ At the time of the Framers and in the nineteenth Education Act, 20 U.S.C. 7512 et seq., editorialreclassification/t25/index.html (last visited century, the terms ‘‘Indian,’’ ‘‘Indian affairs,’’ and and the Native Hawaiian Health Care Sept. 14, 2016). ‘‘Indian tribes’’ were used to refer to the indigenous Improvement Act, 42 U.S.C. 11701 et 3 ‘‘The term ‘‘Indian’’ was first applied by peoples not only of the Americas but also of the Columbus to the native people of the New World Caribbean and areas of the Pacific extending to seq. Those findings observe that based on the mistaken belief that he had found a Australia, New Zealand, and the Philippines. See, ‘‘[t]hrough the enactment of the sea route to India. The term has been understood e.g., W. Dampier, A New Voyage Around the World Hawaiian Homes Commission Act, ever since to refer to the indigenous people who (1697); Joseph Banks, The Endeavor Journal of Sir 1920, Congress affirmed the special inhabited the New World before the arrival of the Joseph Banks (1770); William Bligh, Narrative of first Europeans. See Worcester v. Georgia, 31 U.S. the Mutiny on the Bounty (1790); A.F. Gardiner, relationship between the United States (6 Pet.) 515, 544 (1832) (referring to Indians as Friend of Australia (1830); James Cook, A Voyage and the Native Hawaiians,’’ 20 U.S.C. ‘‘those already in possession [of the land], either as to the Pacific Ocean (1784) (referring to Native 7512(8); see also 42 U.S.C. 11701(13), aboriginal occupants, or as occupants by virtue of Hawaiians).

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71286 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

1898 citizens of the United States); see Hawaiian community. Congress also The former is a subset of the latter, so also Nationality Act of 1940, 54 Stat. charged the Secretary with the duty to every HHCA Native Hawaiian is by 1137, 1138 (making every ‘‘person born ‘‘effectuate and implement the special definition a Native Hawaiian. But the in the United States to a member of an legal relationship between the Native converse is not true: Some Native Indian, Eskimo, Aleutian, or other Hawaiian people and the United Hawaiians are not HHCA Native aboriginal tribe’’ a citizen). States.’’ Act of January 23, 2004, sec. Hawaiians. Exercising this plenary power over 148, 118 Stat. 445. The Secretary’s As used in the rule, the term ‘‘HHCA Indian affairs, Congress delegated to the promulgation of a process and criteria Native Hawaiian’’ means a Native President the authority to ‘‘prescribe by which the United States may Hawaiian individual who meets the such regulations as he may think fit for reestablish a formal government-to- definition of ‘‘native Hawaiian’’ in carrying into effect the various government relationship with a HHCA sec. 201(a)(7), 42 Stat. 108 provisions of any act relating to Indian reorganized Native Hawaiian (1921), and thus has at least 50 percent affairs, and for the settlement of the government whose request satisfies the Native Hawaiian ancestry, regardless of accounts of Indian affairs.’’ 25 U.S.C. 9. rule’s requirements simply whether the individual resides on Congress charged the Secretary with acknowledges and implements what Hawaiian home lands, is an HHCA directing, consistent with ‘‘such Congress already made clear on more lessee, is on a wait list for an HHCA regulations as the President may than 150 occasions, stretching back lease, or receives any benefits under the prescribe,’’ the ‘‘management of all nearly a century. See, e.g., 12 U.S.C. HHCA. Satisfying this definition Indian affairs and of all matters arising 1715z 13b; 20 U.S.C. 80q et seq.; 20 generally requires that documentation out of Indian relations.’’ 25 U.S.C. 2. U.S.C. 7511 et seq.; 25 U.S.C. 3001 et demonstrating eligibility under HHCA And Congress expressly authorized the seq.; 25 U.S.C. 4221 et seq.; 42 U.S.C. sec. 201(a)(7) be available, such as Secretary to supervise ‘‘public business 2991 et seq.; 42 U.S.C. 3057g et seq.; 42 official Department of Hawaiian Home relating to . . . Indians,’’ 43 U.S.C. U.S.C. 11701 et seq.; 54 U.S.C. 302706; Lands (DHHL) records or other State 1457(10), and to ‘‘prescribe regulations HHCA, 42 Stat. 108; Admission Act, 73 records. See response to comment for the government of [the Department Stat. 4; Apology Resolution, 107 Stat. (1)(c)(1) below for further discussion. of the Interior] . . . [and for] the 1510; HHLRA, 109 Stat. 357 (1995). The availability of such documentation distribution and performance of its Reestablishment of a formal may be attested to by a sworn statement business,’’ 5 U.S.C. 301. government-to-government relationship which, if false, is punishable under Congress recognized and ratified its would allow the United States to more Federal or state law. See, e.g., Haw. Rev. delegation of authority to the Secretary effectively implement the special Stat. 710–1062 (2016). Alternatively, a to recognize self-governing Native political and trust relationship that sworn statement of a close family American groups in the Federally Congress established between the relative who is an HHCA Native Recognized Indian Tribe List Act of United States and the Native Hawaiian Hawaiian may be used to establish that 1994, 108 Stat. 4791 (the List Act). See community and administer the Federal a person meets the HHCA’s definition. 25 U.S.C. 479a & note (recognizing the programs, services, and benefits that The term ‘‘Native Hawaiian,’’ as used Secretary’s authority to acknowledge Congress created specifically for the in the rule, means an individual who is that Native American groups ‘‘exist as Native Hawaiian community. As a descendant of the aboriginal people an Indian tribe’’). The Congressional discussed above, Native Hawaiians are who, prior to 1778, occupied and findings included in the List Act indigenous people of the United States exercised sovereignty in the area that confirm the ways in which an Indian who have retained inherent sovereignty now constitutes the State of Hawaii. tribe gains acknowledgment or and with whom Congress established a This definition flows directly from recognition from the United States, special political and trust relationship multiple Acts of Congress. See, e.g., 12 including that ‘‘Indian tribes presently through a course of dealings over many U.S.C. 1715z–13b(a)(6); 25 U.S.C. may be recognized by Act of Congress decades. Congress repeatedly regulated 3001(10); 25 U.S.C. 4221(9); 42 U.S.C. . . . .’’ 25 U.S.C. 479a note. Here, the affairs of the Native Hawaiian 254s(c); 42 U.S.C. 11711(3). Satisfying Congress recognized Native Hawaiians community as it has with other Indian this definition generally requires that through more than 150 separate statutes. tribes, consistent with its authority records documenting generation-by- At the same time, the language of the under the Constitution. Hence, generation descent be available, such as List Act’s definition of the term ‘‘Indian § 50.44(a) of the final rule states that enumeration on a roll or list of Native tribe’’ is broad and encompasses the upon reestablishment of the formal Hawaiians certified by a State of Hawaii Native Hawaiian community. See 25 government-to-government relationship, commission or agency under State law, U.S.C. 479a(2).4 the Native Hawaiian Governing Entity where the enumeration was based on Over many decades and more than will have the same formal government- documentation that verified descent, or 150 statutes, Congress exercised its to-government relationship under the through current or prior enrollment as a plenary power over Indian affairs to United States Constitution as the formal Native Hawaiian in a Kamehameha recognize that the Native Hawaiian government-to-government relationship Schools program. The availability of community exists as an Indian tribe between the United States and a such documentation may be attested to within the meaning of the Constitution. federally-recognized tribe in the by sworn statement which, if false, is Through these statutes, the United continental United States (subject to the punishable under state law. A Native States maintains a special political and limitation on programs, services, and Hawaiian may also sponsor a close trust relationship with the Native benefits appearing in § 50.44(d)), will family relative through a sworn have the same inherent sovereign statement attesting that the relative 4 As discussed more fully in Section (IV)(C), governmental authorities, and will be meets the definition of Native Hawaiian. Native Hawaiians would not be added to the list subject to the same plenary authority of Enumeration in official DHHL records that the Secretary is required to publish under sec. Congress, see § 50.44(b). demonstrating eligibility under the 104 of the List Act, 25 U.S.C. 479a–1(a), because Definitions. Congress employs two HHCA also would satisfy the definition Congress provides a separate suite of programs and services targeted directly to Native Hawaiians and definitions of ‘‘Native Hawaiians,’’ of ‘‘Native Hawaiian,’’ as it would show not through programs broadly applicable to Indians which the rule labels as ‘‘HHCA Native that a person is an HHCA Native in the continental United States. Hawaiians’’ and ‘‘Native Hawaiians.’’ Hawaiian and by definition a ‘‘Native

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00010 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 71287

Hawaiian’’ as that term is used in this demonstrate broad-based community Hawaiian registered voters, nearly rule. support. Accordingly, the rule focuses 65,000 of whom cast ballots in that off- In keeping with the framework on the number who vote in favor of the year (i.e., non-presidential) Federal created by Congress, the rule requires governing document rather than the election. That same year, the total that, to reestablish a formal government- number of voters who participate in the number of registered voters in Hawaii to-government relationship with the ratification referendum. Specifically, the (Native Hawaiian and non-Native United States, a Native Hawaiian rule requires a minimum of 30,000 Hawaiian) was about 601,000, and about government must have a constitution or affirmative votes from Native Hawaiian 413,000 of those voters cast a ballot. By other governing document ratified both voters, including a minimum of 9,000 the 2012 general presidential election, by a majority vote of Native Hawaiians affirmative votes from HHCA Native Hawaii’s total number of registered and by a majority vote of those Native Hawaiians, as an objective measure to voters (Native Hawaiian and non-Native Hawaiians who qualify as HHCA Native ensure that the vote represents the Hawaiian) increased to about 706,000, Hawaiians. Thus, regardless of which views of the Native Hawaiian of whom about 437,000 cast a ballot. Congressional definition is used, a community as a whole. The Secretary And in the 2014 general gubernatorial majority of the voting members of the will only evaluate a request under this election, the equivalent figures were community with which Congress rule that meets this minimum broad- about 707,000 and about 370,000, established a trust relationship through based community participation respectively. The Department concludes existing legislation will confirm their threshold. that such turnouts are a valid measure support for the Native Hawaiian In addition to this minimum of broad-based participation in government’s structure and fundamental affirmative-vote threshold, the rule elections. organic law. creates a presumption of broad-based Second, to determine the turnout Ratification Process. The rule sets community support if the affirmative numbers today that indicate broad- forth certain requirements for the votes exceed 50,000, including based participation by the Native process of ratifying a constitution or affirmative votes from at least 15,000 Hawaiian community, the Department other governing document, including HHCA Native Hawaiians. If a request estimated the percentage of Native requirements that the ratification meets these thresholds (50,000 and Hawaiian voters within that general referendum be free and fair, that there 15,000), the Secretary would be well voter turnout. This estimate is based on be public notice before the referendum justified in finding broad-based actual voter data from 1988 to 1998 (see occurs, and that there be a process for community support among Native table below). The Department then ensuring that all voters are actually Hawaiians. adjusted that estimate to account for the eligible to vote. Recognizing that the Explanation of data used to support growth in the number of Native community may seek further thresholds. There is no existing Hawaiians as a percentage of the general explanation on the technical aspects of applicable numerical standard for population of Hawaii, and projected the the rule, including the ratification measuring broad-based community percentage of Native Hawaiians within process explained below and the use of support. The Department accordingly the reported voter turnout in recent sworn statements explained in Section applied its expertise to develop such a elections in Hawaii, discussed below in (IV)(B), the Department will provide standard based on available data. For more detail. technical assistance at the request of the reasons explained in the proposed rule Third, the Department adjusted the Native Hawaiian community. (see 80 FR at 59124–25) and in this estimate upward to account for out-of- Form of ratification. The rule does not rule’s Responses to Comments (Section State Native Hawaiian voters. These fix the form of the ratification (IV)(B)), the Department took a range of calculations result in a range of the referendum. For example, the evidence into account, including actual number of anticipated Native Hawaiian ratification could be an integral part of data on voter turnout in the State of voters, between 60,000 and 100,000, the process by which the Native Hawaii, which indicates that the above which the Department determined Hawaiian community adopts its thresholds are appropriate and indicates broad-based community governing document, or the referendum achievable in practice. Based on the participation. The minimum required could take the form of a special election volume of comments received on the number of affirmative votes by Native held solely for the purpose of measuring issue during the proposed-rule stage, the Hawaiians is based on the low-end Native Hawaiian support for a governing Department determined there is a need figure of this range, i.e., 30,000. document adopted through other means. for further explanation about how it Finally, the Department estimated the The ratification referendum by the calculated the range of voter turnout. number of affirmative votes required of Native Hawaiian community need not Described below is one of the reasoned HHCA Native Hawaiians to demonstrate be the same election in which the methods the Department used to their broad-based support as 30 percent Native Hawaiian community initially calculate the numerical thresholds for of the Native Hawaiian threshold, since adopts a governing document. The community support as well as the HHCA Native Hawaiian adults are referendum could be conducted ranges for affirmative votes. The approximately 30 percent of the Native simultaneously or separately for both following method illustrates one of the Hawaiian adult population, as discussed HHCA Native Hawaiians and Native many reasonable methods for in more detail below. Hawaiians. The ratification process calculating the required thresholds. must, however, provide separate vote Supporting Explanation tallies for (a) HHCA Native Hawaiian Summary Different approaches result in voters and (b) all Native Hawaiian The Department first reviewed Native different estimates based on the broad voters. Hawaiian voter turnout numbers in range of evidence that the Department Thresholds indicating broad-based Hawaii for national and State elections examined. The Department is reassured, community support. To ensure that the and determined those numbers indicate however, by the fact that different ratification vote reflects the views of the broad-based participation within Hawaii methods produced roughly similar whole Native Hawaiian community, the in those elections. Actual voter data estimates. Weighing the available data, turnout in the ratification referendum from 1998 supports this conclusion. and applying different methods to must be sufficiently large to There were just over 100,000 Native analyze those data, the Department

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71288 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

concluded that it is reasonable to expect year-to-year consistency of turnout Department analyzed the last six that a Native Hawaiian ratification figures from regular general elections in elections in which separate voter- referendum would have a turnout Hawaii suggests strong patterns that are turnout figures specifically for Native somewhere in the range between 60,000 likely to be replicated in a Native Hawaiians are available (1988 to 1998), and 100,000, although a figure outside Hawaiian ratification referendum. as well as overall (Native Hawaiian and that range is possible. The Department Generally, more recent data are non-Native Hawaiian) voter-turnout concludes that turnout within this range preferable to older data when projecting figures for 1988 to 2014, the date of the demonstrates broad-based participation. future turnout. If Native Hawaiian voter- most recent biennial general election. Of course, turnout in a Native turnout data for the most recent The figures are reproduced in the Hawaiian ratification referendum could elections existed, the Department would following table: diverge from Native Hawaiian turnout have considered it. Because such data in a regular general election; but the are not available, however, the

Overall voter turnout (native Native Hawaiian and Hawaiian Year non-native Native Hawaiian voter turnout ** voters as % of Hawaiian, voter turn- combined) * out ***

1988 ...... 368,567 48,238 ...... 13.09 1990 ...... 354,152 49,231 ...... 13.90 1992 ...... 382,882 51,029 ...... 13.33 1994 ...... 377,011 55,424 ...... 14.70 1996 ...... 370,230 52,102 ...... 14.07 1998 ...... 412,520 64,806 ...... 15.71 2000 ...... 371,379 Unknown. 2002 ...... 385,462 Unknown. 2004 ...... 431,662 Unknown. 2006 ...... 348,988 Unknown. 2008 ...... 456,064 Unknown. 2010 ...... 385,464 Unknown. 2012 ...... 437,159 Unknown. 2014 ...... 369,642 Unknown. * Data from the Hawaii Office of Elections, which recorded on its Web site the actual voter-turnout figures from presidential-year (e.g., 2012, 2008, 2004) and off-year or gubernatorial (e.g., 2014, 2010, 2006) general elections in Hawaii. ** For biennial general elections prior to the Supreme Court’s decision in Rice v. Cayetano, 528 U.S. 495 (2000), the Office of Elections’ Web site shows voter-turnout figures for the State as a whole and also specifically for Native Hawaiian voters (because only Native Hawaiian voters were qualified to vote in OHA elections prior to 2000). Starting in 2000, the same source shows voter-turnout figures only for the State as a whole, that is, for the undifferentiated combination of Native Hawaiians and non-Native Hawaiians. *** Native Hawaiian voters average 14.13 percent of the voter turnout in these six elections.

These figures show that overall population in the 2000 and 2010 Hawaiian civic organizations in the turnout generally increased during the Federal decennial censuses). continental United States. 1988-to-2014 period, although not Applying the population growth Notwithstanding the number of always smoothly, and that Native percentage of 14.4 to the voter-turnout comments, the Department concludes Hawaiian turnout was doing the same numbers and then applying the Native that the rate of participation of this during the 1988-to-1998 period, but at a Hawaiian voter-turnout percentage population in a nation-building process somewhat faster rate than the overall figures to those adjusted numbers is likely to be considerably lower than turnout was increasing. These trends are results in a potential turnout of in-State that of in-State Native Hawaiians. consistent with census data showing Native Hawaiians that ranges from a low One indicator of lower out-of-State Hawaii’s population increasing and of about 52,300 (1.144 × 348,988 × Native Hawaiian voter turnout is the showing Hawaii’s Native Hawaiian 0.131= 52,300) to a high of about 81,913 relatively low number of out-of-State population increasing more rapidly than (1.144 × 456,064 × 0.157 = 81,913). The Native Hawaiians on the Native its non-Native population. Department concludes that this voter- Hawaiian Roll Commission’s (NHRC’s) As the table above shows, overall turnout range would reflect broad-based Kanaiolowalu roll. Although the precise turnout for this entire period (1988 to community participation of in-State number of out-of-State Native 2014) ranged from a low of 348,988 to Native Hawaiians. Hawaiians on the roll is not public a high of 456,064. The Native Hawaiian The rule also accounts for Native information, delegates were initially percentage of the overall turnout, for the Hawaiians residing out-of-State who can apportioned based on their percentage years for which the table contains such participate in the ratification participation in the roll. Seven of the 40 data (1988 to 1998), ranged from a low referendum. The out-of-State Native delegates were apportioned to out-of- of 13.1 percent in 1988 (48,238 divided Hawaiian population is roughly State Native Hawaiians, indicating that by 368,567) to a high of 15.7 percent in comparable in size to the in-State Native approximately 17.5 percent of the 1998 (64,806 divided by 412,520). Since Hawaiian population. Many Native persons on the roll are from out-of-State, 1998, the fraction of the State’s Hawaiians living outside Hawaii remain even though approximately half of all population that is Native Hawaiian grew strongly engaged with the Native Native Hawaiians reside out-of-State. by about 14.4 percent (this figure is Hawaiian community, as reflected in the Based on these figures, the Department derived by extrapolating from data substantial number of comments on this projected a significantly lower showing Hawaii’s Native Hawaiian rule from Native Hawaiians residing participation rate for out-of-State Native population and Hawaii’s total out-of-State and by many Native Hawaiians, and adjusted its in-State

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00012 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 71289

voter turnout figures upward by expect that a Native Hawaiian as the current population of Native approximately 20-percent to reflect ratification referendum would have a Hawaiian voters. anticipated participation by out-of-State turnout somewhere in the range The conclusion that the median voter Native Hawaiians. Since the seven out- between 60,000 and 100,000, although a in an election held in 2016 (and for the of-State delegates are equivalent to 21.2 figure outside that range is possible. next several years) is likely to fall into percent of the 33 in-State delegates, the A majority vote is necessary to the 1965-to-1979 group is bolstered by 20-percent adjustment factor is support a governing document. With data from the Hawaiian Sovereignty generally consistent with available voter turnout of 60,000, a majority Elections Council’s 1996 ‘‘Native information about the likely rate of would require over 30,000 affirmative Hawaiian Vote.’’ In that election, the engagement of the out-of-State Native votes; with a voter turnout of 100,000, median voters were in their low- to mid- Hawaiian population (33 times 120 a majority would require over 50,000 40s, roughly the equivalent of a voter percent equals approximately 40 affirmative votes. On this basis, the today who was born in 1971 or 1972. delegates total). Department determined that 30,000 See Hawaiian Sovereignty Elections Some data would point to a lower affirmative votes (where they represent Council, Final Report 28 (Dec. 1996). adjustment factor and some would point a majority of those cast) is the rule’s Although the data from DHHL records to a higher factor. For example, in 1996 minimum threshold for potentially are of limited relevance here, the rule’s when the Hawaiian Sovereignty showing broad-based community 9,000- and 15,000-affirmative-vote Elections Council (HSEC) conducted its support, and 50,000 affirmative votes thresholds appear to be in harmony ‘‘Native Hawaiian Vote’’ election, which (where they represent a majority of with key DHHL data. According to the asked Native Hawaiians whether they those cast) creates a presumption of 2014 DHHL Annual Report there were wished to elect delegates to propose a such support. 9,838 leases of Hawaiian home lands as Native Hawaiian government, only 3.2 Finally, for the HHCA Native of June 30, 2014, of which 8,329 were percent of the more than 30,000 Hawaiians, each figure in the rule is residential (the remaining leases were returned ballots came from out of State. exactly 30-percent of the equivalent for either agricultural or pastoral land). The Department did not use this low figure for Native Hawaiians. As Therefore, it is reasonable to assume percentage, however, as it appears to be explained in detail below, the there are at least 8,329 families living in attributable, at least in part, to the fact Department’s best estimate is that adult homestead communities throughout that the HSEC’s list of potential voters HHCA Native Hawaiians comprise Hawaii, in addition to the nearly 28,000 contained relatively few Native approximately 30 percent of adult individual applicants awaiting a Hawaiians living outside Hawaii. See Native Hawaiians. This estimate is homestead lease award. And a Hawaiian Sovereignty Elections based not on DHHL records, but on the significant number of HHCA Native Council, Final Report 28 (Dec. 1996). Department’s best estimate of the Hawaiians likely are neither living in Census data is another source of respective populations of the two homestead communities nor awaiting a information about the potential groups. homestead lease award. The DHHL data participation in, or affiliation with, the The derivation of this 30-percent therefore are consistent with the Native Hawaiian community is the figure requires some background. Justice Department’s conclusion that it is distribution of speakers of the Hawaiian Breyer’s concurring opinion in Rice v. reasonable to expect that a ratification language. Census data from 2009 to Cayetano, 528 U.S. 495, 526 (2000), referendum would have a turnout of 2013 indicate that about 29 percent of cited the Native Hawaiian Data Book, HHCA Native Hawaiians somewhere in U.S. residents who speak the Hawaiian which indicated that about 39 percent of the range between 18,000 and 30,000, language (7,595 out of 26,205) resided the Native Hawaiian population in although a figure outside that range is out-of-State. Although use of native Hawaii in 1984 had at least 50 percent possible. And to win a majority vote in language indicates strong ties to the Native Hawaiian ancestry and therefore that range would require over 9,000 (for community, the Department gave the would satisfy the rule’s definition of an a turnout of 18,000) to over 15,000 (for language data less weight than HHCA Native Hawaiian. See Native a turnout of 30,000) affirmative votes information on actual participation in Hawaiian Data Book (2015), available at from HHCA Native Hawaiians. On this voting or other political or nation- http://www.ohadatabook.com. The 1984 basis, the Department determined that building processes, because official data included information by age group, 9,000 affirmative votes from HHCA efforts in Hawaii to suppress the which suggested that the fraction of the Native Hawaiians (where they represent Hawaiian language in the early Native Hawaiian population with at a majority of those cast) is the rule’s twentieth century artificially alters the least 50 percent Native Hawaiian minimum threshold for potentially significance of this distribution. ancestry is likely declining over time. showing broad-based community In sum, the Department concludes Specifically, the 1984 data showed that support and 15,000 affirmative votes that 20 percent is a reasonable Native Hawaiians with at least 50 from HHCA Native Hawaiians (where adjustment factor given the limits of percent Native Hawaiian ancestry they represent a majority of those cast) available data and the uncertainties constituted about 20.0 percent of Native creates a presumption of such support. with respect to participation of the out- Hawaiians born between 1980 and 1984, The Native Hawaiian Government’s of-State population. Applying that 20- about 29.5 percent of Native Hawaiians Constitution or Governing Document. percent adjustment factor for out-of- born between 1965 and 1979, about 42.4 The form or structure of the Native State voters to the in-State turnout percent of Native Hawaiians born Hawaiian government is left for the estimate (52,300 to 81,913) results in a between 1950 and 1964, and about 56.7- community to decide. Section 50.13 of total range (in-State plus out-of-State) percent of Native Hawaiians born the rule does, however, set forth certain from about 62,760 to about 98,296. This between 1930 and 1949. The median minimum requirements for range is an estimate, based on one voter in most U.S. elections today (and reestablishing a formal government-to- specific methodology. This range—like for the next several years) is likely to fall government relationship with the the ranges produced by many other into the group born between 1965 and United States. The constitution or other methodologies, employing a broad set of 1979. Therefore, the current population governing document of the Native data—comports with the Department’s of HHCA Native Hawaiian voters is Hawaiian government must provide for conclusion that it is reasonable to estimated to be about 30 percent as large ‘‘periodic elections for government

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71290 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

offices,’’ describe procedures for chooses. Such political subdivisions Hawaiian Governing Entity would have proposing and ratifying constitutional could be defined by island, by virtually the same legal basis and amendments, and not violate Federal geographic districts, by historic structure as the formal government-to- law, among other requirements. circumstances, or otherwise in a fair and government relationship between the The governing document must also reasonable manner. Allowing for United States and federally-recognized provide for the protection and political subdivisions is consistent with tribes in the continental United States. preservation of the rights of HHCA principles of self-determination Accordingly, the government-to- beneficiaries. In addition, the governing applicable to Native groups, and government relationship with the Native document must protect and preserve the provides some flexibility should Native Hawaiian Governing Entity would have liberties, rights, and privileges of all Hawaiians wish to provide for very different characteristics from the persons affected by the Native Hawaiian subdivisions with whatever degree of government-to-government relationship government’s exercise of governmental autonomy the community determines is that formerly existed with the Kingdom powers in accord with the Indian Civil appropriate, although only a single of Hawaii. The Native Hawaiian Rights Act of 1968, as amended (25 formal government-to-government Governing Entity would remain subject U.S.C. 1301 et seq.). The Native relationship with the United States to the same authority of Congress and Hawaiian community would make the would be established. the United States to which federally- decisions as to the institutions of the The Formal Government-to- recognized tribes in the continental new government, the form of any Government Relationship. Statutes such United States are subject and would legislative body, the means for ensuring as the National Historic Preservation remain ineligible for Federal Indian independence of the judiciary, whether Act of 1966, the Native American programs, services, and benefits certain governmental powers would be Graves Protection and Repatriation Act, provided to Indian tribes in the centralized in a single body or and the HHLRA established specific continental United States and their decentralized to local political processes for interaction between the members (including funding from the subdivisions, and other structural Native Hawaiian community and the Bureau of Indian Affairs and the Indian questions. U.S. government. The rule provides a Health Service) unless Congress As to concerns that a subsequent process and criteria for reestablishing a expressly declared otherwise. amendment to a governing document ‘‘formal government-to-government The rule also clarifies that neither this could impair the safeguards of § 50.13, relationship,’’ which would, among rulemaking nor granting a request Federal law provides both defined other benefits, enable the Native protections for HHCA beneficiaries and Hawaiian community to work directly submitted under the rule would affect specific guarantees of individual civil with the Federal Government to the rights of HHCA beneficiaries or the rights, and such an amendment could implement additional appropriate status of HHCA lands. Section 50.44(f) not contravene applicable Federal law. Native Hawaiian programs. The rule makes clear that reestablishment of the The drafters of the governing document requires that the request to reestablish a formal government-to-government may also choose to include additional formal government-to-government relationship does not affect the title, provisions constraining the amendment relationship reflect the will of the jurisdiction, or status of Federal lands process; the Native Hawaiian Native Hawaiian people through broad- and property in Hawaii. This provision community would decide that question based community support. does not affect lands owned by the State in the process of drafting and ratifying Submission and Processing of the or provisions of state law. Cf. Haw. Rev. that document. Request. In addition to establishing a set Stat. 6K–9 (2016) (‘‘[T]he resources and Membership Criteria. As the Supreme of criteria for the Secretary to apply in waters of Kahoolawe shall be held in Court explained, a Native community’s reviewing a request from a Native trust as part of the public land trust; ‘‘right to define its own membership Hawaiian government, the rule sets out provided that the State shall transfer . . . has long been recognized as central the procedure by which the Department management and control of the island to its existence as an independent will receive and process a request from and its waters to the sovereign native political community.’’ Santa Clara the authorized officer of the governing Hawaiian entity upon its recognition by Pueblo v. Martinez, 436 U.S. 49, 72 n.32 body seeking to reestablish a formal the United States and the State of (1978). The rule therefore provides only government-to-government relationship. Hawaii.’’). Section 50.44 also explains minimal guidance about what the This rule includes processes for that the reestablished government-to- governing document must say with submitting a request, for public government relationship would more regard to membership criteria. HHCA comment on any request received, and effectively implement statutes that Native Hawaiians must be included, for issuing a final decision on the specifically reference Native Hawaiians, non-Natives must be excluded, and request. Because Congress has already but would not extend the programs, membership must be voluntary and acknowledged or recognized the Native services, and benefits available to Indian relinquishable. But the community itself Hawaiian community, the Secretary’s tribes in the continental United States to would otherwise be free to decide its determination in this part is limited to the Native Hawaiian Governing Entity membership criteria. the process for reestablishing a formal or its members, unless a Federal statute Single Government. The rule provides government-to-government relationship expressly authorizes it. These for reestablishment of relations with with the Native Hawaiian Governing provisions also state that if the Secretary only a single sovereign Native Hawaiian Entity. Additional processes are not determines to grant the request to government. This limitation is required. reestablish a formal government-to- consistent with Congress’s enactments Other Provisions. The rule also government relationship, the with respect to Native Hawaiians, which contains provisions governing technical Department will publish notice in the treat members of the Native Hawaiian assistance, clarifying the Federal Register and the determination community as a single indigenous implementation of the formal will be effective 30 days after people. The Native Hawaiian government-to-government relationship, publication, at which time the formal community will decide what form of and addressing related issues. The rule government-to-government relationship government to adopt, and may provide explains that the formal government-to- will be reestablished. Individuals’ for political subdivisions if it so government relationship with the Native eligibility for any program, service, or

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00014 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 71291

benefit under any Federal law that was • Adds definitions of ‘‘sponsor,’’ for the Native Hawaiian Governing in effect before the final rule’s effective ‘‘State,’’ and ‘‘sworn statement’’ (§ 50.4); Entity. And no other current Federal date would be unaffected. Likewise, the • Eliminates the U.S. citizenship law authorizes such action. See Section rule does not affect Native Hawaiian requirement (§§ 50.4; 50.12); (IV)(B). rights, protections, privileges, • Provides that the Native Hawaiian • Indian Gaming Regulatory Act. The immunities, and benefits under Article community itself must prepare a list of Native Hawaiian Governing Entity may XII of the Constitution of the State of eligible voters to ratify its governing not conduct gaming activities under the Hawaii. This rule would not alter the document and clarifies that reliance on Indian Gaming Regulatory Act (IGRA). sovereign immunity of the United States existing rolls prepared by others is See Section (IV)(B). or the sovereign immunity of the State optional (§ 50.12(a)); • Federally Recognized Indian Tribe of Hawaii. • Clarifies means for individuals to List Act of 1994 (List Act). The Native demonstrate a right to vote in the Hawaiian Governing Entity will not (A) How the Rule Works ratification referendum, e.g., individuals appear on the list of federally- If a reorganized Native Hawaiian may use sworn statements for self- recognized Indian tribes required under government decides to seek a formal certification or for sponsoring a close the List Act. See Section (IV)(C). family relative to demonstrate ‘‘HHCA government-to-government relationship (D) Section-by-Section Analysis with the United States, it must submit Native Hawaiian’’ and ‘‘Native a written request to the Secretary, as Hawaiian’’ status for purposes of voting This portion of the preamble previews provided in § 50.20. The request must in the ratification referendum the final rule and highlights certain (§ 50.12(b), (c)); aspects of the rule that may benefit from include a written narrative with • supporting documentation thoroughly Increases the comment period for additional explanation. the public to submit comments and addressing the elements set forth in Subpart A—General Provisions, evidence on a request to reestablish a § 50.10. If the Secretary determines that Sections 50.1, 50.2, 50.3, and 50.4 the request appears to contain these government-to-government relationship These provisions establish the elements and is consistent with the to 60 days, provides the Department 20 purpose of this rule and explain that if affirmative-vote requirements set out in days after the close of that comment a Native Hawaiian government requests § 50.16(g)–(h), the Secretary will publish period to post comments/evidence to its a formal government-to-government notice of receipt of the request in the Web site (§ 50.30), and permits the relationship with the United States, as Federal Register and post the request to requester 60 days to respond to any described in § 50.10, such a relationship the Department’s Web site. The public such comments/evidence (§ 50.31); • will be reestablished only if the request will have the opportunity to comment Limits extensions of any deadline is granted as described in §§ 50.40 to on the request and submit evidence on under §§ 50.30 and 50.31 to a total of 90 50.43. The general provisions also whether the request meets the criteria days, provided that an extension request provide that the United States will described in § 50.16, and the requester is in writing and sets forth good cause reestablish a formal government-to- may respond to those comments or (§ 50.32); • Clarifies that if the Secretary is government relationship with only a evidence. The Secretary will review the unable to render a decision on a request single Native Hawaiian government. request to determine whether it meets within 120 days following close of the These provisions also define key the criteria described in § 50.16 and is comment periods, the Secretary will terms used throughout the rule. Native consistent with this part, along with any provide notice to the requester, and Hawaiian community and Native public comments and evidence and the include an explanation of the need for Hawaiian are defined in terms that requester’s responses to those comments more time and an estimate of when a encompass all the Native Hawaiians and evidence, to make a decision decision will be made (§ 50.40); recognized by Congress, while HHCA granting or denying the request. If the • Delays the effective date of the Native Hawaiian is limited to Native request is granted, the Secretary’s Secretary’s decision until 30 days after Hawaiians as defined in the HHCA. The decision will take effect 30 days after publication in the Federal Register rule defines Federal Indian programs, publication of a notice in the Federal (§ 50.42); and services, and benefits separately from Register and the requester will be • Further clarifies that Federal Native Hawaiian programs, identified as the Native Hawaiian reestablishment of the formal services, and benefits to parallel Governing Entity (or the official name government-to-government relationship Congress’s approach limiting eligibility stated in that entity’s governing does not affect the title, jurisdiction, or for specific programs, services, and document), and a formal government-to- status of Federal lands and property in benefits. Federal Indian programs, government relationship will be Hawaii (§ 50.44(f)). services, and benefits include, but are reestablished with the Native Hawaiian not limited to, those provided by the (C) Key Issues Governing Entity as the sole Bureau of Indian Affairs and the Indian representative sovereign government of The Department reviewed comments Health Service, which do not extend to the Native Hawaiian community. on a wide range of issues, but received Native Hawaiians. (B) Major Changes significant comment on a narrow set of key issues. These issues are more fully Subpart B—Criteria for Reestablishing a After the Department reviewed and addressed in responses to comments in Formal Government-to-Government considered public comments, it made Section (IV)(B) below, but are Relationship, Sections 50.10, 50.11, several key clarifications and changes in summarized here: 50.12, 50.13, 50.14, 50.15, and 50.16 this final rule (indicated below in • Land into trust. The Department’s These provisions collectively explain italics). The final rule: ability to take land into trust for the what the Native Hawaiian community • Includes the Native Hawaiian Native Hawaiian Governing Entity is must include in its request submitted community’s ability to more effectively constrained by Federal law. The Indian under this part. exercise its inherent sovereignty and Reorganization Act does not apply to Section 50.10 sets out the elements of self-determination as an additional Hawaii and therefore does not authorize the request itself. Those elements purpose of the rule (§ 50.1(a)); the Department to take land into trust include specific written narratives for

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71292 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

four elements, a ratified governing of a governing document, separate and the public, Members of Congress, State document that meets the requirements apart from any proceedings that would legislators, and community leaders. of § 50.13, a resolution of the Native follow the submission of a request Second, after careful review and Hawaiian governing body authorizing under this part. By their terms, §§ 50.43 analysis of the comments on the its officer to submit a request for a and 50.44 only apply following ANPRM, in October 2015 the government-to-government relationship, reestablishment of a formal government- Department issued a Notice of Proposed and the officer’s certification of that to-government relationship and define Rulemaking, Procedures for request. The narratives must describe: the implementation of that relationship. Reestablishing a Government-to- how the governing document reflects Government Relationship with the (IV) Public Comments on the Proposed the will of the Native Hawaiian Native Hawaiian Community, 80 FR Rule and Responses to Comments community (§ 50.11); who could 59113–132 (Oct. 1, 2015), setting forth participate in ratifying the governing (A) Overview an administrative procedure and criteria document, and how the community The Department actively sought that the Secretary would use if the distinguished HHCA Native Hawaiians public input in two stages on the rule’s Native Hawaiian community forms a from other Native Hawaiians (§ 50.12); administrative procedure and criteria unified government that then seeks a information about the ratification for reestablishing a formal government- formal government-to-government referendum (§ 50.14); and information to-government relationship with the relationship with the United States. The about the elections for government Native Hawaiian community. proposed rule did not provide a process offices (§ 50.15). The Department First, in June 2014, the Department for reorganizing a Native Hawaiian respects the Native Hawaiian published an ANPRM seeking input government, agreeing with many community’s self-determination, from leaders and members of the Native ANPRM commenters that the process of particularly through drafting a Hawaiian community and federally- drafting a constitution or other governing document. As a result, the recognized tribes in the continental governing document and reorganizing a rule’s provisions relating to the process United States. 79 FR 35296–303 (June government should be driven by the of drafting the community’s governing 20, 2014). The ANPRM asked five Native Hawaiian community, not by the document provide only minimum threshold questions: (1) Should the Federal Government. Over the course of criteria that must be satisfied for the Secretary propose an administrative rule a 90-day comment period that ended on Secretary to reestablish a formal that would facilitate the reestablishment December 30, 2015,5 the Department government-to-government relationship of a government-to-government again received extensive public with the community. And, while the relationship with the Native Hawaiian comments, including unique public rule text refers to ‘‘periodic elections for community? (2) Should the Secretary submissions and duplicate mass government offices identified in the assist the Native Hawaiian community mailings covering a wide range of governing document,’’ nothing in the in reorganizing its government, with issues. The issues discussed in Section rule precludes the establishment of (IV)(B) encompass the range of appointed positions as well. Section which the United States could reestablish a government-to-government significant issues presented in the 50.16 lists the eight criteria that the comments on the proposed rule. Secretary will consider when relationship? (3) If so, what process Comments came from Members of determining whether to reestablish a should be established for drafting and Congress, Hawaii State government formal government-to-government ratifying a reorganized government’s offices and legislators, academics, relationship. The final rule makes clear constitution or other governing members of the public residing in that, in determining whether the request document? (4) Should the Secretary Hawaii and in the continental United meets the criteria described in § 50.16, instead rely on the reorganization of a States, as well as individuals residing the Secretary may also consider whether Native Hawaiian government through a internationally. Specifically, many the request is consistent with this part. process established by the Native Native Hawaiian Civic Clubs and Native See §§ 50.40, 50.41. Hawaiian community and facilitated by the State of Hawaii, to the extent such Hawaiian community, legal, cultural, Subpart C—Process for Reestablishing a a process is consistent with Federal and business organizations, as well as Formal Government-to-Government law? (5) If so, what conditions should Relationship the Secretary establish as prerequisites 5 The comment period closed on Wednesday, This subpart addresses the procedural to Federal acknowledgment of a December 30, 2015, at 11:59 p.m. Eastern Time. The time zone of the submissions deadline was not aspects of the rule, from the mechanics government-to-government relationship indicated in the Federal Register document (80 FR of submission to the notice-and- with the reorganized Native Hawaiian 59113, 59114), though it was indicated on comment process. The final two government? The Department posed 19 www.regulations.gov. Additionally, the deadline sections, §§ 50.43 and 50.44, discuss the additional, specific questions occurred during a busy holiday period. The Department received 277 submissions within three impact and implementation of concerning the reorganization of a business days after the comment period closed, reestablishing a formal government-to- Native Hawaiian government and a with many of those comments arriving government relationship. Federal process for reestablishing a electronically to [email protected] (an email address The provisions of this rule are formal government-to-government set up specifically to receive comments during the comment period) in the early-morning hours of generally applicable only in response to relationship. The ANPRM marked the December 31 (Eastern Time), when it was still a specific request for the beginning of ongoing discussions with December 30 in Hawaii. The Department kept a reestablishment of a formal government- the Native Hawaiian community, running tally of all comments submitted to part50@ to-government relationship. Section consultations with federally-recognized doi.gov after the deadline. As of January 8, 2016, the Department received four more comments to 50.21 recognizes that the Department is tribes in the continental United States, [email protected] in addition to the 277. Given the prepared to provide technical assistance and input from the public at large. Department’s interest in considering the full range if requested. The rule does not, The Department received extensive of public comments, the confusion caused by however, create an individual interest or public comments on the ANPRM. The omitting time zone information in the Federal Register, and the volume of comments received cause of action allowing a challenge to Department received general comments, after the published deadline, the Department the Native Hawaiian community’s both supporting and opposing the determined to consider all public comments drafting, ratification, or implementation ANPRM, from individual members of received by January 8, 2016.

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00016 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 71293

the National Congress of American under international law. Others objected art. II, sec. 2, cl. 2 (Treaty Clause). These Indians, submitted comments. to any Federal process that pertains to constitutional provisions recognize and Numerous commenters expressed Native Hawaiian self-determination, provide the foundation for longstanding support for the Department’s proposal stating that the rule would violate the special relationships between without suggesting any changes and U.S. Constitution as impermissibly race- indigenous peoples and the Federal requested that the Department proceed based. Government, relationships that date to to implement the rule as quickly as All public comments received on the the earliest period of our Nation’s possible. Commenters who expressed ANPRM and the NPRM, along with history. When enacting Native Hawaiian general support frequently stated that supporting documents, are available in statutes, Congress has expressly stated the rule would provide a foundation for a combined docket at http:// in accompanying legislative findings achieving parity in Federal policy www.regulations.gov/#!docketDetail;D= that it was exercising its plenary power related to indigenous communities in DOI-2015-0005. under the Constitution over Native the United States. These commenters American affairs: ‘‘The authority of the recognized and anticipated that there (B) Responses to Significant Public Congress under the United States would be benefits to the Native Comments on the Proposed Rule Constitution to legislate in matters Hawaiian Governing Entity from The Department decided to proceed to affecting the aboriginal or indigenous working directly with the Federal the final-rule stage. As described in peoples of the United States includes Government to implement existing Section (III)(B) of this preamble, the the authority to legislate in matters Federal programs, and listed several Department made specific changes in affecting the native peoples of Alaska other perceived benefits of a response to public comments, including and Hawaii.’’ Native Hawaiian Health government-to-government relationship, clarifications to address specific Care Act, 42 U.S.C. 11701(17); see H.R. including the Native Hawaiian concerns. The Department appreciates Rep. No. 66–839, at 11 (1920) (finding Governing Entity’s ability to (in no the time commenters took to provide constitutional precedent for the HHCA particular order): (1) Acquire land and helpful information and valuable ‘‘in previous enactments granting create affordable housing solutions for suggestions. Responses to significant its members; (2) enable more direct and comments relating to specific issues as Indians . . . special privileges in effective management of assets and well as comments relating to particular obtaining and using the public lands’’); resources by Native Hawaiians in sections of the proposed rule follow see also Native Hawaiian Education Act, accordance with customary and below. 20 U.S.C. 7512(12)(B), (D) (extending traditional practices; (3) facilitate services to Native Hawaiians ‘‘because negotiations regarding the return of land (1) Issue-Specific Response to Comment of their unique status as the indigenous and other assets to the Native Hawaiian (a) Authority people of a once sovereign nation’’ and people; (4) formalize management explaining that ‘‘the political status of agreements with Federal, State, and Issue: Several commenters called into Native Hawaiians is comparable to that local governments that enhance the question the Department’s authority to of American Indians and Alaska promulgate this rule and Congress’s ability of Native Hawaiians to contribute Natives’’). Over many decades, Congress plenary authority over Native their knowledge and expertise to care enacted more than 150 statutes Hawaiians. The Department made no for the environment and natural recognizing and implementing a special changes to the proposed rule in resources; (5) improve Native political and trust relationship with the response to these comments. Hawaiians’ ability to strengthen and Native Hawaiian community. These perpetuate their indigenous culture and (1) Comment: Several commenters questioned the Department’s authority Congressional actions establish that the languages; (6) access certain veterans’ community is federally ‘‘acknowledged’’ benefits and health services for Native to reestablish a formal government-to- government relationship with the Native or ‘‘recognized’’ by Congress. Thus, the Hawaiian veterans; (7) compete for Native Hawaiian community has a certain government contracts on a Hawaiian community, pointing out that former U.S. Senator Daniel Akaka special political and trust relationship government-wide basis; and (8) more with the United States. This final rule effectively coordinate health services introduced several bills that would have expressly established a government-to- addresses the further and distinct issue with other human services to improve of recognizing a government of the the overall health and wellness of the government relationship between the Native Hawaiian community for Native Hawaiian people. Other Native Hawaiian community and the purposes of entering into a formal supporters noted that a government-to- United States, but none of those bills government-to-government relationship. government relationship could help became law. Several commenters also preserve existing Native Hawaiian questioned Congress’s plenary authority The statutes cited above, in combination Federal benefits, such as culture-based over Native Hawaiians. with the Department’s existing charter and language-immersion Response: The authority to issue this authorities related to Indian affairs, schools, scholarships, and training rule is vested in the Secretary by 25 establish the Department’s authority to programs, as well as economic, housing, U.S.C. 2, 9, 479a, 479a–1; 43 U.S.C. promulgate the final rule to confirm that and health services. 1457; Act of January 23, 2004, sec. 148, the reorganized Native Hawaiian Many commenters, however, 118 Stat. 445; and 5 U.S.C. 301. See also government, through which the Native expressed opposition to the rule, Miami Nation of Indians of Indiana, Inc. Hawaiian community can conduct advocating that the Department abandon v. U.S. Dep’t of the Interior, 255 F.3d formal government-to-government its efforts entirely. Most of these 342, 346 (7th Cir. 2001) (stating that relations with the United States, is opponents argued that the United States recognition is an executive function authorized to represent the community. lacks jurisdiction to promulgate a rule, requiring no legislative action). The The Department accordingly concludes, is illegally occupying the Hawaiian Federal Government has authority to based on these Congressional Islands, and violated and continues to enter into a government-to-government enactments and on its analysis of the violate international law respecting relationship with the Native Hawaiian record and of applicable law, that the what the commenters argued is Native community. See U.S. Const. art. I, sec. Secretary may reinstate a formal Hawaiians’ right to self-determination 8, cl. 3 (Commerce Clause); U.S. Const. government-to-government relationship

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71294 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

with a Native Hawaiian government in Kingdom of Hawaii in 1893; and connected to the Kingdom continued to accordance with this rule. Congress, through a joint resolution, meet and exercise forms of self- (2) Comment: Some commenters both acknowledged that the overthrow governance outside the scope of the claimed that Congress lacks plenary of Hawaii was ‘‘illegal’’ and expressed State and local governments. The Native authority over Native Hawaiians or any ‘‘its deep regret to the Native Hawaiian Hawaiian community’s continuation of Native Hawaiian governing entity, and people’’ and its support for internal self-governance post- objected to the provision of the reconciliation efforts with Native annexation to the current day proposed rule that indicated Congress Hawaiians. Apology Resolution at 1513. demonstrates its resilience and cohesion would have such authority. This Apology Resolution, however, did as a political community. Indeed, Response: The United States strongly not effectuate any changes to existing Congress specifically recognized Native supports principles of self- law. See Hawaii v. Office of Hawaiian Hawaiians’ unique needs as a distinct determination and self-governance of Affairs, 556 U.S. 163, 175 (2009). Thus, indigenous community by enacting indigenous peoples; nevertheless, if a the Admission Act establishing the legislation creating programs for their Native Hawaiian Governing Entity is current status of the State of Hawaii exclusive benefit, e.g., the Native formed, that entity would exercise its remains the controlling law. Hawaiian Education Act, 20 U.S.C. 7511 retained inherent sovereign authority (4) Comment: One commenter was et seq.; the Native Hawaiian Health Care subject to the plenary authority of critical of the Department’s citation to Act, 42 U.S.C. 11701 et seq.; the Native Congress. See Section (III) (Authority), Federal laws relating to, for example, American Housing Assistance and Self- supra. Additionally, to the extent these Hawaiian language, burials, and cultural Determination Act (NAHASDA), 42 comments assert that Hawaii is not part activities, and appropriations as U.S.C. 4221 et seq., and by specifically of the United States, that assertion is evidence of Congress’s recognition of a including them in other legislation incorrect. As discussed in the next special political and trust relationship pertaining to Indian tribes, e.g., response to comment, the Department is with the Native Hawaiian community. American Indian Religious Freedom bound by Congressional enactments The commenter argued that these Act, 42 U.S.C. 1996; Native American concerning the status of Hawaii. Federal laws do not ‘‘rise to the level of Graves Protection and Repatriation Act, (3) Comment: Many commenters an exercise of plenary power 25 U.S.C. 3001–3013; Native American objected to any rulemaking by the sufficiently analogous to those Programs Act of 1974, 42 U.S.C. 2991– Department, indicating their belief that addressed in the Commerce Clause of 2992d. These and other Federal acts Hawaii was illegally annexed by the the [U.S.] Constitution in dealing with contribute to the process of United States, that Hawaii is currently Indian Affairs.’’ Other commenters rehabilitating the Native Hawaiian being ‘‘occupied’’ by the United States, echoed this concern. community in the areas of health care, and that the Kingdom of Hawaii Response: The Department interprets education, housing, religious freedom, continues to exist as a sovereign nation- Congress’s course of dealings treating social welfare, and cultural state independent of the United States. Native Hawaiians as a distinctly native preservation, a process that lays the Some commenters questioned whether community of indigenous people as groundwork for the Native Hawaiian Hawaii is properly considered to be part analogous to its treatment of tribes in community to formally reorganize its of the United States, suggesting the the continental United States and government and exercise self- Department lacks jurisdiction to within the scope of Congress’s power to determination and self-governance. promulgate a rule. legislate with respect to ‘‘Indian tribes’’ Appropriations to fund the programs Response: The Department made no under the U.S. Constitution. U.S. Const. created by these and other Federal acts changes to the rule in response to these art. I, sec. 8, cl. 3. In the Apology are an essential part of Congress’s comments, which address the validity of Resolution, Congress acknowledged that exercise of its plenary authority over the relationship between the United the illegal overthrow of the Kingdom of indigenous peoples. Accordingly, the States and the State of Hawaii. To the Hawaii ‘‘resulted in the suppression of Department treats Congressional extent commenters claim that Hawaii is the inherent sovereignty of the Native appropriations laws similar to not a State within United States, the Hawaiian people’’ and apologized for legislation respecting programs for the Department rejects that claim. Congress the role its agents and citizens played to Native Hawaiian community. admitted Hawaii to the Union as the ‘‘depriv[e]’’ Native Hawaiians of their 50th State. The Admission Act, which ‘‘rights of self-determination’’. Apology (b) Constitutionality was consented to by the State of Hawaii Resolution, Section 1(1); (2). And by Issue: Commenters opposed to the and its citizens through an election held expressing its commitment to a process proposed rule alleged that it would on June 27, 1959, proclaimed that ‘‘the of reconciliation with the Native violate the U.S. Constitution. State of Hawaii is hereby declared to be Hawaiian people, the United States Comment: Commenters expressed a State of the United States of America, acknowledged the ramifications the concern that any government-to- [and] is declared admitted into the Kingdom’s overthrow had on Native government relationship is inherently Union on an equal footing with the Hawaiians, including ‘‘long-range race-based and violates both the other States in all respects whatever.’’ economic and social changes’’ that Fourteenth Amendment’s Equal Act of March 18, 1959, sec. 1, 73 Stat. devastated the indigenous population Protection Clause and the Fifteenth 4. This express determination by and contributed to its decline in health Amendment’s guarantee of the right to Congress is binding on the Department and well-being. Id., Section 1(4). The vote regardless of race. Some as an agency of the United States socioeconomic effects of the overthrow commenters expressed the view that it Government that is bound by spanned generations and disparities is not appropriate for indigenous groups Congressional enactments concerning continue today. But lack of a formal, to have separate governments that are the status of Hawaii. Under those organized government after the recognized by the United States, or that enactments and under the United States overthrow did not extinguish Native Native Hawaiians are not appropriately Constitution, Hawaii is a State of the Hawaiians’ ability to exercise self- accorded that status. United States. determination. As discussed in Section Response: The U.S. Constitution Agents of the United States were (II), various Native Hawaiian political, provides the Federal Government with involved in the overthrow of the community, and social organizations authority to recognize and enter into

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00018 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 71295

government-to-government already established with the Native on documentation that verifies Native relationships with Native communities. Hawaiian community, in a manner Hawaiian descent); See U.S. Const. art. I, sec. 8, cl. 3 similar to the United States’ relationship • is currently or previously enrolled (Commerce Clause); U.S. Const. art. II, with Indian tribes in the continental as a Native Hawaiian in a Kamehameha sec. 2 (Treaty Clause); see also Morton United States. Such a relationship is Schools program; v. Mancari, 417 U.S. 535, 551–52 (1974) constitutional. Congress and the • is identified as ‘‘Native Hawaiian’’ (‘‘The plenary power of Congress to deal Department both encourage self- (or some equivalent term) on a birth with the special problems of Indians is government by tribes, and have done so certificate; or • drawn both explicitly and implicitly for decades. This policy is beneficial not is identified as ‘‘Native Hawaiian’’ from the Constitution itself.’’). These only to indigenous communities but (or some equivalent term) in a Federal, constitutional provisions recognize and also to the United States as a whole. state, or territorial court order provide the foundation for longstanding determining ancestry. (c) Voter Eligibility special relationships between Native A sworn statement is sufficient peoples and the Federal Government, Issue: The Department received evidence of HHCA Native Hawaiian relationships that date to the early days numerous comments on the provisions status as long as that statement affirms of our Nation’s history. Consistent with in the proposed rule concerning the that there are specific means to establish the potential voter’s eligibility as Native the Supreme Court’s holding in Morton Native Hawaiian community’s ability to Hawaiian under HHCA sec. 201(a)(7), or v. Mancari, and other cases, the United determine and verify voter eligibility if the statement affirms that a court States’ government-to-government based on Native Hawaiian ancestry. The order does so. See § 50.12(c). Acceptable relationships with Native peoples do Department made key changes to § 50.12 documentation to support the sworn not constitute ‘‘race-based’’ in response to these comments. statements could include, but is not discrimination but rather are political (1) Comment: In the preamble to the limited to, a Hawaiian home-lands lease classifications. proposed rule, 80 FR 59124, the as Native Hawaiian under HHCA sec. Department asked for comment on Moreover, this final rule only creates 201(a)(7) or correspondence from DHHL a pathway through which a formal whether there are circumstances in indicating such Native Hawaiian government-to-government relationship which the rule should rely on sworn beneficiary status. Notably, can be reestablished; it does not by itself statements punishable under state law documentation of either status need not establish such a relationship. It is clear to document ‘‘HHCA Native Hawaiian’’ actually accompany a sworn statement, that Congress recognized the Native status under § 50.4 and corresponding unless the community requires it. If the Hawaiian community as an indigenous sections of the proposed rule. Citing the Native Hawaiian community chooses, it community within the scope of lack of official databases that may identify HHCA Native Hawaiians Congress’s Indian affairs power under distinguish between ‘‘HHCA Native on its voter list of Native Hawaiians at the Constitution, as well as the Hawaiians’’ and other ‘‘Native the time the votes are cast. Regardless of community’s inherent sovereignty and Hawaiians,’’ one commenter suggested when the community identifies its the United States’ role in suppressing that sworn statements punishable under HHCA Native Hawaiian voters, what the Apology Resolution described state law should be accepted as however, the community must account as the community’s ‘‘rights to self- sufficient evidence of ‘‘HHCA Native for both HHCA Native Hawaiians and determination’’ through the overthrow Hawaiian’’ status for voting purposes Native Hawaiians vote tallies. of the Kingdom. It accordingly has only. Other commenters supported the The rule provides safeguards against provided that community with certain use of sworn statements for ‘‘Native potential voter fraud by requiring programs and benefits. See Board of Hawaiians’’ as well. specific support for the potential voter’s County Comm’rs v. Seber, 318 U.S. 705, Response: The Department concludes status, § 50.12(b), (c), as well as 715 (1943) (once the United States that sworn statements may be used to requiring separate vote tallies for Native ‘‘overcame the Indians and took demonstrate ‘‘HHCA Native Hawaiian’’ Hawaiians and HHCA Native possession of their lands, sometimes by or ‘‘Native Hawaiian’’ status for Hawaiians, § 50.14(b)(5)(v). In addition force, leaving them . . . needing purposes of voting in the ratification to these foundational provisions, the protection . . . [it] assumed the duty of referendum. New language was added to rule provides the public with an furnishing . . . protection and with it the final rule indicating that reliable opportunity to present evidence on the authority to do all that was required self-certifying sworn statements are whether the community’s request meets to perform that obligation’’). As sufficient for purposes of participation the standards set out in § 50.16 Congress explained, it ‘‘does not extend in the ratification referendum. (§ 50.30(a)(2)(iv)), which could include services to Native Hawaiians because of In light of this change, the Department evidence that, for example, the Native their race, but because of their unique added a definition of ‘‘sworn statement’’ Hawaiian community did not meet the status as the indigenous peoples of a and introductory language in § 50.12 requirements of § 50.12 or § 50.14. once sovereign nation as to whom the requiring the Native Hawaiian Finally, the Secretary may request United States has established a trust community to explain the procedures it additional documentation and relationship.’’ Native Hawaiian used for verifying the self-certifying explanation with respect to the request Homelands Homeownership Act of ‘‘Native Hawaiians’’ and ‘‘HHCA Native submitted under this part (§ 50.40). 2000, 114 Stat. 2968. Thus, ‘‘the Hawaiians.’’ Section 50.12(b) sets out The comments make clear that there political status of Native Hawaiians is five ways in which a potential voter is no comprehensive listing of ‘‘Native comparable to that of American Indians could, through a sworn statement, Hawaiians’’ and ‘‘HHCA Native and Alaska Natives.’’ Native Hawaiian affirm his or her Native Hawaiian status. Hawaiians.’’ Therefore, it is likely that Education Act, 20 U.S.C. 7512(12)(B), See § 50.12(b)(i)–(v). For example, the many may not be enumerated in any roll (D); see Rice, 528 U.S. at 518–19. sworn statement could affirm that the maintained by the State or other entity. Therefore, reestablishing a government- potential voter: The comments also make clear that to-government relationship here gives • Is enumerated on a roll or list many ‘‘Native Hawaiians’’ and ‘‘HHCA further expression to the special prepared by the State of Hawaii under Native Hawaiians’’ objected to being political and trust relationship Congress State law (where enumeration is based enumerated on any roll, State sponsored

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71296 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

or otherwise, without their consent include alternative methods to private trusts currently providing (even if there is an established process demonstrate Native Hawaiian ancestry, services to and verifying the status of to have their names removed), and that to accommodate individuals who do not individual Native Hawaiians because of some may not have any ancestral have written documentation. their status as members of Hawaii’s only documentation. Accordingly, in Response: For purposes of the indigenous people, the Hawaiian addition to sworn statements described ratification vote, the proposed rule people.’’ They specifically did not above, the Department amended the provided for documentation of ancestry support documenting descent using the proposed rule to permit an eligible voter using ‘‘other means to document 1890, 1900, or 1910 censuses because to sponsor a closely related blood generation-by-generation descent from a DHHL, Kamehameha Schools, and other relative (mother, father, child, brother, Native Hawaiian,’’ and ‘‘other records or entities ‘‘have well-established sister, grandparent, aunt, uncle, documentation demonstrating eligibility processes that the Native Hawaiian grandchild, niece, nephew, or first under the HHCA’’ in § 50.12. But to community is most familiar with, and cousin) as qualified for participation in address more specifically those without account for any historical events that a ratification referendum through a any written ancestry documentation, the present challenges for Native Hawaiians sworn statement based on the voter’s Department includes new language in seeking to establish a generation-by- personal knowledge that the blood the final rule. The rule accordingly generation connection to a census roll relative meets the definition of Native permits an eligible voter to sponsor a that is more than 100 years old.’’ The Hawaiian or HHCA Native Hawaiian, closely related blood relative, i.e., Department determined that there is a with the consent of that relative. The mother, father, child, brother, sister, lack of support for specifically naming sponsor would not be required to grandparent, aunt, uncle, grandchild, the censuses in a final rule for purposes document the blood relative’s ancestry niece, nephew, or first cousin, for of documenting generation-by- because the sponsor’s eligibility would participation in a ratification generation descent and therefore did not already have been addressed. referendum as a Native Hawaiian or an include such references. The rule does To be clear, sworn statements to HHCA Native Hawaiian. Such not prevent the Native Hawaiian verify a potential voter’s own ancestry sponsorship must be made by sworn community from relying on those must reliably establish some degree of statement based on personal knowledge censuses if it determines that they are Native Hawaiian ancestry. Native that the relative meets the definition of reliable evidence of lineal descent from Hawaiian ancestry is absolutely Native Hawaiian or HHCA Native the native peoples who occupied and required for all Native Hawaiians Hawaiian. See § 50.12(b), (c); response exercised sovereignty over the territory seeking to participate in the ratification to comment (c)(1). For the sponsorship that became the State of Hawaii. referendum. Accordingly, the sworn to be valid, the sponsor must be In further response, the Department statement should describe the evidence enumerated on a roll certified by the determined that current or prior relied on to establish eligibility to vote State of Hawaii under State law, be enrollment as a Native Hawaiian in a in the ratification referendum. The enumerated in official DHHL records Kamehameha Schools program is Native Hawaiian community could do demonstrating eligibility under the acceptable verification of ancestry based so by requiring the potential voter to HHCA, provide proof of current or prior on the Department’s own research and affirm that he or she is able to establish enrollment in Kamehameha Schools as commenters’ confidence in that process his or her Native Hawaiian or HHCA a Native Hawaiian, or provide a birth as legitimate and well-established Native Hawaiian status through one of certificate or court order listing within the Native Hawaiian community the methods listed in § 50.12(b)(3)(i)–(v) Hawaiian or Native Hawaiian ancestry. for purposes of documenting Native or (c)(2)(i)–(iv), respectively. The See § 50.12(a). The rule also permits Hawaiian descent. This change further methods in § 50.12(b) and (c) are ‘‘other similarly reliable means of necessitated a change to the optional. establishing generation-by-generation introductory provisions of § 50.12 to At the end of the sworn statement, the descent from a Native Hawaiian require that the Native Hawaiian Native Hawaiian community could ancestor’’ and ‘‘other similarly reliable community explain its requirements for require language such as: means of establishing eligibility under use of any sworn statements and the ‘‘I swear/affirm that the information I HHCA sec. 201(a)(7)’’ in § 50.12. procedures it used for verifying the self- have provided is true to the best of my (3) Comment: On 80 FR 59124, the certifying ‘‘Native Hawaiians’’ and knowledge and understand that a false Department asked for comment on ‘‘HHCA Native Hawaiians.’’ See statement is punishable under state law. whether documenting descent from a response to comment (1)(c)(1). If I have provided false information, I person enumerated on the 1890 Census (4) Comment: One commenter offered may be fined, imprisoned, or both.’’ by the Kingdom of Hawaii, the 1900 that any deliberations about what The Native Hawaiian community may U.S. Census of the Hawaiian Islands, or constitutes ‘‘sufficient’’ proof of descent verify sworn statements by an the 1910 U.S. Census of Hawaii as ‘‘must incorporate Hawaiian language appropriate method, such as through ‘‘Native’’ or part ‘‘Native’’ or records,’’ arguing that ‘‘a broader review of such documentation where it ‘‘Hawaiian’’ or part ‘‘Hawaiian’’ is literature for verification needs to be is readily available, or through reliable evidence of lineal descent from engaged including name chants, birth maintaining a voter registration list that the aboriginal, indigenous, native chants, and various genres of grief it makes public to allow for objections, people who exercised sovereignty over chants which are filled with and providing a mechanism to resolve the territory that became the State of genealogical and land information.’’ any challenges by registered voters. Hawaii. Another commenter suggested that, in Such a list must be maintained for a Response: Commenters who the absence of birth certificates, other reasonable period after the Secretary has responded to this question supported documents to verify descent should be made a determination to accept or reject ‘‘requiring processes and standards of added, such as ‘‘church documents, a request for a government-to- documentation that are consistent with marriage and death certificates, land government relationship based on that the processes used by the State of ownership, employment records, etc.’’ ratification vote. Hawaii Department of Hawaiian Home Response: Although some of the (2) Comment: One commenter Lands (DHHL), the Kamehameha enumerated items may provide suggested that the final rule should Schools, and other existing public and acceptable genealogical evidence,

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00020 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 71297

particularly in combination with other that must be used,’’ and that ‘‘anyone’’ Hawaiian.’’ The Department made no sources, these items were not expressly (non-Hawaiians) could be a member if changes to the proposed rule in added to the final rule because § 50.12 such a test is not adopted. Another response to these comments. already provides for documentation of commenter suggested that genealogical (1) Comment: Multiple commenters ancestry using ‘‘other similarly reliable DNA testing should be listed as a objected to the proposed rule’s means of establishing generation-by- method to determine ancestry. distinction between ‘‘Native Hawaiians’’ generation descent from a Native Response: Neither the proposed nor and ‘‘HHCA-eligible Native Hawaiians,’’ Hawaiian ancestor’’ and ‘‘other similarly final rules specify what ‘‘tests’’ the arguing that such a distinction based on reliable means of establishing eligibility Native Hawaiian community must use blood quantum is a ‘‘foreign concept’’ under HHCA sec. 201(a)(7)’’ in § 50.12. in order to verify that the individuals within their community. Others These ‘‘other similarly reliable means’’ who apply for membership meet the similarly objected to the proposed rule’s could include the commenters’ community’s membership requirements. criteria for membership that excludes proposed alternative sources as long as Such ‘‘tests’’ are for the Native Hawaiian non-Hawaiians. the Native Hawaiian community community to decide in accord with Response: Congress recognizes both explains in its written narrative how Santa Clara Pueblo. Although the rule HHCA Native Hawaiians and Native and when those sources were acceptable specifies criteria for participation in the Hawaiians as one people, but through as ‘‘reasonable and reliable’’ ratification process, that is a distinct statutory definition establishes that the documentation of descent under § 50.12. question from the issue of membership HHCA Native Hawaiians are a subset of In response to these comments, the in the community’s governing entity, the other. Consistent with Congressional Department included birth certificates which will be determined by the policy, the Department accounted for indicating ‘‘Native Hawaiian’’ (or an community itself. both statutory definitions in the process equivalent term) and court orders (3) Comment: Some commenters for reestablishing a formal government- determining such ancestry as acceptable expressed the view that decisions as to to-government relationship with the for establishing Native Hawaiian the membership and scope of the recognized Native Hawaiian community ancestry. community should be left for the . . . The rule uses these Congressional community itself to decide. One definitions to ensure that the will of the (d) Membership commenter recommended deleting recognized community as a whole is (1) Comment: One commenter noted § 50.13(f), which requires the Native reflected in the ratification process. that the proposed rule prevents the Hawaiian community’s governing The Department is aware of Native Hawaiian community from document to describe its criteria for community concerns with respect to excluding ‘‘HHCA Native Hawaiians’’ membership subject to certain distinguishing between Native from its membership in § 50.13, which conditions. Hawaiians and HHCA Native ‘‘cuts against’’ Santa Clara Pueblo v. Response: The Department agrees that Hawaiians. The rule includes relatively Martinez, 436 U.S. 49 (1978), and could the Native Hawaiian community should few conditions on the Native Hawaiian be ‘‘read to prohibit the Native define its own membership as an community’s exercise of its inherent Hawaiian government from revoking exercise of self-determination, but sovereignty to determine its own membership, another practice of tribal rejects the commenter’s suggestion to membership in any governing sovereignty upheld by the [U.S.] eliminate § 50.13(f). Section 50.13(f) document. It is important to note that Supreme Court.’’ provides certain minimum criteria that the rule sets forth a process to facilitate Response: While it is true that must be met by any governing reestablishing a formal government-to- § 50.13(f)(1) requires that ‘‘HHCA Native document, including, among other government relationship between the Hawaiians’’ be permitted to enroll, provisions, safeguards for HHCA Native Native Hawaiian community and the nothing in § 50.13 addresses whether Hawaiians to ensure that the governing United States, and does not impose a and on what basis the Native Hawaiian document fairly reflects the composition specific, or ‘‘foreign,’’ form of community may disenroll individual of the Native Hawaiian community that government on the community. members. Membership in a political Congress recognized and to which Congressional dealings with the Native community is voluntary and not Congress provided special programs and Hawaiian community also require that compulsory. Importantly, in the HHCA, services. 80 FR at 59125–26. These non-Native Hawaiians be excluded from Congress recognized ‘‘HHCA Native criteria provide the Native Hawaiian the ratification vote and membership Hawaiians’’ as a vital part of the Native community with firmly established because the statutory definitions of the Hawaiian community, so any Native standards consistent with Congressional recognized community require a Hawaiian government that seeks to intent and provide the Department clear demonstration of descent from the reestablish a formal government-to- criteria to apply when considering a population of Hawaii as it existed before government relationship under this rule request to reestablish a formal Western contact. See 80 FR at 59119. must permit them to enroll and government-to-government relationship. The Department must also follow guarantee their civil rights. Section Section 50.13(f) seeks to ensure that the Congress’s definition of the nature and 50.13, however, does not address community represented by the Native scope of the Native Hawaiian disenrollment, but any such action must Hawaiian Governing Entity is the community. Therefore, the Department be done in compliance with due-process community recognized by Congress, and did not make any changes to the rule in principles. See response to comment is a reasonable exercise of Department’s response to these comments. (1)(m)(10). Any existing benefits under authority in determining the community (2) Comment: Some commenters Federal law that a member has would be it is responsible to serve. stated that the term ‘‘Indian’’ is not unaffected by the community action. properly applied to Native Hawaiians, See response to comment (1)(f). (e) Terminology and that the term ‘‘tribe’’ is not properly (2) Comment: One commenter noted Issue: The Department received applied to a Native Hawaiian sovereign that while a Native Hawaiian ancestral extensive comments on the effect and or its governing body. They noted the connection is a requirement for impact of the proposed rule’s use and distinctive history of Native Hawaiians membership under the proposed rule, distinction between the terms ‘‘Native and of the Kingdom of Hawaii, and ‘‘there is no test specified in the rule Hawaiian’’ and ‘‘HHCA Native asserted that this history renders these

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71298 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

terms inappropriate for Native (1) Comment: Many commenters were See 80 FR at 59120. Moreover, Hawaiians and for their government. concerned that the proposed rule would because Federal law provides both Response: As discussed above, the permit the Native Hawaiian Governing defined protections for HHCA drafters of the U.S. Constitution used Entity to ‘‘take control of the Hawaiian beneficiaries and specific guarantees of the terms ‘‘Indians’’ and ‘‘Indian tribes’’ home lands,’’ and otherwise ‘‘deprive individual civil rights, HHCA to define Congress’s power and the [HHCA beneficiaries and] beneficiaries would continue to be authority with regard to indigenous homesteaders of protections they have protected after a formal government-to- political sovereigns. These terms come to expect.’’ In the process, the government relationship is established. encompass Native peoples who have commenters allege, the Department See § 50.13(g)–(j); 80 FR 59125–26. diverse cultures, languages, and would ‘‘abdicate’’ its fiduciary duties to In short, HHCA beneficiaries’ existing ethnological backgrounds throughout this new entity that has no enforceable rights under Federal law, and the the United States. Congress repeatedly commitment to protect HHCA Native Secretary’s and the State’s authority and exercised its Indian affairs power when Hawaiians, thus jeopardizing their concurrent obligations, are unchanged legislating for the Native Hawaiian rights and protections under Federal by promulgation of this rule or the community over the course of the last law. reestablishment of a formal government- century. It is on that basis that Congress Response: The Department to-government relationship with the established a special political and trust appreciates the importance of protecting Native Hawaiian Governing Entity. relationship with the Native Hawaiian HHCA beneficiaries’ unique status Ultimately, only Congress can diminish community. under Federal law. The rule protects or otherwise modify the existing rights (3) Comment: Some commenters that status in a number of ways: of HHCA beneficiaries, and the Native stated that Native Hawaiians do not • The rule requires that the governing Hawaiian Governing Entity is bound by consider themselves to be ‘‘Indians’’ or document protect and preserve rights, Federal law. Similarly, Congressional members of a ‘‘tribe.’’ protections, and benefits under the action would be required before the Native Hawaiian Governing Entity, or Response: Congress recognizes the HHCA. any political subdivision within it, diversity among the indigenous peoples • The rule leaves intact rights, would be authorized to manage that fall within the Indian affairs protections, and benefits under the HHCA. Hawaiian home lands. powers. The Department respects that (2) Comment: Some HHCA • The rule does not authorize the the Native Hawaiian and Native beneficiaries expressed concern that American communities on the mainland Native Hawaiian government to sell, they will be reduced to a political have exceptionally diverse histories and dispose of, lease, tax, or otherwise subdivision when they currently have cultures, and that many of these encumber Hawaiian home lands or the most rights under Federal law. communities use their own terminology interests in those lands. • Response: The Department takes no in referencing their members and their The rule does not diminish any position on the internal organization of governments. Accordingly, it is up to Native Hawaiian’s rights or immunities, any Native Hawaiian government, the Native Hawaiian community to including any immunity from State or including the existence and nature of establish what terminology it believes is local taxation, under the HHCA. any political subdivisions. The • most appropriate, in accordance with The rule defines the term ‘‘HHCA Department notes, however, that should principles of self-determination. Native Hawaiians’’ to include any such political subdivisions exist, being (4) Comment: A commenter noted that Native Hawaiian individual who meets a political subdivision of a larger Native Hawaiians became United States the definition of ‘‘native Hawaiian’’ in political community does not citizens at the time of Hawaii’s the HHCA. necessarily mean that the members of annexation, and that this distinguished • The rule requires that the Native the subdivision will lose rights or them from Indians elsewhere in the Hawaiian constitution or other benefits. Questions of what political United States, who did not become governing document be approved in a subdivisions to create, if any, and what citizens until enactment of the Indian ratification referendum not only by a authorities those subdivisions should Citizenship Act of 1924. majority of Native Hawaiians who vote, possess, are for the Native Hawaiian Response: Congress accorded U.S. but also by a majority of HHCA Native community to decide. citizenship to many groups of Indians, Hawaiians who vote; and both (3) Comment: Commenters argued by treaty and by statute, throughout the majorities must include enough voters that the proposed rule pits non-HHCA course of the nineteenth century and to demonstrate broad-based community Native Hawaiians against HHCA Native continued to do so until the adoption of support. This ratification process Hawaiians by providing express the Indian Citizenship Act. See Cohen’s effectively eliminates any risk that the protections for the latter while offering Handbook of Federal Indian Law sec. United States would reestablish a formal the former only the ability to participate 14.01[3], at 926–31 (2012 ed.). The fact relationship with a Native Hawaiian in a government with no guarantee of that Congress accorded Native government whose form is broadly lands or power over non-Hawaiians. Hawaiians U.S. citizenship at the time objectionable to HHCA Native Response: As explained above, the of Hawaii’s annexation, well before Hawaiians. The Department expects that rule reflects distinctions between HHCA passage of the Indian Citizenship Act, is the participation of HHCA Native Native Hawaiians and Native Hawaiians therefore not a meaningful distinction. Hawaiians in the referendum process made by Congress, and in so doing, will ensure that the structure of any protects those existing rights that (f) HHCA Native Hawaiian rights ratified Native Hawaiian government Congress provided in the HHCA and in Issue: The Department received will include long-term protections for over 150 other statutes relating to the numerous comments on the proposed HHCA Native Hawaiians. Native Hawaiian community. If a Native rule’s express protections for ‘‘HHCA- • The rule prohibits the Native Hawaiian government reorganizes and a eligible Native Hawaiians’’ and their Hawaiian government’s membership formal government-to-government existing rights under Federal law. No criteria from excluding any HHCA relationship is reestablished pursuant to changes to the proposed rule were made Native Hawaiian who wishes to be a the rule, all Native Hawaiians would in response to these comments. member. benefit through improved facilitation of

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00022 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 71299

their existing Federal benefits and a eligible to reside on the Hawaiian home United States, each with its own government-to-government relationship. lands have the most severe housing governing document approved through (4) Comment: One commenter needs. 25 U.S.C. 4221 Note; Act of a ‘‘ratification’’ process, each purporting suggested that the Secretary’s role and December 27, 2000, 114 Stat. 2944. It to legitimately represent the entire responsibility to the HHCA beneficiaries follows that the Department cannot community. Establishing reasonable should be defined in the rule; as an support an approach that would permit numerical thresholds at the outset alternative, this commenter suggested a subset of the Native Hawaiian provides a transparent and sound basis authorizing an Inspector General or community to separately request a for distinguishing a governing document Ombudsman specifically for HHCA government-to-government relationship that has the Native Hawaiian beneficiaries. independent of the rest of the community’s broad-based support from Response: The Secretary’s role and community recognized by Congress. a governing document that lacks such responsibilities toward Native Instead, any request must demonstrate support. Hawaiians are defined by multiple Acts broad-based support from the (2) Comment: Some commenters state of Congress, see, e.g., the HHCA, the recognized Native Hawaiian community that the numerical thresholds in the Admission Act, and the HHLRA. as a whole. proposed rule’s § 50.16(g)–(h) are too Congress specifically authorized the high and could not be met as a practical Department’s Office of Native Hawaiian (g) Ratification Referendum matter. Other commenters stated that Relations within the Office of Policy, Issue: The Department received they are too low in light of census data Management, and Budget to focus on numerous comments on the proposed on the size of the Native Hawaiian Native Hawaiian relations, including rule’s provisions related to the population. HHCA beneficiaries’ rights and benefits requirements of and the process for Response: A number of commenters under the HHCA. That office is the voting in the ratification referendum for urged higher numerical thresholds; primary office to address concerns by the Native Hawaiian government’s others urged lower thresholds; and these constituents, and can involve governing document, as well as who many commenters supported the other Departmental offices or agencies may vote and how those votes must be proposed thresholds. These comments as necessary. The Department made no tallied. are significant because they indicate changes to the rule in response to this (1) Comment: Commenters state that that there is no clear consensus on comment. the rule should not set numerical whether the Department’s threshold (5) Comment: Commenters stated that thresholds for the ratification numbers are too high or too low. The the HHCA Native Hawaiians should be referendum. Instead, ratification of the Department concludes that the permitted to submit a separate request governing document should be thresholds enumerated in § 50.16 are to the Secretary based on broad-based demonstrated by a majority (or a reasonable and achievable. The support within that group. plurality) of actual voters, regardless of methodology for producing these ranges Response: Congress consistently turnout. is explained in detail in Section (III). treated the Native Hawaiian community Response: The Department disagrees. (3) Comment: Commenters questioned as a single entity through more than 150 The ratification vote must reflect the the significance of the 50,000 and Federal laws. Congress’s recognition of views of the Native Hawaiian 15,000 affirmative-vote presumptions of a single Native Hawaiian community community as demonstrated through broad-based community support since reflects the fact that a single Native broad-based community participation in the proposed rule requires that a Hawaiian government was in place prior the ratification referendum and broad- minimum of 30,000 affirmative votes, to the overthrow of the Kingdom of based community support for the including a minimum of 9,000 Hawaii. See response to comment governing document. Broad-based affirmative votes from HHCA Native (1)(m)(18). Congress established a community participation and support Hawaiians, is sufficiently large to show special political and trust relationship are essential to ensuring the legitimacy broad-based community support. with a single Native Hawaiian of the Native Hawaiian government and Response: The 30,000 and 9,000 community, even as it used different the viability of its formal government-to- affirmative-vote thresholds are definitions to focus on specific persons government relationship with the minimum thresholds designed to help within that one community. For United States. the Department determine whether a example, in 2000, Congress enacted the A low vote in favor of the governing requester demonstrates that the American Homeownership and document would demonstrate a lack of governing document has broad-based Economic Opportunity Act to help broad-based community support. community support. For example, if satisfy the need for affordable homes in Similarly, a high voter turnout that fails 29,999 or fewer Native Hawaiians vote Indian communities. 12 U.S.C. 1701, 25 to secure a majority of votes in favor of in favor of the requester’s governing U.S.C. 4101; Act of December 27, 2000, the governing document would also document, it is reasonable to find a lack 114 Stat. 2944. As part of that program, demonstrate a lack of broad-based of broad-based community support Congress addressed housing assistance community support. Accordingly, the among Native Hawaiians, and the for Native Hawaiians and broadly rule sets numerical thresholds for Secretary would decline to process the defined the term ‘‘Native Hawaiian’’ community participation in support and request. In contrast, if 50,000 or more consistent with the definition of Native requires that the number of votes in Native Hawaiians vote in favor of the Hawaiians in this rule. See 25 U.S.C. favor be a majority of all votes cast. requester’s governing document (and 4221(9). In the same statute, Congress These thresholds are based on an they constitute a majority of all Native separately recognized that the objective measure of broad-based Hawaiians who vote), the Secretary is ‘‘beneficiaries of the Hawaiian Homes community participation and on the justified in applying a presumption that Commission Act’’ should be given a requirement that votes in favor the broad-based community support unique opportunity to comment on constitute a majority of all votes cast. criterion is satisfied. The proposed rule particular aspects of the program. 25 Without them, multiple Native referred to the presumption as ‘‘strong.’’ U.S.C. 4239(d). In the Act’s findings, Hawaiian groups could purport to lead The Department has only referenced a Congress specifically stated that, among the effort to reestablish a government-to- ‘‘presumption’’ in the final rule, to the Native Hawaiian population, those government relationship with the clarify that the Secretary has full

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71300 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

authority to review the request and Hawaiian. Thus, the census data and part on actual turnout figures in accompanying materials for consistency voter data are consistent and reliance on Hawaii’s presidential and off-year with this rule and with Federal law. If the voter data is reasonable. See also (gubernatorial) elections, both in the the number of affirmative votes Kamehameha Schools, Ka Huakai: 2014 1990s and in recent years, and adjusted constitutes a majority and falls in Native Hawaiian Education Assessment them for out-of-state voters. The between those figures—i.e., if the 16–22 (2014) (population projections) Department concludes that the number of affirmative votes is in the (citing Justin Hong, Native Hawaiian adjustments to the voter-turnout data for range of 30,000 to 49,999—the Secretary Population Projections (unpublished in-state Native Hawaiians provide a will consider the request and will need 2012)). reasonable objective measure on which to determine, unaided by any (5) Comment: Commenters state that to base its affirmative vote-thresholds to presumption, whether the requester numerical thresholds in 2016 should demonstrate broad-based community demonstrated that the governing not be based on obsolete data from support. document has broad-based support from Census 2010. (8) Comment: Commenters state that the Native Hawaiian community. Response: First, as explained above, the proposed rule’s numerical The same approach applies to the the Census Bureau is only one of several thresholds are inconsistent with tally of affirmative votes cast by the sources used in setting the rule’s requirements established for Indian subset of Native Hawaiians who are also numerical thresholds. Second, 2010 is tribes in the continental United States, ‘‘HHCA Native Hawaiians,’’ except the the year of the most recent Federal including the so-called ‘‘30-percent affirmative vote thresholds are 9,000 decennial census of population, so the rule’’ in 25 U.S.C. 478a, a 1935 (rather than 30,000) and 15,000 (rather Department gave it greater weight than amendment to the Indian than 50,000). earlier census data. Third, the Reorganization Act of 1934 (IRA), which (4) Comment: Commenters state that Department also considered data from provides that certain tribal constitutions the rule’s numerical thresholds should the 2000 Federal decennial census to may be adopted only by a majority vote not be based solely on census data, discern population trends that could be in an election where the total votes cast which rely entirely on self-reporting projected forward to 2016. Finally, the are at least ‘‘30 per centum of those rather than on documentary verification Department considered more recent entitled to vote.’’ of Native Hawaiian descent. census data from the ACS. Figures from Response: The IRA elections Response: The rule’s numerical the 2014 ACS are based on statistical referenced by these commenters do not thresholds are not based solely on sampling rather than an enumerated apply to this rule because the IRA does census data, as the sample methodology headcount and therefore may have a not encompass Native Hawaiians. The presented above demonstrates. In setting sizable margin of error, but are broadly number of persons ‘‘entitled to vote’’ is the thresholds, the Department not only consistent with figures from the based on Congressional definitions and considered data from the Federal decennial censuses. on projections from necessarily decennial censuses of 2000 and 2010 The Department based this analysis imprecise demographic and voter- (both for Hawaii and for the United on existing, available data. If significant turnout data. Some degree of States), but also considered: (1) Voter- new data become available, the approximation therefore is inevitable. registration data for all Hawaiians; (2) Secretary may elect to issue a Although the IRA’s 30-percent rule is voter-registration data for Native supplemental rule revising the rule’s not applicable, available demographic Hawaiians (when such data were kept); thresholds. evidence suggests that the threshold (3) voter-turnout data for all Hawaiians; (6) Comment: The rule provides that numbers the Department selected are (4) voter-turnout data for Native those seeking to vote in any ratification generally consistent with that rule. To Hawaiians (again, when such data were referendum must be able to reliably take one example: It appears that, at kept); (5) data from the 2014 American verify their Native Hawaiian ancestry. some point between 2015 and 2017, the Community Survey (ACS) (both for Some commenters stated that the number of Native Hawaiian adults Hawaii and for the United States); (6) numerical thresholds should be residing in Hawaii topped or will top data from the Native Hawaiian Roll adjusted downward because some self- 200,000. See Ka Huakai: 2014 Native Commission’s Kanaiolowalu roll; (7) reported Native Hawaiians may not be Hawaiian Education Assessment, supra, data from a 1984 survey summarized in able to verify their Native Hawaiian at 20. Thirty percent of 200,000 is the Native Hawaiian Data Book; (8) ancestry, and because the verification 60,000 Native Hawaiian voters—that is, population projections from the process will impose administrative the number of such adults who would Strategic Planning and Implementation burdens that will reduce participation be expected to vote in an election whose Division of the Kamehameha Schools; in the referendum. turnout barely meets 25 U.S.C. 478a’s and (9) data from the Hawaiian Response: The verification process is 30-percent requirement—and a majority Sovereignty Elections Council’s 1996 not likely to be burdensome enough to vote in a 60,000-voter election would ‘‘Native Hawaiian Vote.’’ significantly deter voter participation. In require 30,001 affirmative votes. These The Department finds the actual addition, the final rule includes new figures, among others, support the rule’s election data particularly probative. As provisions in § 50.12 to afford the 30,000-affirmative-vote threshold for explained above, in the 1990s, the Native Hawaiian community flexibility Native Hawaiians. Hawaii Office of Elections tracked in compiling a voter list that is based on Likewise, it is reasonable to estimate Native Hawaiian status. The Office documenting Native Hawaiian ancestry the number of HHCA Native Hawaiian found that the percentage of Hawaii’s without significant administrative adults residing in Hawaii to now be registered voters who were Native burdens in verifying ancestry. about 60,000. See infra (estimating the Hawaiian was rising, from about 14.7 (7) Comment: Commenters suggest fraction of Native Hawaiians who are percent in 1992, to 15.5 percent in 1994, that numerical thresholds should reflect also HHCA Native Hawaiians). Thirty to 16.0 percent in 1996, and 16.7 actual ‘‘participation rates for the larger percent of 60,000 is 18,000 HHCA percent in 1998. This trend is generally U.S. citizenry’’ in actual elections. Native Hawaiian voters—that is, the consistent with census data showing Response: As described above, in number of such adults who would be growth in recent decades in the number establishing the rule’s numerical expected to vote in an election whose of persons identifying as Native thresholds, the Department relied in turnout barely meets 25 U.S.C. 478a’s

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00024 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 71301

30-percent requirement—and a majority Hawaiians who never obtained or even essential to show that the number of vote in an 18,000-voter election would sought a Hawaiian home lands Native Hawaiians supporting a require 9,001 affirmative votes. These residential lease would be inconsistent particular governing document exceeds figures, among others, support the rule’s with Congress’s approach. the number opposing it. If the Native 9,000-affirmative-vote threshold for (11) Comment: Commenters stated Hawaiian people want to consider more HHCA Native Hawaiians. that the numerical thresholds for than one governing document in a (9) Comment: Commenters state that affirmative votes cast by HHCA Native single ratification referendum, they may the rule’s numerical thresholds should Hawaiians should be more than 30 do so by putting each document to its account for out-of-state Native percent of the equivalent numbers for own up-or-down vote. Then, if only one Hawaiians and should not Native Hawaiians because the former governing document garners a majority ‘‘disenfranchise’’ out-of-state Native will ‘‘(a) be more aware that they of the votes cast, it satisfies the rule’s Hawaiians or assume that they are not actually are Hawaiian, (b) [be] more majority-vote requirement. If two or interested in issues involving the Native aware that there is a nation-building more governing documents each garner Hawaiian community. Other initiative afoot, (c) have a bigger stake in a majority, then the community must commenters state that the thresholds are the issue, and (d) be more likely to be apply a previously announced method too low given census data on the size of currently part of an active Hawaiian for determining which governing the Native Hawaiian population sovereignty or cultural group.’’ document prevails. For example, the nationwide. Response: Assuming that the community could decide, prior to the Response: Many out-of-State Native assertions listed in the comment are referendum, that the ‘‘winner,’’ as Hawaiians show great interest in their true, they may render it easier for the between two (or more) governing community and the Department community to meet the 9,000- documents that each receive majority adjusted the estimated voter turnout affirmative-vote threshold. But these support, will be the one that receives upward to include their participation. assertions do not justify raising the the greatest number of affirmative votes. They are not disenfranchised by this threshold, which is tied principally to This approach would also satisfy the rule. Indeed, § 50.14(b)(5)(iii) expressly the size of the community of HHCA rule’s majority-vote requirement. But a accounts for them by requiring that the Native Hawaiians, just as the 30,000- document that is not supported by ratification referendum be ‘‘open to all affirmative-vote threshold is tied much more than a third, or a quarter, of persons who were verified as satisfying principally to the size of the community Native Hawaiian voters cannot form the the definition of a Native Hawaiian . . . of Native Hawaiians. As explained in proper basis for a formal government-to- and were 18 years of age or older [on the detail above, the Department’s best government relationship with the last day of the referendum], regardless estimate of the size of the HHCA Native United States. of residency’’ (emphasis added). It is Hawaiians is that it is about 30 percent (13) Comment: Commenters suggest likely, however, that out-of-State Native the size of the Native Hawaiian that the rule should require a Hawaiians will not participate to the community (including HHCA Native supermajority vote, such as a two-thirds degree that in-state Native Hawaiians Hawaiians). majority, because a constitutional will participate in the ratification (12) Comment: Several commenters ratification typically is held to a higher referendum. Almost half of all self- suggested that the proposed rule be standard than regular legislation, which identified Native Hawaiians in the 2010 revised to allow the ratification may pass with a simple majority vote. Census and the 2014 ACS resided out of referendum to consider multiple Response: While the Department state, but fewer than one-fifth of those potential governing documents, and recognizes that many constitutional on the Native Hawaiian Roll permit adoption of the document that processes, in the United States and Commission’s Kanaiolowalu roll reside secures a plurality of the vote. elsewhere, require supermajority votes, out of state. Thus, while the rule does Response: After evaluating comments the exact fraction (two-thirds, three- not disenfranchise out-of-state Native on this issue, the Department quarters, three-fifths, etc.) is often Hawaiians, it significantly discounts determined to leave these provisions of highly controversial. Furthermore, the their expected participation rate in the rule unchanged. broad-based-community support calculating numerical thresholds. The proposed and final rules leave requirement does not rely on just one (10) Comment: Commenters suggest open the option of structuring a simple majority, but instead turns on that the threshold for HHCA Native referendum process and balloting in both (1) a required voter turnout of both Hawaiians should be based solely on the such a way that the voters may cast Native Hawaiians and HHCA Native number of Hawaiian home lands votes on multiple documents at once— Hawaiians and (2) a requirement of a residential leases and the number of in effect, combining referenda on minimum number of affirmative votes individuals on the DHHL waitlist. several documents into the same from both Native Hawaiians and HHCA Response: The rule is designed to proceeding. Such an approach would Native Hawaiians. Indeed, if total reestablish a formal government-to- provide the members of the Native turnout in a ratification referendum fell government relationship with the entire Hawaiian community options while still a bit short of 60,000 Native Hawaiians Native Hawaiian community, not just providing clear evidence of which (or 18,000 HHCA Native Hawaiians), the with the community of Native documents have broad-based support 30,000- and 9,000-affirmative-vote Hawaiians who reside or wish to reside from the community through a majority thresholds would effectively serve as on Hawaiian home lands. The rule vote. supermajority-vote requirements. Also, requires separate tallying of the But a simple plurality vote is not an in calculating a simple majority, the ratification referendum ballots cast by appropriate way to measure whether a number of votes cast in favor of the HHCA Native Hawaiians because governing document has broad-based governing document must exceed the Congress defined the community using community support. Under a ‘‘plurality sum of the number of votes cast against the narrower definition (limiting the wins’’ rule, the number of votes the governing document and the population to what this rule refers to as required to prevail becomes a function number of spoiled ballots (i.e., ballots ‘‘HHCA Native Hawaiians,’’ rather than of the number of options on the ballot, that were mismarked, mutilated, ‘‘Native Hawaiians’’). Further narrowing not how strongly and broadly supported rendered impossible to determine the the population to exclude HHCA Native any one option is. A majority vote is voter’s intent, or marked so as to violate

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71302 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

the secrecy of the ballot); this, too, is must confirm their support for the Such sworn statements do not impose a akin to a slight supermajority-vote Native Hawaiian government’s structure significant administrative burden and requirement. and fundamental organic law. Although do not require financial or other Moreover, if the Native Hawaiian the distinction may be viewed assistance by the Federal Government. community wishes to require a unfavorably by some commenters, the (17) Comment: Some commenters supermajority vote to adopt its Department chose to defer to the expressed the view that non-HHCA governing document, it certainly may do Congressional definition appearing in Native Hawaiians should not be allowed so without running afoul of the rule. the HHCA in defining a class of eligible to ‘‘outvote’’ HHCA Native Hawaiians. However, the rule itself does not impose voters. Accordingly, both ‘‘HHCA Response: Because the rule requires that requirement. Native Hawaiians’’ and ‘‘Native that a majority of HHCA Native (14) Comment: Some commenters Hawaiians’’ may participate and have an Hawaiians who participate in the objected to defining ‘‘Native Hawaiians’’ opportunity to influence the content of ratification referendum must vote in and ‘‘HHCA Native Hawaiians’’ a constitution or other governing favor of the governing document, it is separately for purposes of voting in the documents and equally decide whether effectively impossible for them to be ratification referendum and suggested that constitution or other governing ‘‘outvoted.’’ See response to comments that all Native Hawaiians should have document is ratified. See § 50.16. on § 50.13(4). ‘‘equal input’’ in establishing a formal (15) Comment: Some commenters (18) Comment: Some commenters relationship with the United States. supported the proposed rule’s approach stated that participants in the Some also suggested that the separate of providing for distinct votes by HHCA ratification referendum for the voting unnecessarily divides the Native Hawaiians and Native Hawaiians governing document, and candidates for community. to be tallied separately—a ‘‘double vote’’ election to the government established Response: In the response to based on the two relevant Congressional by that document, should be required to comments section in the proposed rule, definitions. These commenters stated show proof of political loyalty to the the Department explained the HHCA that this approach was an important Native Hawaiian community and proof beneficiaries’ unique status under safeguard to ensure that ‘‘the rights of of affiliation with Native Hawaiian Federal law and the importance of the HHCA-eligible are not subsumed by cultural, social, or civic groups. recognizing and protecting their Federal the rights of the non HHCA-eligible.’’ Commenters similarly suggested that the rights and benefits in the rule. See 80 FR But others expressed the view that the numerical thresholds should not be 59119–20, 59123–24, 59126. See also double-vote structure of the proposed based on the total number of Native response to comment (1)(f)(1). The rule is ‘‘undemocratic’’ because it gives Hawaiians, but rather on the total Department further explained that greater voting and veto power to HHCA number of Native Hawaiians who Congressional definitions of the Native Native Hawaiians. voluntarily seek to participate in Hawaiian community, in the HHCA and Response: The rule provides that a exercising a Native status under the U.S. other Acts of Congress, require that any majority of the voting members of the Constitution. These commenters stated reestablishment of a formal government- Native Hawaiian community recognized that persons who do not seek to exercise to-government relationship must take by Congress must confirm their support Native status under the U.S. account of both ‘‘HHCA Native for the Native Hawaiian government’s Constitution, or who vehemently Hawaiians’’ and ‘‘Native Hawaiians,’’ structure and fundamental organic law oppose their status as U.S. citizens respectively, to keep within this in order to demonstrate ‘‘broad-based because they consider themselves statutory framework. 80 FR 59124. community support.’’ Congress defines subjects of their own Kingdom, should Therefore, the rule requires that a the Native Hawaiian community in two not be counted when determining majority of the voting members of both separate ways, and the Department is numerical thresholds. the ‘‘HHCA Native Hawaiians’’ and simply using the definitions adopted by Response: The Department considered ‘‘Native Hawaiians’’ confirm their Congress. Moreover, this approach is these comments and elected not to support for the Native Hawaiian consistent with many voting systems revise the rule to include such government’s structure and fundamental that reflect existing geographic or legal limitations. The rule is intended to organic law in order to eliminate any distinctions, such as the U.S. promote self-determination and self- risk that the United States would Constitution’s provision that each State governance for the entire Native reestablish a formal relationship with a has two senators irrespective of Hawaiian community, without Native Hawaiian government whose population. distinguishing between members of the form is broadly objectionable to either (16) Comment: Commenters state that community on the basis of political HHCA Native Hawaiians or Native distinguishing HHCA Native Hawaiian beliefs or points of view. All Native Hawaiians, and to ensure that the voters from other Native Hawaiian Hawaiian adults should have the structure of any Native Hawaiian voters imposes a significant opportunity to vote in any ratification government reflects the views of Native administrative burden of verifying referendum, and this broad population Hawaiians and HHCA Native HHCA Native Hawaiian status and also provides a metric against which Hawaiians. 80 FR 59120. cannot be done without substantial broad-based community support is The rule also requires that the Native monetary and other resources from the measured. The goal of the ratification Hawaiian community demonstrate in its Federal Government. referendum is to measure whether the request to reestablish a formal Response: The response to comment governing document has broad-based government-to-government relationship (1)(c)(1) above explains how sworn support within the Native Hawaiian that its constitution or other governing statements may be used to demonstrate community. It is appropriate to allow document received broad-based ‘‘HHCA Native Hawaiian’’ or ‘‘Native the broadest possible participation in community support from both HHCA Hawaiian’’ status for purposes of voting that referendum. Commenters’ Native Hawaiians and Native in the ratification referendum. The suggested requirement of proof of Hawaiians. Thus, regardless of which sworn statement could be an option for political loyalty or affiliation with Congressional definition is used, a the Native Hawaiian community to Native Hawaiian cultural, social, or majority of each defined group within establish potential voters’ eligibility to civic groups would limit participation the voting members of the community vote in the ratification referendum. in the referendum inconsistent with

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00026 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 71303

Congress’s recognition of the entire could limit its future application. Nor Aleutian or other aboriginal tribe’’ a community and the purposes of this does the Department endorse any citizen with the enactment of the rule. particular roll or process over any other. Nationality Act of 1940, 54 Stat. 1137, The Department did not include any Commenters refer to the fact that the 1138.6 requirements relating to qualifications rule’s requirements differ from those Although some statutes require U.S. for officers in the Native Hawaiian applied by the Native Hawaiian Roll citizenship as an element of the government because such qualifications Commission. Differing requirements statutory definition of membership in are a matter of internal self-government. reflect the separate nature of the two the Native Hawaiian community, those These issues should be decided by the processes and their results. Further, the statutes generally involve eligibility for Native Hawaiian community and Department notes that the requirements federally funded programs or benefits. reflected in its governing document. applied by the Commission have See, e.g., 25 U.S.C. 4221(9) (requiring (19) Comment: Commenters stated changed since the initial enactment of U.S. citizenship for Native Hawaiians to that the Department’s voting Act 195, and may be subject to participate in programs under the requirement is contrary to the subsequent changes. If the Department Native American Housing Assistance methodology used for the Native receives a request seeking to reestablish and Self-Determination Act). It is Hawaiian Roll Commission’s roll under a government-to-government common for Congress to restrict Act 195. relationship, the Department will availability of programs or benefits to Response: On July 6, 2011, the Hawaii evaluate whether the request meets the U.S. citizens; by doing so, however, legislature passed SB1520, which was rule’s criteria and is consistent with this Congress did not exclude non-citizens signed into law as Act 195 by Governor part. from the Native Hawaiian community Neil Abercrombie. That act recognized (h) U.S. Citizenship with which the United States Native Hawaiians as the indigenous established a special political and trust people of the Hawaiian Islands and Issue: The proposed rule required that relationship. Moreover, the Supreme established the Native Hawaiian Roll Native Hawaiians be U.S. citizens. The Court has explained that indigenous Commission to certify and publish a roll Department received a significant communities generally may determine of ‘‘qualified Native Hawaiians.’’ volume of comments requesting that the their own membership as a matter of Although the findings in Act 195 Department eliminate this requirement internal self-governance. E.g., Santa reference the lack of a formal in the final rule, noting that Congress Clara Pueblo, 436 U.S. at 72 n.32. The government-to-government relationship frequently defined ‘‘Native Hawaiian’’ Department determined that between a Native Hawaiian government without requiring U.S. citizenship. Congressional requirements for federally and the United States, the purpose of Comment: One commenter conducted funded programs or benefits do not Act 195 articulates the State’s interests a survey of statutes containing a override this important principle of self- in implementing ‘‘the recognition of the definition of the term ‘‘Native governance, and eliminated the Hawaiian’’ and concluded that of 45 Native Hawaiian people by means and citizenship requirement in the final identified Federal statutes containing methods that will facilitate Native rule. Hawaiian self-governance,’’ including such a definition, 31 do not limit that Although the Department considers the ‘‘use of lands by the Native definition to U.S. citizens. The membership criteria to be matters of Hawaiian people, and by further commenter also noted that the internal self-governance, to the extent promoting their culture, heritage, definition of ‘‘native Hawaiian’’ in the Federal law incorporates U.S. entitlements, health, education and HHCA does not incorporate a U.S. citizenship as a requirement for welfare.’’ In 2013, the Hawaii legislature citizenship requirement, and that a participation in a Federal program or for adopted Act 77, which provided for the review of 48 tribal government eligibility for Federal benefits, that inclusion of additional persons on the constitutions revealed that 92 percent requirement remains in effect, roll compiled by the Native Hawaiian do not require U.S. citizenship as an notwithstanding membership provisions Roll Commission. express condition of tribal membership. adopted by a Native Hawaiian The Act 195 process is a separate and The commenter stated that, in at least government. distinct process from that set out in this one instance, the Federal Government rule, and has a separate, although adjusted Federal law to accommodate a (i) Roll similar, purpose. The Department did Native government’s citizenship Issue: Commenters expressed views not conform the requirements in the definition that allowed for non-citizens on the proposed rule’s reliance on a final rule to the provisions of any roll to become members (citing the Texas State roll, also called Kanaiolowalu, or process now existing or underway Band of Kickapoo Act, Pub. L. 97–429, compiled by the Native Hawaiian Roll within the State of Hawaii. Nonetheless, 96 Stat. 2269 (1983)). The commenter Commission (NHRC). as the Native Hawaiian community also stated that ‘‘the practical reality is (1) Comment: Some commenters prepares its list of eligible voters, the that the number of Native Hawaiians stated that they objected to provisions of rule does not prohibit it, in the exercise who are not U.S. citizens represents a de the proposed rule, including of self-determination over its own minimis percentage of the overall § 50.12(a)(1)(ii) and (b), ‘‘that would affairs, from relying on a State roll or population of qualified Native allow a roll of Native Hawaiians State documentation that is based on Hawaiians.’’ certified by a State of Hawaii verified documentation of descent as an Response: After considering these commission like Kanaiolowalu that is alternative to doing its own verification comments, the Department eliminated being used by Nai Aupuni to determine of descent. The rule is intended to the U.S. citizenship requirement in the participation’’ and requested that these provide guidance and a process to a final rule. Section 4 of the Hawaiian provisions be removed. The commenters Native Hawaiian government that Organic Act declared all persons who stated that it was not appropriate to submits a request and can meet the were citizens of the Republic of Hawaii accord special status to a roll compiled rule’s requirements. Such a request on August 12, 1898, citizens of the by a State agency, and also opposed any could be submitted at any time in the United States. Further, Congress made future, so the rule is not linked to any every ‘‘person born in the United States 6 Congress made all non-citizen Indians citizens existing processes or circumstances that to a member of an Indian, Eskimo, by the Act of June 2, 1924, 43 Stat. 253.

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71304 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

use of the NHRC Roll because of the For instance, the Department Congressional definitions of Native nature of the process used by the NHRC. acknowledged commenters’ concerns by Hawaiians, which require a Response: The Department considered providing a uniform standard for demonstration of descent from the these comments and determined it preparation of the list of eligible voters population of Hawaii as it existed before appropriate to revise these provisions of by the Native Hawaiian community. The Western contact. The Department the proposed rule to address this issue. criteria for the list provide that it must adheres to Congress’s definition of the The Department agrees with this not include adults who object to being nature and extent of the Native comment in part. The proposed rule listed, and revised § 50.12(a) provides Hawaiian community. incorporated distinct standards for use that the community must make (4) Comment: A commenter stated of a roll compiled by a State agency. In reasonable and prudent efforts to ensure that ‘‘the Supreme Court’s injunction [in response to these comments, the rule the integrity of its list. Importantly, the the Akina litigation] should caution any now provides that the Native Hawaiian proposed rule did not require use of any prudent public official to question the community will compile its list of State roll; and the final rule permits, but wisdom of using Hawaii’s tainted eligible voters. The rule provides a does not require, the Native Hawaiian registration roll for any purpose uniform standard to govern the list of community to use a State roll, with whatsoever.’’ eligible voters for the ratification conditions and modifications, for Response: As explained above, the referendum, which would apply purposes of demonstrating how it proposed and final rules do not require irrespective of who prepared the list. determined who could participate in the use of any particular roll, including That approach allows the Native ratifying a governing document. See the NHRC roll. The final rule requires Hawaiian community the freedom to § 50.12(a). the Native Hawaiian community to determine how it will develop a list for Moreover, the Department defers to prepare its list of voters and sets out the use in ratification of its governing the Native Hawaiian community itself to requirements for that list, but it does not documents. establish the process by which it will preclude reliance on any pre-existing roll as long as that roll meets the The rule does not, however, bar the compile any list of voters, subject to certain requirements set forth in the standards in the rule. use of a roll that incorporates work by The Department need not and will not State agencies, especially if it is efficient final rule. These requirements address some of issues raised by commenters address the merits of the Akina to do so. For instance, the Department relating to the NHRC. For instance, the litigation in this rulemaking. The sees little benefit in the Native Hawaiian proposed and final rules both contain injunction referenced by the commenter community redoing work done by the provisions that are intended to provide preserved the status quo during a State that verified Native Hawaiian for the integrity of the process of pending appeal, and did not resolve the ancestry, including its determination compiling the list and to protect the merits of the case. The United States’ that an individual qualifies as an HHCA integrity of the voting process itself. The views on the Akina litigation are Native Hawaiian. To the extent a State rule permits the community to rely on available for review in briefs submitted roll is based on documented ancestry, documented sources that it determines to the United States District Court for the Native Hawaiian community may are reliable in compiling its list. the District of Hawaii and to the United rely on it, if it so chooses. Such reliance If a reorganized government submits a States Court of Appeals for the Ninth will facilitate the process of preparing request to the Secretary to reestablish a Circuit. its list of voters, particularly if relevant formal government-to-government (5) Comment: One commenter records are within the exclusive control relationship, the rule provides that the objected to the use of the Kanaiolowalu of State agencies, and will minimize the request must include an explanation of because it based eligibility to register in burdens on individual Native Hawaiians the manner in which the rule’s part on a declaration of ‘‘civic, cultural, who previously submitted documentary requirements were satisfied. The public or social connection as demonstrated in evidence and were determined to be will have an opportunity to comment on their unrelinquished sovereignty.’’ qualified. The Department respects the any request the Secretary receives. Response: The proposed rule did not Native Hawaiian community’s ability to Individuals who continue to have require reliance on the Kanaiolowalu or reorganize its government for the concerns about the process used in any other state roll as the sole means to purposes of reestablishing a formal compiling the voter list may submit determine eligibility to vote in the government-to-government relationship comments at that time. In making a ratification referendum. Sections 50.12; as it sees fit, and therefore defers to the decision, the Secretary will review not 50.14(b)(5)(iii). The preamble to the community as to whether and to what only the specific request but also the proposed rule at 80 FR 59122 provided extent it wishes to rely on State sources overall integrity of the ratification expressly that such a declaration as to tailor a list of eligible voters for process to determine if it was free and referred to by the commenter was not ratification purposes. The Department fair and otherwise complies with the required for purposes of participation in revised § 50.12 to address these rule’s requirements. the ratification referendum. Further, the comments. (3) Comment: A commenter said that proposed rule placed express conditions (2) Comment: Some commenters it was not appropriate for the roll used on any use of a State roll, such as the questioned the methods used to compile in conducting the ratification Kanaiolowalu, see § 50.12(b)(2). the NHRC roll, stating that the names of referendum under § 50.12 to incorporate Nevertheless, the comments indicate deceased individuals, minors, and any considerations of racial ancestry, some confusion on the permissible use persons who did not consent to be listed and that use of the NHRC roll was of any State roll under the terms of the appear on the roll. Others stated that inappropriate for this reason. proposed rule. ‘‘most Hawaiians have not agreed to’’ Response: To the extent that these Accordingly, the final rule includes a the NHRC roll process and that the roll comments suggest that the Department revised § 50.12(a) that provides that the will not benefit the Native Hawaiian must reestablish a formal government- Native Hawaiian community itself people generally. to-government relationship with a prepares the list of eligible voters. It also Response: The Department reviewed government that includes non-Native clarifies alternative means by which an these comments and made changes in Hawaiians as members, that result is individual Native Hawaiian can the final rule in § 50.12. precluded by longstanding demonstrate a right to vote in the

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00028 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 71305

referendum, even if that individual is matters necessary to reestablishing a acquisition of lands formerly owned by not on a roll that the community may formal government-to-government the Kingdom of Hawaii and its choose as a foundation from which to relationship with the United States. monarchs. build its complete voter list. Finally, the (2) Comment: Some commenters Response: Changes in title to Federal final rule includes, in response to other stated that Nai Aupuni did not represent lands require statutory authority. This comments, sworn statements for self- their views and could not speak for rule does not alter any existing Federal certification or for sponsoring another, them without their consent. Others law that authorizes the transfer of and reliance on current or prior expressed concerns about alleged flaws Federal property. It is possible, enrollment as a Native Hawaiian in a in the nation-building process however, that a future Native Hawaiian Kamehameha Schools program, certain conducted by Nai Aupuni. Governing Entity may be qualified to birth certificates, and court orders. Such Response: Section 50.11 provides that receive Federal property under changes also address the commenter’s the written narrative thoroughly provisions of Federal law. concerns. In sum, even if a declaration describing the process for drafting the With respect to comments questioning as described by the commenter were governing document must describe how the legal status of existing Federal required for purposes of being on a State the process ensured that the document property, the Supreme Court recently roll that the community may rely on was based on meaningful input from discussed this issue in Hawaii v. Office under § 50.12(a), the Native Hawaiian representative segments of the Native of Hawaiian Affairs, 556 U.S. 163 community must also accept, for Hawaiian community and reflects the (2009), and found that title was properly purposes of the referendum ratification, will of the Native Hawaiian community. in the Federal government. Therefore, other persons who demonstrate This general requirement helps to only Congress can resolve the eligibility based on HHCA-eligibility or ensure that the process for drafting the commenters’ concerns. Native Hawaiian ancestry. governing document includes input Several commenters expressed the from representative segments of the importance of allowing a future Native (j) Nai Aupuni community. The regulations do not set Hawaiian sovereign to hold property, Issue: Commenters expressed concern specific requirements relating to the noting that Native Hawaiians are about the nation-building process process of nation-building. The process spiritually connected to the land and facilitated by Nai Aupuni, a nonprofit of nation-building is one for the Native that title to land can facilitate self- organization that convened a Hawaiian community to undertake on governance. Although the rule does not constitutional convention, known as an its own, and the Department will defer affect Federal lands, a future Native Aha, of Native Hawaiians to reorganize to the community to carry out that Hawaiian government could acquire as a government. process. Accordingly, the proposed rule property by other methods. For (1) Comment: Several commenters sets forth only general requirements for example, an existing provision of State indicated their belief that the purpose of submitting a request to reestablish a law provides for the transfer of one of the proposed rule was to design, formal government-to-government the Hawaiian Islands, Kahoolawe, to implement, or evaluate the outcome of relationship. The final rule retains these ‘‘the sovereign native Hawaiian entity the Aha coordinated by Nai Aupuni. limited general requirements. The upon its recognition by the United They suggested that the proposed rule Department takes no position in the rule States and the State of Hawaii.’’ Haw. had a predetermined outcome —either as to whether any ongoing nation- Rev. Stat. 6K–9 (2016). A future Native that no entity would be able to meet the building process might meet those Hawaiian government could also criteria to reestablish a formal requirements. If Native Hawaiians do acquire property by other means, and relationship with the United States, not agree with a particular nation- the rule does not affect its ability to do particularly because doing so would building process or approach, they will so. pose a significant financial impediment, have the opportunity to vote in a (2) Comment: Commenters requested or that only the entity that emerged from referendum and express that view. that the final rule omit § 50.44(f) the Aha coordinated by Nai Aupuni If a reorganized government submits a entirely, while others suggested revising would qualify. request to the Secretary to reestablish a § 50.44(f) in the final rule by changing Response: These commenters formal government-to-government the word ‘‘will’’ to ‘‘does’’ and adding misunderstood the proposed rule. The relationship, the rule provides that the the word ‘‘current’’ before ‘‘title’’ so the process set forth in the proposed rule is request must include an explanation of paragraph reads: ‘‘Reestablishment of applicable to any entity that results from the manner in which these requirements the formal government-to-government the current government-reorganization were satisfied. The public will have an relationship does not affect the current process, or from any other such process opportunity to comment on any request title, jurisdiction, or status of Federal in the future. The final rule does not the Secretary receives. Individuals who lands and property in Hawaii’’ change this broad applicability. It is have concerns about the process used by (emphasis added). entirely up to the Native Hawaiian the Native Hawaiian community may Response: Section 50.44(f) expressly community to determine whether or submit comments at that time. preserves the title, jurisdiction, and when it will reorganize a formal status of Federal lands and Federal government, and it may seek financial (k) Land status property in Hawaii. Therefore, because assistance from various sources to fund Issue: Commenters objected to reestablishment of the formal its future governmental activities, § 50.44(f) of the proposed rule, which government-to-government relationship, including conducting the ratification expressly preserves the title, by itself, would not affect title, referendum. Similarly, it is entirely up jurisdiction, and status of Federal lands jurisdiction, or status of Federal lands to the Native Hawaiian community to and property in Hawaii. either at the time of reestablishment of determine the form and functions of (1) Comment: Some commenters the relationship or at any time such government and to avail itself of stated that the proposed rule should thereafter, the Department did not revise the process established in the final rule. provide for certain Federal lands to be § 50.44(f) with ‘‘current’’ as suggested. The rule does not infringe on the self- transferred to Native Hawaiians or The Department did, however, revise determination of the Native Hawaiian Native Hawaiian entities, and this paragraph by changing ‘‘will’’ to community, and addresses only those questioned the legal validity of Federal ‘‘does’’ to make express that nothing in

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71306 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

the rule itself would affect the status of (m) Reestablishment of a Government- Hawaiians, nor do those regulations Federal lands and property. to-Government Relationship apply to an Indian tribe that already has As stated above, the Department Issue: Commenters asked specific been recognized by Congress. 25 CFR appreciates that members of the questions related to the reestablishment part 83. The final rule is not an community believe it is important to of a formal government-to-government amendment to those regulations, but a secure a land base for the future relationship and its potential impacts. freestanding rule that takes into account reorganized Native Hawaiian (1) Comment: Commenters asserted the unique status of the Native government; however, providing for that the HHCA authorized land to be Hawaiian community. (3) Comment: Some commenters jurisdiction or changing the status of taken into trust for the benefit of HHCA indicate concern that development of a Federal lands and property may only beneficiaries, including acquisitions and procedure to reestablish a formal occur with statutory authorization. land exchanges, citing to HHCA Section government-to-government relationship Following reestablishment of a 206. These commenters suggest that the with the Native Hawaiian community government-to-government relationship, HHCA is sufficient legal authority for would surrender either Native Hawaiian the Native Hawaiian Governing Entity the Department to place lands into trust sovereignty or the future ability of some may advance any concerns it may have for the benefit of the Native Hawaiian groups to assert self-governance rights. on land-related issues to the executive Governing Entity without further and legislative branches of the United Response: The premise of this Congressional authorization. rulemaking process is that Native States Government on a government-to- Response: The Department recognizes government basis. Hawaiian people retain their inherent the vital importance of a land base to sovereignty, which Congress recognizes (l) Gaming the governments of indigenous and acknowledges through enacting communities in the United States, Issue: The Department solicited over 150 statutes, thereby creating a including the Native Hawaiian special political and trust relationship public comments in the proposed rule, community. There is no present Federal 80 FR 59121, about whether the with the Native Hawaiian community. statutory authority, however, for taking The rule creates a process to reestablish reestablishment of a formal government- land into trust for the Native Hawaiian a formal government-to-government to-government relationship would community, including the HHCA, relationship with a future Native entitle the Native Hawaiian government which applies to the Hawaiian home Hawaiian reorganized government. The to conduct gaming under the Indian lands that are under State (not Federal) existence of such a process, however, Gaming Regulatory Act (IGRA). jurisdiction. A primary source of the does not change the nature or the Comment: Some commenters Department’s authority to take land in inherent sovereignty of the Native responded that IGRA should apply, trust for tribes in the continental United Hawaiian community. others commented that the Native States is the IRA, and Native Hawaiians (4) Comment: Some commenters Hawaiian Governing Entity’s inherent are outside its scope. See Kahawaiolaa expressed concern that the future Native sovereign powers would include the v. Norton, 386 F.3d at 1280 (noting that Hawaiian government would not have power to conduct gaming activities, and the IRA’s geographic-scope provision, the ability to bring suit to seek redress that this inherent power could not be 25 U.S.C. 473, expressly excluded for past wrongs. They referenced claims limited in any way, or be ‘‘subordinate’’ territories but included Alaska, and that relating to ‘‘1.8 million acres of land to State law. One commenter suggested the definition of ‘‘Indian’’ in 25 U.S.C. ceded by the Republic of Hawaii to the that ‘‘[g]aming by the Native Hawaiian 479 specifically referenced aboriginal United States,’’ to ‘‘Hawaiian government should be left to peoples of Alaska, a territory like Homelands used now for airports or . . . negotiations with the Federal Hawaii at the time the IRA was enacted, harbors,’’ to ‘‘people who have died government.’’ and finding that, by its terms, the IRA without an award while waiting on the Response: The Department concludes ‘‘did not include any native Hawaiian list of Hawaiian Homes,’’ and other that IGRA does not apply. For the group’’). Consequently, the Secretary claims. reasons set forth below in Section does not have authority to take land into Response: Neither the proposed rule (IV)(C), the Native Hawaiian Governing trust for Native Hawaiians under the nor the final rule presumes to address Entity would not be within the IRA. possible claims by Native Hawaiians for definition of ‘‘Indian tribe’’ appearing in (2) Comment: The Department past wrongs. The rule provides, in IGRA, which is limited to those tribes received a number of comments that § 50.44(a), that the Native Hawaiian that are ‘‘recognized as eligible by the indicated a belief that the final rule Governing Entity will have ‘‘the same Secretary for the special programs and would alter an existing regulatory inherent sovereign governmental services provided by the United States structure. The comments did not, authorities’’ as do federally-recognized to Indians because of their status as however, state specifically which tribes in the continental United States. Indians.’’ 25 U.S.C. 2703(5); 25 CFR existing regulations would be altered. The Native Hawaiian Governing Entity 292.2. IGRA was enacted to balance the Response: The rule does not alter an will have the capacity to sue and be interest of states and tribes and to existing regulatory structure. It creates a sued (subject to sovereign immunity and provide a framework for regulating new, one-time procedure for other jurisdictional limitations), as do gaming on ‘‘Indian lands.’’ There are no reestablishing a formal government-to- other indigenous sovereigns in the such lands in Hawaii. Even if it could government relationship with the Native United States. The inherent be argued that certain Hawaiian lands Hawaiian community. No such rule is governmental authorities of tribes in the are similar to ‘‘Indian lands’’ within the currently in place. The Department has continental United States include the meaning of IGRA, IGRA does not permit regulations in place for facilitating the ability to file suit to seek redress for past gaming in any State that prohibits all reorganization of tribal governments, wrongs. This rule does not alter the forms of gaming. See 25 U.S.C. but those regulations by their terms do sovereign immunity of the United States 2710(b)(1)(A) and (d)(1)(B). Hawaii not apply to the Native Hawaiian or of the State of Hawaii against claims statutes broadly prohibit all forms of community. See 25 CFR part 81. In for past wrongs. The Department will gaming. See State v. Prevo, 361 P.2d addition, Department regulations under not address the validity of particular 1044, 1048–49 (Haw. 1961). part 83 do not apply to Native legal claims identified by commenters

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00030 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 71307

because they are beyond the scope of reestablished with a Native Hawaiian reference to part 83 signals the proposed rule. government pursuant to this Rule, Congressional approval of the (5) Comment: Multiple comments Federal agencies would evaluate Department’s authority to adopt such requested that the proposed rule be whether consultation could occur under procedures by regulation. The clarified to indicate that it was not existing consultation policies, or Department adopted part 83, following intended to affect any claims that the whether those policies would need to be notice and comment, through the Native Hawaiian people may have for modified. exercise of its delegated authorities. redress under Federal law. (8) Comment: Several commenters This rule is adopted through the same Response: Any existing claims that expressed the view that Native process and under the same authorities. the Native Hawaiian people may have Hawaiians should be eligible for Nonetheless, the significant difference for redress under Federal law, either programs available to Native Americans between part 83 petitioners and the individually or collectively, are not under Federal law. Native Hawaiian community is that addressed by this rule. The Department Response: Congress provides a Congress itself has already recognized, makes no comment as to the potential distinct set of programs and benefits for and established a special political and merits of any such claims, which are Native Hawaiians. In some instances, trust relationship with, the Native properly addressed by the legislative or Congress provides for Native Hawaiians Hawaiian community; the finding cited judicial branches of the Federal to participate in programs directed to by the commenter also references the Government rather than in this Native Americans generally. In others, power of Congress in this respect. rulemaking. The existence and Congress provides a parallel set of Therefore, this rule addresses a consideration of any claims that may benefits to Native Hawaiians within the fundamentally different situation than exist are not related to the final rule and framework of legislation that also that addressed in part 83. are separate and distinct matters. provides programs to other Native (10) Comment: A commenter states Accordingly, the Department made no groups. As explained elsewhere in the that the Department’s proposed changes to the proposed rule in Preamble, the Department determined approach of including Native Hawaiians response to this comment. that Congress included Native within the scope of the Indian Civil (6) Comment: Some commenters Hawaiians in a large number of Federal Rights Act, but not within the scope of suggested that once a formal programs in various ways. In some other Federal statutes, did not reflect a relationship is reestablished pursuant to instances, Congress expressly provided consistent approach to the application the rule, the Native Hawaiian Governing for Native Hawaiians to receive benefits of existing Federal statutes addressing Entity could rely on the Trade and as part of a program provided to Native Native Americans. Intercourse Act, 25 U.S.C. 177, to trigger Americans generally; in others, Response: To determine which lawsuits alleging unconstitutional Congress has provided a distinct statutes will apply to the Native takings of Federal, State, and private program or set of programs, parallel to Hawaiian Governing Entity, the lands in Hawaii. those that exist for other Native Department considers each statute’s Response: The Trade and Intercourse American groups. See Section (IV)(C). language defining its scope of Act requires Congressional ratification To the extent that Native Hawaiians application. The requirements of the of transfers of real property from Indian are not eligible for certain programs, it Indian Civil Rights Act apply to ‘‘Indian tribes. The U.S. Supreme Court follows that this treatment reflects a tribes,’’ and that act uses broad language recognized in Hawaii v. Office of conscious decision by Congress. to define the term ‘‘Indian tribe’’: ‘‘Any Hawaiian Affairs, 556 U.S. 163 (2009), Moreover, because of the structure of tribe, band or other group of Indians that claims to title of public lands were many Federal programs, to treat a Native subject to the jurisdiction of the United extinguished when Hawaii was annexed Hawaiian government or its members as States and recognized as possessing as a United States territory. As a result, eligible for programs provided generally powers of self-government.’’ This subsequent transfers of these lands are to federally-recognized tribes or their language would include the Native not subject to the Act. Moreover, the Act members in the continental United Hawaiian Governing Entity. By contrast, does not apply to lands transferred into States could result in duplicative many other Federal statutes define the private ownership before annexation, as services or benefits. The Department term ‘‘Indian tribe’’ by referring to tribes Hawaii was then a separate sovereign concludes that it is for Congress to that are ‘‘eligible for the special that was not subject to the requirements decide to include Native Hawaiians in programs and services provided to of the Act. additional Federal programs directed Indians because of their status as (7) Comment: Several commenters towards Native Americans. Indians,’’ and as discussed in Section requested that the rule address (9) Comment: The List Act states: (IV)(C), Congress provided for the procedures for consultation between ‘‘The Congress finds that . . . (3) Indian Native Hawaiian community under a Federal agencies and the Native tribes presently may be recognized by separate panoply of programs and Hawaiian Governing Entity, following Act of Congress; by the administrative services. reestablishment of a government-to- procedures set forth in part 83 of the (11) Comment: A commenter government relationship. Code of Federal Regulations expressed concern about the possibility Response: Procedures for consultation denominated ‘Procedures for that the Indian Child Welfare Act and with federally-recognized tribes in the Establishing that an American Indian the Violence Against Women Act would continental United States are set forth Group Exists as an Indian Tribe.’’ List become applicable in Hawaii by virtue generally in Executive Order 13175. In Act findings, sec. 103. A commenter of reestablishment of a government-to- addition, many Federal agencies have expressed concern that this language is government relationship, stating that the their own policies governing tribal inconsistent with the Department’s application of these statutes would have consultation. The Department of the proposal in the notice of proposed disruptive effects in Hawaii. Interior and other Federal agencies rulemaking. Response: Neither the Indian Child already consult with Native Hawaiian Response: The Department notes that Welfare Act nor the Violence Against organizations under these existing the quoted language refers to the Women Act’s tribal-criminal- policies. Should a government-to- Department’s existing part 83 jurisdiction provision would apply to government relationship be procedures, and that Congress’s the Native Hawaiian Governing Entity.

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71308 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

The Indian Child Welfare Act applies Department determined that the existing between Native Hawaiians and non- only with respect to ‘‘Indian tribes,’’ and language of § 50.44(a) adequately Native Hawaiians. defines ‘‘Indian tribe’’ to mean ‘‘any describes the inherent authorities of the Response: The rule is based on the Indian tribe, band, nation, or other Native Hawaiian Governing Entity, and pre-existing sovereign authority of the organized group or community of therefore made no changes in the rule. Kingdom of Hawaii that was evidenced Indians recognized as eligible for the (13) Comment: A few commenters by treaties with the United States and services provided to Indians by the expressed concern that existing Federal later suppressed as part of the Secretary because of their status as and State laws would no longer apply annexation process; it is not creating Indians, including any Alaska Native to members of the Native Hawaiian any ‘‘social divisions’’ as the commenter village as defined in section 1602(c) of Governing Entity. suggests. The rule provides a process for title 43.’’ 25 U.S.C. 1903(8). Because the Response: Members of the Native reestablishing a formal government-to- Native Hawaiian Governing Entity Hawaiian Governing Entity would government relationship between two would not be an entity ‘‘recognized as remain subject to applicable Federal and sovereigns and will assist the Native eligible for the services provided to State law, as well as laws enacted by the Hawaiian community in preserving Indians by the Secretary because of their Native Hawaiian Governing Entity. their unique culture, language, and status as Indians,’’ the statute would not For example, the Native Hawaiian traditions. Congress found that the apply. And the Violence Against Governing Entity would have authority constitution and statutes of the State of Women Act’s provision recognizing to exercise jurisdiction over Hawaii similarly ‘‘protect the unique tribal criminal jurisdiction over certain relationships between its members by right of the Native Hawaiian people to domestic-violence crimes applies only enacting family laws, contract laws, or practice and perpetuate their cultural to conduct that ‘‘occurs in the Indian other laws that would govern those and religious customs, beliefs, practices, country of the participating tribe.’’ 25 relationships. To the extent that the and language.’’ Native Hawaiian Health U.S.C. 1304(c)(1), 1304(c)(2)(A). As Native Hawaiian Governing Entity Care Act, 42 U.S.C. 11701(3); see Native explained in these responses to adopts such laws, they generally would Hawaiian Education Act, 20 U.S.C. comments, there will not be Indian apply as between its members 7512(21). Consistent with these country in Hawaii absent some notwithstanding contrary State law. See findings, the Department agrees with the affirmative Congressional action, and Kelsey v. Pope, 809 F.3d 849 (6th Cir. commenter who observed that ‘‘[t]he these provisions will therefore not apply 2016); John v. Baker, 982 P.2d 738, 749 Native Hawaiian people and their unless Congress determines otherwise. (Alaska 1999). culture are the foundation of the culture (12) Comment: Commenters requested Because there is no Indian country in of the State of Hawaii, and an integral that the language of § 50.44(a) be Hawaii, upon reestablishing a part of what makes Hawaii work as a amended to state: ‘‘§ 50.44 (a) Upon government-to-government relationship multicultural society . . . . A federally- reestablishment of the formal with the United States, the Native recognized Native Hawaiian government government-to-government relationship, Hawaiian Governing Entity would not will help to improve the Native the Native Hawaiian Governing Entity have territorial jurisdiction. While Hawaiian people’s ability to strengthen will have the same government-to- Congress imposed certain restrictions on and perpetuate the indigenous culture government relationship under the alienation of Hawaiian home lands, title and language of these islands, thereby United States Constitution and Federal to those lands is held by the State, not strengthening Hawaii for all.’’ law as the government-to-government the Federal Government. Therefore, the (16) Comment: Commenters relationship between the United States State retains jurisdiction over Hawaiian questioned the use of the term and a federally-recognized tribe, with home lands unless Congress provides ‘‘reestablish’’ in referring to a future the same privileges, immunities and otherwise in the future. See response to government-to-government relationship inherent sovereign governmental comment (l)(2). between the United States government authorities.’’ Commenters stated that (14) Comment: One commenter stated and a Native Hawaiian government. this language will clarify that the Native that the rule would ‘‘open a Pandora’s They noted that the relationship Hawaiian government will have both box’’ for other groups, such as the between the United States government the same privileges and immunities as Amish and Cajuns, to seek tribal status. and the Hawaiian Kingdom was a treaty other federally-recognized tribes in the Others expressed similar concerns. relationship between nation-states, and continental United States, and possess Response: These commenters do not that a future relationship with a Native the same inherent sovereign appear to appreciate the important Hawaiian government would have a governmental authorities. distinction between communities based different character. Response: The Department agrees on shared history and culture and a Response: The Department agrees that that, following the reestablishment of a political community that represents the the formal government-to-government formal government-to-government continuous existence of an inherent relationship with a Native Hawaiian relationship pursuant to this Part, the indigenous sovereign, such as the government would have very different Native Hawaiian government will have Native Hawaiian community. The U.S. characteristics from the government-to- the same inherent sovereign Constitution expressly references Indian government relationship that formerly governmental authorities as federally- tribes and provides for relationships existed with the Kingdom of Hawaii, recognized tribes in the continental with them; the Amish, Cajuns, and and would much more closely resemble United States, as set forth in § 50.44(a). similar groups do not have native or the relationship with federally- Those authorities include certain indigenous status under Federal law. recognized tribes in the continental inherent attributes of sovereignty, such See further discussion of the continuing United States. The Department’s use of as sovereign immunity. Likewise, Native Native Hawaiian political community in the term ‘‘reestablish’’ is intended to be Hawaiian rights, protections, privileges, Section (II). understood in this broader context. immunities, and benefits under Article (15) Comment: Some commenters The Department notes that, due to the XII of the Constitution of the State of expressed concern that the rule would unique history of Hawaii, either the Hawaii would not be affected by divide Hawaii’s integrated, term ‘‘reestablish’’ or the term reestablishment of a government-to- multicultural Hawaiian society and ‘‘establish’’ could be used to describe government relationship. The create unnecessary social divisions the formalization of the relationship

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00032 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 71309

between the United States Government with the Native Hawaiian community, changed their form of government over and a Native Hawaiian Governing and thus determined that the time, including in response to Western Entity, and believes that either term is community’s political existence was not contact. The single, centralized appropriate. The relationship between negated by the historical events government of the Kingdom of Hawaii, the United States and the Native identified by these commenters. It which was in place for almost a century Hawaiian community is reflected in a follows that the Department has before its overthrow in 1893, provides a significant number of Congressional authority to reestablish a formal strong basis on which to proceed here actions recognizing and providing government-to-government relationship with a single Native Hawaiian benefits to Native Hawaiians, though the with a future reorganized Native government to conduct relations with Native Hawaiian community has lacked Hawaiian government. the United States on a formal a unified formal government since the That the Kingdom of Hawaii included government-to-government basis. nineteenth century. The Native non-Hawaiian citizens among its Moreover, doing so is consistent with Hawaiian community historically had a citizenry does not establish that the how Congress treated the Native unified formal government that was Native Hawaiian community ceased to Hawaiian community as a single entity recognized through formal treaties with exist or exercise political authority. As through more than 150 laws that the United States. Due, in part, to set forth in the background discussion established programs and services for its actions taken by representatives of the of this rule, the Native Hawaiian benefit. United States, the Kingdom of Hawaii community continued to demonstrate As correctly noted by commenters, was overthrown, and the Native its existence as a distinct political Congress used two definitions of Native Hawaiian community has not community separate and apart from Hawaiian to establish eligibility for maintained a unified formal government non-Native Hawaiians before, during, Native Hawaiian programs and services. over the past several generations. The and after the Kingdom’s overthrow. See response to comment (e)(1). In the United States relationship with a Native Moreover, though non-Native Hawaiians rule, the Department reconciled Hawaiian Governing Entity would be participated in governance of the Congress’s use of these two definitions ‘‘reestablished’’ in the sense that the Kingdom, they were considered with its treatment of Native Hawaiians United States previously maintained a ‘‘foreigners’’ and their rights were as a single community by providing for formal relationship with a Native limited. See I Ralph S. Kuykendall, The a government-to-government Hawaiian government, not that the Hawaiian Kingdom 227–41 (1947) relationship with one Native Hawaiian former relationship between the United (citing Constitution and Laws of the government that has broad-based States and the Kingdom of Hawaii Hawaiian Islands, Established in the community support among both HHCA would resume or be resurrected. Reign of Kamehameha III (1842)). The Native Hawaiians and the broader group (17) Comment: One commenter stated rights of such ‘‘foreigners’’ evolved over of Native Hawaiians. Moreover, the that because the Kingdom of Hawaii time, but the Kingdom was a monarchy, Department is aware of no Federal included native-born and naturalized and only Native Hawaiians served as statutes directed specifically to non-Hawaiian citizens, many of whom monarchs. The United States had a individuals who are Native Hawaiians served in high-ranking positions in the treaty relationship with the Kingdom of but who are not HHCA Native Kingdom government, no ‘‘Native Hawaii that persisted through active Hawaiians. This lack of statutory Hawaiian’’ government consisting solely involvement by Native Hawaiians in the separation of the two demonstrates that of Native Hawaiians could now Kingdom’s government. The fact that Congress views HHCA Native ‘‘reorganize’’ itself and ‘‘reestablish’’ a ‘‘foreigners’’ lived and participated in Hawaiians as included within the formal government-to-government the political process in Hawaii at the broader group of Native Hawaiians, relationship with the United States. time does not alter the fundamental fact rather than treating the two as distinct Other commenters similarly asserted that the United States had a prior and separate for Federal programs and that the ‘‘multiethnic’’ nature of the political relationship with the Native services. Finally, as noted above in Kingdom at the time of its overthrow Hawaiian community’s government in response to comments about political disqualifies any future Native Hawaiian the 1800s. subdivisions, it is not uncommon for the government from exercising self- (18) Comment: Some commenters United States to have a government-to- determination and self-governance objected to the proposed rule’s government relationship with a single pursuant to Federal law, and that limitation on reestablishing a indigenous government that represents consequently the Department lacks the government-to-government relationship multiple communities with distinct authority to promulgate this rule. with a single Native Hawaiian historical and cultural roots and Response: The Department does not government. Among these commenters, property rights. agree that the presence of non-Native some proposed that the Secretary allow The final rule also envisions that the Hawaiians in the Hawaiian Kingdom separate government-to-government Native Hawaiian government may adopt indicates that the Native Hawaiian relationships with HHCA Native either a centralized structure or a community lost its character as a self- Hawaiians and with other, non-HHCA decentralized structure with political governing indigenous community. For Native Hawaiians based on Congress’s subdivisions defined by island, by example, many Indian tribes in the separate treatment of these groups. geographic districts, historic continental United States welcomed Other commenters stated that Native circumstances, or otherwise in a fair and outsiders and intermarried with non- Hawaiians did not have a single unified reasonable manner. Allowing for Indians, and others found themselves government until after contact with political subdivisions is consistent with living in close association with non- Western societies, so that there is no principles of self-determination Indians as a result of patterns of historical basis for treating them as a applicable to Native groups, and migration and settlement. Those single community in the proposed rule. provides some flexibility should Native circumstances did not preclude those Response: Many other commenters, Hawaiians wish to provide for Indian tribes from continuing to exist as however, supported the Department’s subdivisions with whatever degree of self-governing and sovereign nations. approach to provide for a single autonomy the community determines is Moreover, Congress established a government-to-government relationship. appropriate, although only a single special political and trust relationship History shows that many Native groups formal government-to-government

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71310 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

relationship with the United States islands, over a three-week period. These proposed and final rules. As the Federal would be established. public meetings provided opportunities agency with primary jurisdiction over for extensive comment from the and subject-matter expertise on Native (n) Other community, resulting in over 40 hours Hawaiian affairs, the Department (1) Comment: Some commenters of testimony. The Department met with reviewed the sources cited in the opposed the proposed rule because a a range of Native Hawaiian community proposed rule and determined that they group of Native Hawaiians or, as they organizations in Hawaii for educational were sufficiently reliable before citing assert, the majority of Native Hawaiians, outreach during the same period. The them. In response to this comment, do not support such an action. Department also conducted five however, the Department welcomed Response: The Department is aware consultations on the U.S. mainland additional information from that some in the Native Hawaiian where many Native Hawaiians offered commenters, reviewed commenters’ community do not support comment on the ANPRM, and accepted suggested sources, and included new reestablishment of a formal government- invitations from mainland-based Native citations to supplement the final rule. to-government relationship. Others in Hawaiian organizations to participate in With regard to 25 CFR part 83, the the Native Hawaiian community, forums regarding the ANPRM. Ninth Circuit concluded that the however, urge the Department to create Based on the comprehensive input regulations for Federal acknowledgment the administrative procedure and received on the ANPRM, the of tribes in the continental United States criteria proposed in the NPRM and Department drafted the proposed rule do not apply to Native Hawaiians. support such action. While there may be that was published in October 2015. Kahawaiolaa v. Norton, 386 F.3d at differences of opinion on the issue, the Following publication of the proposed 1274 (citing 25 CFR 83.3 (2004), community’s views may change over rule, the Department further consulted restricting application of part 83 to time, and most importantly, the rule with the public and the Native ‘‘those indigenous groups indigenous to would apply only if the Native Hawaiian community through four the continental United States’’). In Hawaiian community reorganizes their teleconferences and produced a video upholding part 83’s express geographic government and formally submits a that explained its provisions, available limitation, the Ninth Circuit concluded request to reestablish a formal at https://www.doi.gov/hawaiian/ that there was a rational basis for the government-to-government relationship procedures. The Department received Department to distinguish between with the United States. Therefore, the thousands of written comments, which Native Hawaiians and tribes in the Department determined that it would be it considered closely in preparing the continental United States, given the appropriate to finalize the rule in order final rule as noted in Section (IV)(A). history of separate Congressional to give the community notice of what (3) Comment: A commenter stated enactments regarding the two groups the Secretary would require if at some that the rule relies on the erroneous and the unique history of Hawaii. Id. at point in the future there is broad-based assertion that the population of HHCA 1283. The court expressed a preference community support for a reorganized Native Hawaiians is declining. for the Department to apply its expertise Native Hawaiian government that seeks Response: Nothing in the proposed or to determine whether the United States to reestablish a formal government-to- final rule rests on any assumption about should relate to the Native Hawaiian government relationship. whether the total number of HHCA community ‘‘on a government-to- (2) Comment: One commenter Native Hawaiians is decreasing or government basis.’’ Id. But unlike a part expressed concern that the proposed increasing. The preamble to the rule was drafted without input from the proposed rule noted that the ratio of 83 petitioner, the Native Hawaiian Native Hawaiian community and that HHCA Native Hawaiians to all Native community has already been no ‘‘meaningful consultation’’ occurred Hawaiians likely is declining over time, ‘‘acknowledged’’ or ‘‘recognized’’ by during the comment period. as the general Native Hawaiian Congress in over 150 enactments. Response: The proposed rule was the population is increasing. Any Accordingly, this rule establishes a product of extensive consultations with fluctuation in population, however, is process for determining how (not the Native Hawaiian community, not a valid basis to abandon this whether) a representative sovereign beginning with the ANPRM issued in rulemaking, as there remains a sizable government of the Native Hawaiian June 2014. Native Hawaiian community that may community can relate to the United As discussed in Section (V), the ultimately choose to reorganize its States on a formal government-to- ANPRM specifically solicited comments government. Furthermore, there is great government basis, in addition to the through a series of questions relating to variety in the population levels of existing special political and trust whether the Department should assist federally-recognized tribes in the relationship. See 80 FR at 59122. the Native Hawaiian community in continental United States. (2) Section-by-Section Response to reorganizing its government and (4) Comment: Some commenters Comment whether the Department should take criticized the proposed rule’s reliance administrative action to facilitate the on certain sources documenting the (a) Section 50.1—Purpose reestablishment of a government-to- history of relations between the United (1) Comment: A commenter suggested government relationship with the Native States and Native Hawaiians. One adding an additional purpose for the Hawaiian community. The issuance of commenter suggested that these sources rule: ‘‘To more effectively implement an ANPRM is not required by statute, are insufficient historical evidence and administer—‘(c) Native Hawaiians’ and it is an option that Federal agencies compared to what must be produced exercise of their inherent sovereignty often determine is not necessary to under 25 CFR part 83, the procedures and right to self-determination.’ ’’ pursue. The Department determined, for Federal acknowledgment of Indian Response: The Department agrees however, that issuing an ANPRM would tribes. with the substance of this comment and be a vital first step in gathering diverse Response: The Department relies on revised the purpose section of the rule. and informed input from the Native Federal statutes, Congressional The rule identifies that one of its Hawaiian community itself. To that end, preambles to the findings, case law and purposes is to provide the Native the Department held 15 public meetings independent research in setting out Hawaiian community the opportunity to in Hawaii, divided among the major relevant historical events in the more effectively exercise its inherent

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00034 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 71311

sovereignty and exercise self- Native Hawaiian government although reflect the will of the Native Hawaiian determination. that government may recognize political community as a whole through a (2) Comment: One commenter noted subdivisions based on this history or process that is free and fair. that the listed purposes of the rule other distinctions within the (c) Section 50. 4—Definitions (§ 50.1(a), (b)) are inadequate and that community consistent with Federal law. the Department should indicate how the See response to comment (f)(2). (1) Comment: A number of rule will improve Federal (2) Comment: One commenter commenters claimed that by defining implementation of existing Native suggested that the final rule should the term ‘‘Native Hawaiian’’ consistent Hawaiian benefits. define the scope of or clarify a political with past Congressional usage of the Response: The Department made no subdivision’s ‘‘limited powers’’ in term, the Department potentially changes to the rule in response to this § 50.3. undermines attempts by the Native comment. As stated in the preamble, Response: The Department made no Hawaiian community to identify their strong Native governments are critical to changes to the rule in response to this own membership. exercising inherent sovereign powers, comment. By definition, any political Response: Congress has already preserving Native culture, and subdivision provided for in the established a special political and trust sustaining Native communities. A governing document would not be relationship with the Native Hawaiian unified, reorganized Native Hawaiian independent of the Native Hawaiian community. Accordingly, in this government could provide a formal, Governing Entity and thus would have rulemaking the Department applies direct link on a government-to- only governmental authorities derived existing definitions Congress has government basis between the Native from the larger entity, i.e., ‘‘limited adopted in establishing this Hawaiian community as a whole and powers.’’ The scope of those ‘‘limited relationship. The Department recognizes the United States. powers’’ would be determined by the and supports the community’s interest (3) Comment: A commenter suggested Native Hawaiian community and in self-governance, and notes that any adding an additional purpose for the defined in the governing document. governing document that the rule that describes the HHCA Native (3) Comment: One commenter community adopts will appropriately Hawaiian community as having its own suggested revising the proposed rule to include membership criteria that reflect right to self-determination and land use. require that the Native Hawaiian the community’s own definition of its Response: The Department made no governing document include a provision membership consistent with § 50.13(f). changes to the rule in response to this establishing a political subdivision (2) Comment: A commenter suggested comment because the Department will limited to HHCA Native Hawaiians revising the definition of ‘‘HHCA- only reestablish a formal government-to- ‘‘with the express purpose of managing eligible Native Hawaiian’’ to parallel the government relationship with a single the federal and state relationships definition of ‘‘native Hawaiian’’ under Native Hawaiian government in order to involved in the implementation of the HHCA sec. 201(a)(7), reasoning that be consistent with Congress’s statutory HHCA and the HHLRA.’’ ‘‘HHCA-eligible Native Hawaiian’’ is treatment of Native Hawaiians. See Response: The Department made no ‘‘overly complicated’’ and could cause response to comment (m)(18). changes to the proposed rule in confusion in the community, among response to this comment. The (b) Section 50.3—Political Subdivisions other reasons. Department respects a Native Hawaiian Response: The Department amended (1) Comment: Commenters suggested government’s inherent authority to the definition of ‘‘HHCA-eligible Native amending the rule to provide for more exercise self-determination and self- Hawaiian’’ in the final rule to more than one Native Hawaiian government governance by developing a governing clearly reflect the definition of ‘‘native that could seek a government-to- document that best suits its needs and Hawaiian’’ under the HHCA, as government relationship with the those of its citizenry. The proposed rule suggested. And for simplicity, the United States. They assert that allowing accordingly permitted the Secretary to Department changed the term to ‘‘HHCA multiple Native Hawaiian governments reestablish a government-to-government Native Hawaiian.’’ would more accurately reflect the relationship with a single Native (3) Comment: A commenter notes that composition of the Native Hawaiian Hawaiian government that may include the definition of HHCA Native Hawaiian community, particularly HHCA Native political subdivisions based on island or ‘‘seems to disallow descent by out-of- Hawaiians who already have a special other geographic, historical, or cultural wedlock birth or claiming a different relationship with the United States ties out of respect for the Native father than your mother’s husband,’’ as under the HHCA. Similarly, Hawaiian community’s unique history well as descent by adoption or from commenters suggested amending the of self-governance prior to and during outside the Native Hawaiian rule to allow homestead associations or the Kingdom of Hawaii. If HHCA Native community. mokupuni (island-wide councils) to Hawaiians determine that their interests Response: The Department made no seek formal relationships with the are best served by participating in a changes to the rule in response to this United States. Native Hawaiian government through a comment. Nothing in the definition of Response: The Department made no political subdivision with specific ‘‘HHCA Native Hawaiian’’ requires a changes to the rule in response to this authorities, they may advocate for such marriage certificate or would preclude comment. The Department appreciates a requirement during development of an out-of-wedlock child from qualifying that the Native Hawaiian community the community’s governing document. If under the definition. In contrast, a non- has a rich history of self-governance the governing document adopted by the Native Hawaiian child adopted within both as geographically defined community as a whole provides specific the community would not be eligible to chiefdoms and as a unified government authorities to political subdivisions participate in the ratification under one Native Hawaiian monarch. defined in a fair and reasonable manner, referendum. See § 50.13; response to Congress, however, has dealt with the Department will respect that grant of comment (c)(1); (i)(3). Native Hawaiians as a single authorities. The Department expects (4) Comment: A commenter requested community. As a result, the Department that HHCA Native Hawaiians will play that the Department add ‘‘which was will reestablish a government-to- a key role in developing the governing not repealed and remains in effect with government relationship with a single document, which must be ratified to the elements of both Federal and State

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71312 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

law’’ to the definition of ‘‘HHCA’’ in the Hawaiian lessee would not meet these 201(a)(7). Notably, these amendments definitions section of subpart C in order definitions. do not expand the definition of ‘‘native to clarify that this law was not repealed (8) Comment: One commenter Hawaiian’’ in HHCA sec. 201(a)(7), and two years after Hawaii became a state. expressed concern that the proposed only permit certain individuals to Response: The Department agrees that rule defines ‘‘Native Hawaiian’’ in the receive leases through successorship or the HHCA remains in effect and has same terms the Supreme Court found to transfer. Further, Congress in enacting elements of both Federal and State law. be racial in Rice v. Cayetano, 528 U.S. the HHLRA, defined ‘‘beneficiary’’ in It is unnecessary to include clarifying 495 (2000). Numerous commenters terms of the HHCA definition of ‘‘native language to that effect in the final rule. stated, more generally, that the Hawaiian’’ without reference to these (5) Comment: A commenter requested Department’s proposed action was transfer and successorship amendments. that the Department add definitions for unconstitutional and violated the Equal Congress also provided that the the terms ‘‘Secretary,’’ ‘‘Rehabilitation Protection Clause of the U.S. Department ‘‘advance the interest of the of native Hawaiians’’ and ‘‘State.’’ Constitution. beneficiaries’’ in administering the Response: The Department made no Response: The Department disagrees HHLRA and HHCA. The Department changes to the definition of Secretary. that it defines ‘‘Native Hawaiian’’ in therefore concludes that the HHCA The Department chose not to define racial terms. Rather, it defines ‘‘Native definition in sec. 201(a)(7), as originally ‘‘rehabilitation of Native Hawaiians’’ Hawaiian’’ consistent with the special enacted, remains the controlling because the term is not used in the rule political and trust relationship Congress Congressional definition for purposes of and is outside of the scope of the acknowledged and recognized in over this rulemaking. rulemaking. The Department added a 150 statutes. The final rule sets out (10) Comment: A commenter definition of ‘‘State.’’ procedures to reestablish a formal suggested that in lieu of eliminating the government-to-government relationship (6) Comment: A commenter asked U.S. citizenship requirement, the with a distinct indigenous political whether the term ‘‘Native Hawaiian Department could consider amending community recognized by Congress, and community’’ refers to ‘‘the Hawaiian the definition in § 50.4 to read that therefore does not violate the Equal Nation’’ as defined to mean ‘‘a large Native Hawaiians must be ‘‘eligible to Protection Clause of the U.S. aggregate of people united by common be considered within the Citizenship Constitution for the same reasons that clause of the U.S. Constitution.’’ The descent, history, culture, or language the Supreme Court found provisions of commenter stated that this amendment inhabiting a particular country or Title 25 of the United States Code would allow the Native Hawaiian territory.’’ relating to Indians and Indian tribes government to include individuals who Response: The term ‘‘Hawaiian constitutional in Morton v. Mancari, 417 may have reasonable concern about Nation’’ has a variety of different U.S. at 554 (‘‘The preference, as applied, being classified as a U.S. citizen, given meanings and the Department is not is granted to Indians not as a discrete the history of the overthrow, but who aware of any single, authoritative racial group, but, rather, as members of would otherwise be eligible for such definition of that term. The term quasi-sovereign tribal entities whose status under the Constitution. ‘‘Native Hawaiian community’’ is lives and activities are governed by the Response: The Department eliminated defined in the final rule as ‘‘the distinct BIA in a unique fashion.’’). The rule is the U.S. citizenship requirement from Native Hawaiian indigenous political distinguishable from the provisions the rule as unnecessary and inconsistent community that Congress, exercising its found unconstitutional in Rice v. with many Federal statutes concerning plenary power over Native American Cayetano. In Rice, the Court expressly Native Hawaiians. affairs, has recognized and with which recognized that Mancari and its progeny (d) Section 50.10—Elements of a Congress has implemented a special authorize distinct treatment of tribes Request political and trust relationship.’’ The and their members. 528 U.S. at 518–19. term ‘‘Native Hawaiian community’’ (9) Comment: Several commenters (1) Comment: A commenter suggested includes the entire community noted that the proposed definition of that the final rule permit an appointed recognized by Congress and excludes all ‘‘HHCA-eligible Native Hawaiian’’ does interim Native Hawaiian governing individuals outside of that community. not include individuals who obtained body to submit a request for (7) Comment: One commenter was their homestead leases through either reestablishment of a formal government- concerned that the proposed rule Section 208 or 209 of the HHCA, that is, to-government relationship, noting that indicated that individuals with through valid successorship or transfer ‘‘Federal law and policy respects the leaseholds on Hawaiian home lands pursuant to federally approved rights of Native people in determining were, by definition, considered ‘‘Native amendments to the HHCA. their own political priorities.’’ Others Hawaiian,’’ and that such a definition Response: The Department made no agreed and suggested such a governing was problematic because some changes to the rule in response to these body could additionally assist in individuals have Hawaiian home land comments. The State proposed an organizing the organic activities of the leaseholds because they lived on lands amendment to the HHCA to allow reorganized government. that were subject to the Hawaiian certain relatives of HHCA lessees to Response: The Department made no Homes Commission Act. In short, these receive a lease through successorship or changes to the rule in response to this individuals became lessees simply transfer; and Congress approved that comment. Section 50.10(f)–(g) requires because of the location of their ancestral amendment, making it law. In general, that an officer of the Native Hawaiian homestead, not due to their ancestry. the amendment permits a homestead government submit and certify a duly Examples included lands that currently lessee to designate a husband, wife, enacted resolution of the governing make up the Papakolea community child, or grandchild who is at least one- body requesting a formal government-to- (including Papakolea, Kewalo, and quarter Native Hawaiian ancestry to government relationship. This provision Auwailimu). receive a lease through succession or presupposes that government officers Response: Ancestry is a crucial transfer. Congress also approved would be elected and seated before a component to the definitions of ‘‘Native amendments to permit succession to request to reestablish a formal Hawaiian’’ and ‘‘HHCA Native certain others who meet the definition government-to-government relationship Hawaiian’’ in the rule, and a non-Native of ‘‘native Hawaiian’’ in HHCA sec. could be ‘‘duly’’ enacted and submitted

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00036 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 71313

under the rule. To ensure that it is the the Native Hawaiian community to seek information,’’ among other concerns, will of the Native Hawaiian community guidance as to State law from DHHL objected to being identified as a to present a request to reestablish a appropriate State officials and other source to demonstrate ‘‘HHCA Native formal government-to-government non-Federal sources. Hawaiian’’ status in the proposed rule at relationship, the requester must be an § 50.12(a)(1)(i) and (a)(2)(i). (f) Section 50.12—Documents That elected governing body, not an Response: The proposed rule did not Demonstrate who Participates in appointed one. intend to burden or assign a role for (2) Comment: A commenter noted that Ratification Referendum DHHL in the verification process, and because elections for government offices (1) Comment: One commenter nothing in the rule mandates such would occur prior to submission of a suggested removing proposed § 50.12(b) involvement. For instance, DHHL may request to the Department, those to accommodate Native Hawaiians who be willing to certify to an individual elections seemed ‘‘premature’’ since the object to State-led efforts to compile a that he or she is a Native Hawaiian Department could reject the governing roll of Native Hawaiians, such as the lessee under HHCA sec. 201(a)(7), but document that sets out the elections Kanaiolowalu, to ‘‘encourage a more fair the rule does not require DHHL to do so. process and procedures. and inclusive referendum for Native Individuals who are enumerated on a Response: The Department made no Hawaiians of all political views.’’ By DHHL roll or list as HHCA-eligible changes to the proposed rule in contrast, another commenter suggested should have some kind of response to this comment. As stated amending this provision of the proposed documentation from DHHL indicating below, the Department is committed to rule to specify the NHRC as responsible their status under HHCA sec. 201(a)(7) providing technical assistance at the for compiling and certifying the roll. and such documents are sufficient proof request of the Native Hawaiian Response: The Department revised of their status as ‘‘HHCA Native community. In the event the Department § 50.12 to make clear that the Native Hawaiians’’ without further does not accept a governing document Hawaiian community must develop its involvement by DHHL. Further, the as a basis for a formal government-to- own voter list but may rely on a roll of Department sees no reason to require government relationship, the elected Native Hawaiians prepared by others, such individuals to resubmit ancestry officials’ status as officers would provided certain conditions are met. documentation that DHHL previously presumptively be unaffected, however, Since it is the Native Hawaiian found acceptable to those compiling the the text of the governing document community’s voter list, the Department list of eligible voters. The Department would ultimately determine if the rejected the suggestion that the final also finds that persons who meet the election of officers was premature. rule place responsibility for carrying out definition of ‘‘native Hawaiian’’ in Similarly, if the Secretary denies a the conditions set forth in § 50.12 on the HHCA sec. 201(a)(7) should be request to reestablish a formal NHRC. permitted to document such status by government-to-government relationship, (3) Comment: To accommodate Native using other records or documentation that decision would not affect the Hawaiians who lack traditional ‘‘paper’’ demonstrating such eligibility, see final authority of the governing document documentation of their status, one rule § 50.12(c), even if they have not within the community. commenter recommended enhancing applied to DHHL or their application the rule’s criteria for demonstrating has not been acted upon by DHHL. (e) Section 50.11—Process for Drafting Native Hawaiian and HHCA Native Finally, as to DHHL’s concern about Governing Document Hawaiian status for ratification purposes collateral effects on its certification (1) Comment: Commenters suggested to include ‘‘verification by kupuna processes, a determination by the Native amending the rule to provide the criteria (elders) or kamaaina (long term Hawaiian community that an individual or types of evidence that the Secretary community residents)’’ which some is an ‘‘HHCA Native Hawaiian’’ for will consider in a finding that the Federal laws currently provide. purposes of compliance with this rule minimum standards for demonstrating Response: The Department made would not have any collateral effect on ‘‘meaningful input’’ from changes to § 50.12 to enhance the ability eligibility determinations made by ‘‘representative segments of the Native of individuals who may not have DHHL for its own purposes under its Hawaiian community’’ were met. traditional documentation to document own processes, which may rely on a Response: The Department made no descent. It is for the Native Hawaiian distinct methodology or distinct changes to the rule in response to this community to determine in the first documentation standards. comment. The Native Hawaiian instance whether this commenter’s community itself is in the best position suggestions should be adopted as (g) Section 50.13—Contents of to determine how to obtain and ‘‘[o]ther similarly reliable means’’ under Governing Documents implement ‘‘meaningful input’’ from its § 50.12(b)(5) and (c)(4), and the (1) Comment: Commenters objected to diverse membership. The Department Department would expect to give the proposed rule’s requirement anticipates deferring to reasonable deference to the community’s judgment. excluding non-Native Hawaiians from approaches adopted by the community (4) Comment: The DHHL expressed membership. They expressed their to implement this standard. concern that the integrity of its belief that the Native Hawaiian (2) Comment: A commenter asked processes for certifying eligibility for government should have the whether the Department would consult HHCA programs and benefits could be opportunity to decide whether to with the Native Hawaiian government negatively impacted if alternative include non-Native Hawaiians in the on laws or policies it proposed for methods for certification of ‘‘HHCA- formulation of its governing documents. enactment in order to determine eligible Native Hawaiian’’ status are Response: The Department made no whether they could conflict with State accepted as proposed in § 50.12(a)(2)(ii). changes to the rule in response to this or Federal law. Moreover, citing ‘‘significant comment. Federal law requires a Response: The Department is willing administrative burden’’ and its demonstration of Native ancestry to be to provide technical assistance to ‘‘responsibility and . . . obligation to eligible for membership. See response to facilitate compliance with the final rule lessees, wait-listers, and applicants to comment (i)(3). and with other Federal law, upon maintain the confidentiality and (2) Comment: A commenter suggested request for assistance, but encourages security of their personally identifiable either eliminating § 50.13(j)’s

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71314 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

requirement that the Native Hawaiian government-to-government relationship referendum and elections for public governing document ‘‘[n]ot contain has been reestablished. office were ‘‘conducted in a manner not provisions contrary to Federal law’’ or contrary to Federal law’’ be revised to (h) Section 50.14—Ratification amending it to read: ‘‘Not contain refer to ‘‘then established Federal law’’ Referendum provisions contrary to current Federal because of the possibility that Federal law’’ (emphasis added). (1) Comment: One commenter law would change at some point Response: The Department made no suggested adding a provision requiring following the ratification referendum. changes to the rule in response to this verified Native Hawaiians and HHCA Response: The Department notes that comment. The ordinary reading of Native Hawaiians to ‘‘indicate[] a Federal law imposes fairly few § 50.13(j) is that the governing willingness to participate in the limitations on a referendum or election document must comply with then- referendum by enrolling on the conducted by a Native sovereign. The applicable Federal law. The comment is referendum voter list acknowledging Voting Rights Act does not apply to correct, however, in noting that Federal U.S. citizenship and the Native status such elections, for example. See Akina law can change over time, and the result recognized by Congress. A willingness v. Hawaii, 141 F. Supp. 3d 1106, 1125– may be to broaden or narrow the scope to participate, regardless of a vote for or 26 (D. Haw. 2015); Gardner v. Ute Tribal of Native governments’ ability to against ratification, is a key baseline Court Chief Judge, 36 Fed. App’x 927, exercise their inherent sovereign criteria that should be included’’ in the 928 (10th Cir. 2002); Cruz v. Ysleta Del authorities, including authorities final rule. Others echoed the substance Sur Tribal Council, 842 F. Supp. 934, identified in their governing documents. of this comment requiring that the voter 935 (W.D. Tex. 1993). The reference to See United States v. Lara, 541 U.S. 193 list be created through an ‘‘opt-in’’ Federal law may therefore have a fairly (2004). Thus, if a governing document process. limited application. Moreover, the Response: The Department made no contains a provision that may not be Department believes that the ordinary changes to the rule in response to these exercised because it is inconsistent with reading of this provision is that the comments. The proposed and final rules Federal law, that provision will not referendum and election must comply provide that the voter list exclude any necessarily render that document with then-applicable Federal law. The individual who requests to be removed, ‘‘contrary to Federal law’’ for purposes Department accordingly believes that no which can be characterized as the of this section. The result instead would revision to this provision of the rule text ability to ‘‘opt-out.’’ Whether ‘‘opt-in’’ be that the provision will not be is necessary, as this is the most natural or ‘‘opt-out,’’ each process ensures that enforceable. interpretation of the existing language. individuals are empowered to exclude (3) Comment: One commenter asked themselves from the list. The Native (j) Section 50.21—Technical Assistance for guidance on the meaning of Hawaiian community, however, may Comment: Commenters requested that § 50.13(b), which requires the Native not impose additional criteria, as the Department be required to provide Hawaiian governing document to suggested by the commenter, which technical assistance on all aspects of the ‘‘prescribe the manner in which the could result in excluding individuals rule, from drafting of organic documents government exercises its sovereign recognized by Congress as part of the to compliance with various standards powers.’’ Native Hawaiian community. articulated in the proposed rule, and Response: This language is intended (2) Comment: One commenter that such technical assistance include to refer to a governing document’s observed that while the proposed rule Federal grants. enumeration of powers of the respective requires a written narrative of the Native Response: The Department made no branches of government and of officials, Hawaiian government’s ratification changes to the rule in response to this and establishment of the processes by process and procedures, there is no comment. The Department is committed which governmental power is exercised. ‘‘real review’’ by the Department until to assisting the Native Hawaiian It is intended to be read together with after the ratification concludes. This community’s efforts to exercise self- § 50.13(c), which references commenter suggested the final rule determination and reorganize its establishment of ‘‘the institutions and include authority for the Native government, and therefore will provide structure of the government, and of its Hawaiian government to submit its technical assistance upon request of the political subdivisions (if any).’’ proposed ratification procedures for the Native Hawaiian community. (4) Comment: One commenter Department’s review prior to Regulations, however, cannot expressed the opinion that the implementation as an ‘‘intermediate independently authorize Federal grants; Department would be unable to step’’ that could potentially prevent statutory authority is required. The ‘‘enforce’’ the terms of the Native avoidable delay or disapproval of the Native Hawaiian community may seek Hawaiian Governing Entity’s initial request on procedural grounds. financial assistance from various governing document because the entity, Response: The Department made no funding sources. like an Indian tribe, would be able to changes to the rule in response to this (k) Section 50.30 to 50.32—Public amend this document without comment. Section 50.21 of the rule Comment/Deadline Extension Secretarial approval. authorizes technical assistance to Response: The Department made no facilitate compliance with the final rule (1) Comment: A few commenters changes to the rule in response to this and other Federal law upon request by stated that the 30-day public comment comment. § 50.13 provides minimum the Native Hawaiian community. period on a request submitted under the requirements for a governing document, Technical assistance could, for instance, proposed rule was insufficient for including that it must ‘‘[d]escribe the include providing Departmental substantive review of any request. These procedures for proposing and ratifying expertise related to the community’s commenters urged the Department to amendments to the governing ratification process and other technical increase the public comment period to document.’’ Section 50.13(i). Under this matters. 90 days. Others urged the Department to rule, the Department does not have a limit the number of days by which a responsibility to approve or disapprove (i) Section 50.16—Secretarial Criteria deadline may be extended and the amendments to the governing document Comment: One commenter requested number of times those deadline that are ratified after the formal that the requirement that the ratification extensions may be granted. These

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00038 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 71315

commenters specifically urged that (m) Section 50.44—Implementation of Hawaii meeting the definition of deadlines should only be extended by Government-to-Government ‘‘Indian country’’ and no authority to 30 or 60 days, and that deadlines should Relationship take land into trust, the Native Hawaiian only be extended once or twice. (1) Comment: Commenters requested Governing Entity will necessarily have Response: The Department agrees that that the final rule be amended by limited territorial authority in the more time for substantive review of any adding: ‘‘Nothing in this part explicitly absence of Congressional action to request submitted under this Part is or implicitly abrogates, affects, or establish such authority. (3) Comment: A commenter expressed warranted. The final rule allows 60 days impairs any claim or claims of the concern that the rule did not provide a for the public to submit any comments Native Hawaiian people under Federal ‘‘list of permitted powers’’ that the on the request and permits a single law or International law or affects the Native Hawaiian Governing Entity could extension by a maximum of 90 days for ability of the Native Hawaiian people or exercise, such as powers that federally- good cause. Similarly, the requester will their representatives to pursue such recognized Indian tribes in the have 60 days to respond to any claim or claims in Federal or continental United States exercise. comment or evidence, which may be International forums.’’ Similarly, other Response: The Native Hawaiian extended by up to 90 days for good commenters requested that the final rule Governing Entity may exercise all its cause. Accordingly, the amount of time include a provision stating that the rule inherent sovereign powers, and all the Department has for posting any itself shall not serve as a settlement of powers vested in it by Congress, subject comments received during this period is any such claims. to the limitations in its governing extended to a total of 20 days in Response: The Department made no document or established by Federal law. § 50.30(b). changes to the final rule in response to (4) Comment: One commenter stated (2) Comment: A commenter urged these comments. As stated above, this that the proposed rule’s restriction on limiting the Secretary to a maximum of rule does not address any existing Native Hawaiians’ eligibility for Federal 210 days to review any request, claims that the Native Hawaiian people, Indian programs, services, and benefits including any extensions granted. either individually or collectively, may would be unenforceable because the Others added that the Department assert for redress under Federal or Native Hawaiian Governing Entity should not be given complete discretion international law. All such claims are would be able to amend its initial to extend its own deadlines and that it outside the scope of this rulemaking, as governing document without Federal should be required to seek the also discussed above. approval just as federally-recognized requester’s consent prior to issuing an (2) Comment: Commenters suggest Indian tribes in the continental United extension to itself. Finally, commenters amending § 50.44(a) to make express States are able to do under 25 CFR part urged amendment of the proposed rule that the Native Hawaiian Governing 81. to mandate action within the allowable Entity will have the same privileges and Response: The Native Hawaiian timeframes so that the Secretarial immunities as federally-recognized Governing Entity may not alter review process is not ‘‘unduly delayed.’’ Indian tribes in the continental United Congress’s approach that distinguishes States. Another commenter suggested Response: The Department between programs, services, and amendments to the contrary, urging the appreciates the importance of timely benefits provided to federally- Department to eliminate language in the review of and action on a request. In recognized tribes in the continental rule that ‘‘may unduly imply that the response to the comments, the final rule United States and programs, services, Native Hawaiian Governing Entity must requires notice to the requester, and benefits provided to Native be exactly the same as an Indian tribe including an estimate of when the Hawaiians by amending its governing in all respects.’’ document after a government-to- decision will issue, if the Secretary is Response: Section 50.44(a) states that unable to act within 120 days. The government relationship is the Native Hawaiian Governing Entity reestablished. This rulemaking carefully Department made no further changes to would have the same inherent sovereign the rule in response to this comment. adheres to Congress’s separate treatment governmental authorities as do of federally-recognized tribes in the (l) Section 50.40—Secretary’s Decision federally-recognized tribes in the continental United States and the Native continental United States and the same Hawaiian community for purposes of Comment: Commenters urged that the government-to-government relationship funding programs, services, and final rule impose a limit to the under the U.S. Constitution and Federal benefits. Congress’s approach binds the Secretary’s decision-making time frame, law. Accordingly, the Native Hawaiian Department and the community. See and if the Secretary fails to act within Governing Entity would have the same response to comment (1)(g)(4). that time frame, the request should be inherent privileges and immunities as deemed approved. do federally-recognized tribes in the (C) Tribal Summary Impact Statement Response: The Department clarified continental United States. See response Consistent with sections 5(b)(2)(B) that the Secretary may request to comment (1)(m)(12). As to the and 5(c)(2) of Executive Order 13175, additional documentation and question whether the Native Hawaiian and because the Department consulted explanation from the requester and the Governing Entity is ‘‘exactly the same as with tribal officials in the continental public with respect to the material an Indian tribe in all respects,’’ the United States prior to publishing this submitted, including whether the Department responds that Congress rule, the Department seeks to assist request is consistent with this part. The systematically treats the Native tribal officials, and the public as a Department made no further changes to Hawaiian community separately from whole, by including in this preamble the rule in response to this comment. tribes in the continental United States. the three key elements of a tribal The significance of reestablishing a The Native Hawaiian Governing Entity summary impact statement. formal government-to-government will have the inherent sovereign Specifically, the preamble to this rule relationship requires an affirmative act governmental authorities of a tribe, (1) describes the extent of the by the Secretary, so that there can be no except to the extent that Federal law Department’s prior consultation with question about the status of that formal constrains those authorities. For tribal officials; (2) summarizes the relationship. example, because there is no land in nature of their concerns and the

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71316 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

Department’s position supporting the distinct program or set of programs, above, Congress provides a separate need to issue the rule; and (3) states the parallel to those that exist for other suite of programs and services targeted extent to which tribal officials’ concerns Native American communities. To the directly to Native Hawaiians, and not have been met. The ‘‘Public Meetings extent that Native Hawaiians are not through programs broadly applicable to and Tribal Consultations’’ section below eligible for certain programs under Indians. Congress thus makes plain that describes the Department’s prior current law, it follows that this Native Hawaiians receive a distinct set consultations. treatment reflects a conscious decision of Federal programs and services so that Comments regarding access to Federal by Congress. Moreover, because of the they are not eligible for general Indian programs, services, and benefits structure of many Federal programs, programs and services.9 available to federally-recognized Indian treating a Native Hawaiian Governing This unique provision of separate tribes: The Department received Entity or its members as eligible for programs and services removes Native comments strongly supporting Federal programs provided generally to Hawaiians from the scope of the Federal rulemaking to reestablish a formal federally-recognized Indian tribes in the Register list published under the List government-to-government relationship continental United States or their Act. Therefore, following any between the United States and the members could result in duplicative reestablishment of a formal government- Native Hawaiian community. Comments services or benefits. to-government relationship with the expressed concern about the rule’s Congress’s systematic provision of United States, the Native Hawaiian potential impact, if any, on Federal separate benefits for Native Hawaiians community would not be recognized by Indian programs, services, and gives rise to a presumption that the Secretary ‘‘to be eligible for the benefits—that is, federally funded or Congress did not intend that Native special programs and services provided authorized special programs, services, Hawaiians would also receive by the United States to Indians because and benefits provided by Federal essentially duplicative programs, of their status as Indians,’’ 25 U.S.C. agencies (such as the Bureau of Indian services, and benefits through programs 479a–1(a), and the Native Hawaiian Affairs and the Indian Health Service) to available to tribes in the continental Governing Entity would not appear on federally-recognized Indian tribes in the United States.7 The Department the list compiled under the List Act. continental United States. Comments accordingly concludes that, absent Section 50.44(c)–(d) of the final rule expressed an understanding that Native Congressional action that provides similarly implements Congress’s Hawaiians are ineligible for Federal Federal programs directed towards longstanding distinction between Native Indian programs and services absent Indians to include Native Hawaiians, Hawaiian programs and services and express Congressional declarations to the Native Hawaiian community cannot the contrary, and recommended that be treated as ‘‘eligible for the special remove any doubt that Alaska Natives were existing and future programs, services, included within the scope of that term. Indeed, the programs and services provided by the definition makes clear that an Alaska Native tribe and benefits for a reorganized Native United States to Indians because of their could be acknowledged by the Secretary ‘‘to exist Hawaiian government remain separate status as Indians.’’ 25 U.S.C. 479a–1(a). as an Indian tribe.’’ And the use of the term from programs and services dedicated to ‘‘Indian’’ in section 479a–1(a) confirms that the The distinction between Federal term was being used broadly and must necessarily tribes in the continental United States. Native Hawaiian programs and services Response: The Department agrees include Alaska Natives. 25 U.S.C. 479a–1(a) and Federal Indian programs and (instructing the Secretary to publish a list of ‘‘all with these comments. Native Hawaiians services is apparent in the List Act, Indian tribes which the Secretary recognizes to be are ineligible for Federal Indian eligible for the special programs and services which requires the Secretary to publish programs and services absent express provided by the United States to Indians because in the Federal Register a list of those Congressional declarations to the of their status as Indians’’ (emphasis added)); see Indian tribes that ‘‘the Secretary also 25 U.S.C. 1212–1215 (provisions enacted contrary. recognizes to be eligible for the special together with the List Act that reaffirmed the When creating programs, services, eligibility of an Alaska Native tribe, and which refer and benefits, Congress systematically programs and services provided by the to a ‘‘federally recognized Indian tribe’’ and an distinguishes between programs, United States to Indians because of their ‘‘Alaska Native tribe’’ interchangeably); H.R. Rep. services, and benefits to Indian tribes in status as Indians.’’ 25 U.S.C. 479a–1(a). No. 103–781 at 5 (noting that the List Act ‘‘requires A comparison of the definition of that the Secretary continue the current policy of the continental United States and those including Alaska Native entities on the list of provided to the Native Hawaiian ‘‘Indian tribe’’ in 25 U.S.C. 479a(2), with federally-recognized Indian tribes which are eligible community. Congress enacted programs the narrower specification of which to receive services’’). and services expressly and specifically tribes may appear on the list itself, see 9 Even before adoption of the List Act, the 25 U.S.C. 479a–1(a), indicates that the Department maintained a list of tribes that were for the Native Hawaiian community that generally eligible for BIA programs and services. are in many respects parallel and reference to ‘‘programs and services’’ in See Indian Tribal Entities That Have a Government- analogous to—but distinct from—the section 479a–1(a) is limited to those to-Government Relationship with the United States, programs and services enacted for Federal programs and services available 44 FR 7235 (1979). The List Act ratified and to tribes generally, i.e., those in the codified the process for preparing that list. Notably, federally-recognized tribes in the 25 CFR part 83, ‘‘Procedures for Federal continental United States. Federal continental United States, as opposed to Acknowledgment of Indian Tribes,’’ contains a Native Hawaiian programs and services Federal programs and services provision stating that its purpose is to ‘‘determine are provided to Native Hawaiians as an identified for specific tribes or whether a petitioner is an Indian tribe eligible for indigenous Native Hawaiian community communities, such as the Native the special programs and services provided by the 8 United States to Indians because of their status as under the Indian affairs power, just as Hawaiian community. As explained Indians.’’ 25 CFR 83.2. Hawaii is outside the scope Federal Indian programs and services of part 83, which further demonstrates the 7 are provided to Indian tribes in the Cf. Kahawaiolaa, 386 F.3d at 1283 (noting Department’s longstanding conclusion that Native Congress’s intent to treat Native Hawaiians and Hawaiians fall outside the scope of these general continental United States under the members of Indian tribes ‘‘differently’’ and programs and services. See 25 CFR 83.3 (stating that Indian affairs power. reasoning that allowing Native Hawaiians to apply ‘‘this part applies only to indigenous entities that In some instances, Congress expressly for Federal recognition under part 83 could ‘‘allow are not federally recognized Indian tribes’’); 25 CFR provided for Native Hawaiians to native Hawaiians to obtain greater benefits than the 83.1 (defining ‘‘indigenous’’ to mean ‘‘native to the members of all American Indian tribes’’). continental United States in that at least part of the receive benefits as part of a program 8 The definition in 25 U.S.C. 479a(2) specifies that petitioner’s territory at the time of first sustained provided to Native Americans generally; the term ‘‘Indian tribe’’ includes an ‘‘Indian or contact extended into what is now the continental in others, Congress has provided a Alaska Native tribe’’ because Congress wished to United States’’).

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00040 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 71317

general Indian programs and services for United States. Unless the statute’s text, in Hawaii, the Department held five tribes in the continental United States.10 structure, purpose, or legislative history U.S. mainland regional consultations in The List Act’s central purpose is to is to the contrary, these statutes would Indian country, supplemented with provide ‘‘various departments and cover the Native Hawaiian Governing targeted community outreach in agencies of the United States’’ with an Entity. See, e.g., 25 U.S.C. 1301(1)–(2) locations with significant Native ‘‘accurate, regularly updated, and (Indian Civil Rights Act definitions) Hawaiian populations. To build on the regularly published’’ list that they could (covering ‘‘any tribe, band, or other extensive record gathered during the use ‘‘to determine the eligibility of group of Indians subject to the ANPRM, in October and November certain groups [in the continental jurisdiction of the United States and 2015, the Department held four three- United States] to receive services from recognized as possessing powers of self- hour teleconferences on the NPRM: two the United States.’’ List Act findings, government,’’ which include ‘‘all teleconferences that were open to the sec. 103(7) (codified at 25 U.S.C. 479a governmental powers possessed by an public, one specifically targeted to note). The List Act is mandatory and Indian tribe, executive, legislative, and Native Hawaiian organizations, and one prescriptive, stating that the Secretary judicial, and all offices, bodies, and specifically targeted to tribal leaders. ‘‘shall publish’’ a list of ‘‘all Indian tribunals by and through which they are Transcripts from all public meetings tribes which the Secretary recognizes to executed’’); 25 U.S.C. 2801(6) (using the held during the ANPRM and NPRM be eligible for the special programs and same definition, in the law-enforcement stages are available in the online docket services provided by the United States context); 28 U.S.C. 1362 (providing as well as on the Department’s Web site to Indians because of their status as Federal-court jurisdiction over Federal (www.doi.gov/hawaiian). Indians.’’ 25 U.S.C. 479a–1(a) (emphasis claims ‘‘brought by any Indian tribe or (VI) Procedural Matters added); see also List Act findings, sec. band with a governing body duly 103(8). In enacting the List Act, recognized by the Secretary of the A. Regulatory Planning and Review Congress specifically sought to Interior’’). (Executive Orders 12866 and 13563) eliminate inconsistencies, to ensure For certain Federal statutes there may be additional indicators that particular Executive Order (E.O.) 12866 provides uniformity in the treatment of federally- that the Office of Information and recognized tribes in the continental provisions should or should not be available to the Native Hawaiian Regulatory Affairs (OIRA) at the Office United States, and to accord those tribes of Management and Budget (OMB) will and their membership access to the Governing Entity or its members. The Department’s interpretation of a Federal review all significant rules. OIRA same Federal programs and services. determined that this final rule is See H.R. Rep. No. 103–781. It follows statute providing programs and services to tribes and their members typically significant because it may raise novel that federally-recognized tribes in the legal or policy issues arising out of legal continental United States are all will turn on the statute’s definition of the term ‘‘Indian tribe,’’ but a clear mandates, the President’s priorities, or ‘‘eligible for the special programs and the principles set forth in the Executive services provided by the United States expression of Congressional intent will control. Also, a Federal agency Order. to Indians because of their status as E.O. 13563 reaffirms the principles of Indians,’’ and that the Secretary has no administering a statute will have authority to resolve any question that E.O. 12866 while calling for authority to exclude a federally- improvements in the Nation’s regulatory recognized tribe in the continental may arise as to the meaning of that statute and the scope of available system to promote predictability, to United States from the list compiled programs, services, and benefits. reduce uncertainty, and to use the best, under the List Act. This determination that the Native most innovative, and least burdensome The vast bulk of Federal Indian Hawaiian Governing Entity is not tools for achieving regulatory ends. The statutes providing programs and eligible for general Federal Indian Executive Order directs agencies to services expressly state that they cover programs, services, and benefits also consider regulatory approaches that only those Indian tribes that the comports with Congress’s express intent reduce burdens and maintain flexibility Secretary deems eligible for the special that the Department’s Assistant and freedom of choice for the public programs and services that the United Secretary for Policy, Management and where these approaches are relevant, States provides to Indians because of Budget (PMB), not the Assistant feasible, and consistent with regulatory their status as Indians. Such statutes Secretary for Indian Affairs, oversee objectives. E.O. 13563 emphasizes include the Indian Self-Determination Native Hawaiian matters, as stated in further that regulations must be based and Education Assistance Act the HHLRA, sec. 206, 109 Stat. 363. on the best available science and that (ISDEAA), 25 U.S.C. 450b(e). These the rulemaking process must allow for (V) Public Meetings and Tribal Federal Indian statutes do not currently public participation and an open Consultations cover the Native Hawaiian community, exchange of ideas. The Department nor would they cover that governing The Department held public meetings developed this final rule in a manner entity with which the United States to gather testimony at both the ANPRM consistent with these requirements. reestablishes the formal government-to- and proposed rule stages of this government relationship. rulemaking. In June and July 2014, staff B. Regulatory Flexibility Act Some Federal statutes, however, from the Departments of the Interior and The Department certifies that this extend to all Indian tribes without Justice traveled to Hawaii to conduct 15 final rule will not have a significant expressly stating that they cover only public meetings on the ANPRM across economic effect on a substantial number those Indian tribes that the Secretary the State. Hundreds of stakeholders and of small entities under the Regulatory deems eligible for the special programs interested parties attended sessions on Flexibility Act (5 U.S.C. 601 et seq.). and services that the United States the islands of Hawaii, Kauai, Lanai, Under the Regulatory Flexibility Act provides to Indians in the continental Maui, Molokai, and Oahu. Also during (as amended by the Small Business that time, staff conducted extensive, Regulatory Enforcement Fairness Act 10 See § 50.4 of the final rule defining the terms (SBREFA) of 1996; 5 U.S.C. 601 et seq.), ‘‘Federal Indian programs, services, and benefits’’ informal outreach with Native Hawaiian separately from ‘‘Federal Native Hawaiian organizations, groups, and community whenever a Federal agency is required programs, services, and benefits.’’ leaders. Following the public meetings to publish a notice of rulemaking for

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71318 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

any proposed or final rule, it must governments in the aggregate, or by the addressed them, where possible, in the prepare, and make available for public private sector, of $100 million or more final rule. comment, a regulatory flexibility in any one year. The rule’s requirements analysis that describes the effect of the will not cause a major increase in costs I. Paperwork Reduction Act rule on small entities (i.e., small or prices for consumers, individual This final rule does not require an businesses, small organizations, and industries, Federal, state, or local information collection from ten or more small government jurisdictions). government agencies, or geographic parties, and a submission under the However, no regulatory flexibility regions. Nor will this rule have Paperwork Reduction Act of 1995, 44 analysis is required if the head of an significant adverse effects on U.S.C. 3501 et seq., is not required. An agency, or his designee, certifies that the competition, employment, investment, OMB form 83–I is not required. rule will not have a significant productivity, innovation, or the ability economic impact on a substantial of U.S.-based enterprises to compete J. National Environmental Policy Act number of small entities. SBREFA with foreign-based enterprises. amended the Regulatory Flexibility Act This final rule does not constitute a to require Federal agencies to provide a D. Unfunded Mandates Reform Act major Federal action significantly statement of the factual basis for This final rule does not impose an affecting the quality of the human certifying that a rule will not have a unfunded mandate on state, local, or environment because it is of an significant economic impact on a tribal governments or the private sector administrative, technical, or procedural substantial number of small entities. of more than $100 million per year. The nature. See 43 CFR 46.210(i). No The Department certified that the rule does not have a significant or extraordinary circumstances exist that proposed rule to implement these unique effect on state, local, or tribal would require greater review under the changes to 43 CFR part 50 regulations governments or the private sector. A National Environmental Policy Act of would not have a significant economic statement containing the information 1969. impact on a substantial number of small required by the Unfunded Mandates K. Information Quality Act entities (80 FR 59113). The Department Reform Act (2 U.S.C. 1531 et seq.) is not did not receive any information during required. In developing this final rule we did the public comment period that changes not conduct or use a study, experiment, this certification. E. Takings (E.O. 12630) or survey requiring peer review under The Regulatory Flexibility Act, as Under the criteria in Executive Order the Information Quality Act (Pub. L. amended, requires that Federal agencies 12630, this final rule does not affect 106–554). evaluate the potential incremental individual property rights protected by impacts of rulemaking only on those L. Effects on the Energy Supply (E.O. the Fifth Amendment nor does it entities directly regulated by the 13211) involve a compensable ‘‘taking.’’ A rulemaking itself and, therefore, not on takings implications assessment indirectly regulated entities. If a This final rule is not a significant therefore is not required. reorganized Native Hawaiian energy action under the definition in government decides to seek a formal F. Federalism (E.O. 13132) Executive Order 13211. A Statement of government-to-government relationship Energy Effects is not required. This rule with the United States, the rule provides Under the criteria in Executive Order will not have a significant effect on the the requirements for submitting a 13132, this final rule has no substantial nation’s energy supply, distribution, or written request to the Secretary of the and direct effect on the States, on the use. relationship between the national Interior. The rule would directly affect List of Subjects in 43 CFR Part 50 any such Native Hawaiian government. government and the States, or on the A small governmental jurisdiction is the distribution of power and Administrative practice and government of a city, town, township, responsibilities among the various procedure, Indians—tribal government. village, school district, or special levels of government. A federalism district, with a population of less than implications assessment therefore is not For the reasons stated in the fifty thousand, unless the agency required. preamble, the Department of the Interior amends title 43 of the Code of Federal establishes a different definition that is G. Civil Justice Reform (E.O. 12988) appropriate to the activities of the Regulations by adding part 50 as set agency by notice and comment. See 5 This final rule complies with the forth below: U.S.C. 601(5). The Department has not requirements of Executive Order 12988. PART 50—PROCEDURES FOR established a different definition by Specifically, this rule has been reviewed REESTABLISHING A FORMAL notice and comment. Therefore, a to eliminate errors and ambiguity and GOVERNMENT-TO-GOVERNMENT Native Hawaiian government would not written to minimize litigation; and is RELATIONSHIP WITH THE NATIVE be considered a small entity under the written in clear language and contains HAWAIIAN COMMUNITY Regulatory Flexibility Act. See 5 U.S.C. clear legal standards. 601(6). No other small entities would be H. Consultation With Indian Tribes Sec. directly affected by the rule, thus no (E.O. 13175) small entities will be affected by this Subpart A—General Provisions rule. Under Executive Order 13175, the 50.1 What is the purpose of this part? Department held several consultation 50.2 How will reestablishment of this C. Small Business Regulatory sessions with federally-recognized tribes formal government-to-government Enforcement Fairness Act (SBREFA) in the continental United States. Details relationship occur? This final rule is not a major rule on these consultation sessions and on 50.3 May the Native Hawaiian community under 5 U.S.C. 804(2), the Small comments the Department received reorganize itself based on island or other Business Regulatory Enforcement from tribes and intertribal organizations geographic, historical, or cultural ties? Fairness Act. It will not result in the are described above. The Department 50.4 What definitions apply to terms used expenditure by state, local, or tribal considered each of those comments and in this part?

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00042 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 71319

Subpart B—Criteria for Reestablishing a (a) The Native Hawaiian community Indian tribe, or to its members, because Formal Government-to-Government to more effectively exercise its inherent of their status as Indians. Relationship sovereignty and self-determination; and Federal Native Hawaiian programs, 50.10 What are the required elements of a (b) The United States to more services, and benefits means any request to reestablish a formal effectively implement and administer: federally funded or authorized special government-to-government relationship program, service, or benefit provided by with the United States? (1) The special political and trust 50.11 What process is required in drafting relationship that exists between the the United States to a Native Hawaiian the governing document? United States and the Native Hawaiian government, its political subdivisions (if 50.12 What documentation is required to community, as recognized by Congress; any), its members, the Native Hawaiian demonstrate how the Native Hawaiian and community, Native Hawaiians, or community determined who could (2) The Federal programs, services, HHCA Native Hawaiians, because of participate in ratifying the governing and benefits that Congress created their status as Native Hawaiians. document? specifically for the Native Hawaiian Governing document means a written 50.13 What must be included in the document (e.g., constitution) embodying governing document? community (see, e.g., 12 U.S.C. 1715z– 50.14 What information about the 13b; 20 U.S.C. 80q et seq.; 20 U.S.C. a government’s fundamental and ratification referendum must be included 7511 et seq.; 25 U.S.C. 3001 et seq.; 25 organic law. in the request? U.S.C. 4221 et seq.; 42 U.S.C. 2991 et Hawaiian home lands means all lands 50.15 What information about the elections seq.; 42 U.S.C. 3057g et seq.; 42 U.S.C. given the status of Hawaiian home lands for government offices must be included 11701 et seq.; 54 U.S.C. 302706). under the HHCA (or corresponding in the request? provisions of the Constitution of the 50.16 What criteria will the Secretary apply § 50.2 How will reestablishment of this State of Hawaii), the HHLRA, or any when deciding whether to reestablish the formal government-to-government other Act of Congress, and all lands formal government-to-government relationship occur? relationship? acquired pursuant to the HHCA. A Native Hawaiian government HHCA means the Hawaiian Homes Subpart C—Process for Reestablishing a seeking to reestablish a formal Commission Act, 1920 (Act of July 9, Formal Government-to-Government government-to-government relationship 1921, 42 Stat. 108), as amended. Relationship with the United States under this part HHCA Native Hawaiian means a Submitting a Request must submit to the Secretary a request Native Hawaiian individual who meets 50.20 How may a request be submitted? as described in § 50.10. Reestablishment the definition of ‘‘native Hawaiian’’ in 50.21 Is the Department available to of a formal government-to-government HHCA sec. 201(a)(7). provide technical assistance? relationship will occur if the Secretary HHLRA means the Hawaiian Home grants the request as described in Public Comments and Responses to Public Lands Recovery Act (Act of November 2, Comments §§ 50.40 through 50.43. 1995, 109 Stat. 357), as amended. 50.30 What opportunity will the public § 50.3 May the Native Hawaiian community Native Hawaiian means any have to comment on a request? reorganize itself based on island or other individual who is a descendant of the 50.31 What opportunity will the requester geographic, historical, or cultural ties? aboriginal people who, prior to 1778, have to respond to comments? The Secretary will reestablish a occupied and exercised sovereignty in 50.32 May the deadlines in this part be the area that now constitutes the State extended? formal government-to-government relationship with only one sovereign of Hawaii. The Secretary’s Decision Native Hawaiian government, which Native Hawaiian community means 50.40 When will the Secretary issue a may include political subdivisions with the distinct Native Hawaiian indigenous decision? limited powers of self-governance political community that Congress, 50.41 What will the Secretary’s decision defined in the Native Hawaiian exercising its plenary power over Native include? government’s governing document. American affairs, has recognized and 50.42 When will the Secretary’s decision with which Congress has implemented take effect? § 50.4 What definitions apply to terms a special political and trust relationship. 50.43 What does it mean for the Secretary used in this part? Native Hawaiian Governing Entity to grant a request? means the Native Hawaiian 50.44 How will the formal government-to- As used in this part, the following government relationship between the terms have the meanings given in this community’s representative sovereign United States Government and the section: government with which the Secretary Native Hawaiian Governing Entity be Continental United States means the reestablishes a formal government-to- implemented? contiguous 48 states and Alaska. government relationship. Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9; 25 Department means the Department of Request means an express written U.S.C. 479a, 479a–1 (2015) (reclassified to 25 the Interior. submission to the Secretary asking for U.S.C. 5130, 5131 (2016)); 43 U.S.C. 1457; DHHL means the Department of recognition as the Native Hawaiian Pub. L. 67–34, 42 Stat. 108, as amended; Pub. Hawaiian Home Lands, or the agency or Governing Entity. L. 86–3, 73 Stat. 4; Pub. L. 103–150, 107 Stat. department of the State of Hawaii that Requester means the government that 1510; sec. 148, Pub. L. 108–199, 118 Stat. is responsible for administering the submits to the Secretary a request 445; 112 Departmental Manual 28. HHCA. seeking to be recognized as the Native Subpart A—General Provisions Federal Indian programs, services, Hawaiian Governing Entity. and benefits means any federally Secretary means the Secretary of the § 50.1 What is the purpose of this part? funded or authorized special program, Interior or that officer’s authorized This part sets forth the Department’s service, or benefit provided by the representative. administrative procedure and criteria United States to any Indian or Alaska Sponsor means an individual who for reestablishing a formal government- Native tribe, band, nation, pueblo, makes a sworn statement that another to-government relationship between the village, or community in the continental individual is: United States and the Native Hawaiian United States that the Secretary of the (1) A Native Hawaiian or an HHCA community that will allow: Interior acknowledges to exist as an Native Hawaiian; and

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71320 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

(2) The sponsor’s parent, child, § 50.12 What documentation is required to (1) Enumeration on a roll or other list sibling, grandparent, grandchild, aunt, demonstrate how the Native Hawaiian prepared by the State under State law, uncle, niece, nephew, or first cousin. community determined who could where enumeration is based on participate in ratifying the governing documentation that verifies Native State means the State of Hawaii, document? including its departments and agencies. Hawaiian descent; The written narrative thoroughly (2) Meeting the requirements of Sworn statement means a statement describing how the Native Hawaiian paragraph (c) of this section; based on personal knowledge and made community determined who could (3) A sworn statement by the potential under oath or affirmation which, if false, participate in ratifying the governing voter that he or she: is punishable under Federal or state document must explain how the Native (i) Is enumerated on a roll or other list law. Hawaiian community prepared its list of prepared by the State under State law, eligible voters consistent with paragraph Subpart B—Criteria for Reestablishing where enumeration is based on (a) of this section. The narrative must a Formal Government-to-Government documentation that verifies Native explain the processes the Native Relationship Hawaiian descent; Hawaiian community used to verify that (ii) Is identified as Native Hawaiian § 50.10 What are the required elements of the potential voters were Native (or some equivalent term) on a birth a request to reestablish a formal Hawaiians consistent with paragraph (b) certificate issued by a state or territory; government-to-government relationship of this section, and to verify which of (iii) Is identified as Native Hawaiian with the United States? those potential voters were also HHCA (or some equivalent term) in a Federal, A request must include the following Native Hawaiians, consistent with state, or territorial court order seven elements: paragraph (c) of this section, and were determining ancestry; (a) A written narrative with therefore eligible to vote. The narrative (iv) Can provide records documenting supporting documentation thoroughly must explain the processes, current or prior enrollment as a Native describing how the Native Hawaiian requirements, and conditions for use of Hawaiian in a Kamehameha Schools community drafted the governing any sworn statements and explain how program; or (v) Can provide records documenting document, as described in § 50.11; those processes, requirements, and conditions were reasonable and reliable generation-by-generation descent from a (b) A written narrative with for verifying Native Hawaiian descent. Native Hawaiian ancestor; supporting documentation thoroughly (a) Preparing the voter list for the (4) A sworn statement from a sponsor describing how the Native Hawaiian Ratification Referendum. The Native who meets the requirements of community determined who could Hawaiian community must prepare a paragraph (b)(1), (2), or (3) of this participate in ratifying the governing list of Native Hawaiians eligible to vote section that the potential voter is Native document, consistent with § 50.12; in the ratification referendum. Hawaiian; or (c) The duly ratified governing (1) The list of Native Hawaiians (5) Other similarly reliable means of document, as described in § 50.13; eligible to vote in the ratification establishing generation-by-generation (d) A written narrative with referendum must: descent from a Native Hawaiian supporting documentation thoroughly (i) Be based on reliable proof of Native ancestor. describing how the Native Hawaiian Hawaiian descent; (c) Verifying that a potential voter is community adopted or approved the (ii) Be made available for public an HHCA Native Hawaiian. A potential governing document in a ratification inspection; voter may meet the definition of an referendum, as described in § 50.14; (iii) Be compiled in a manner that HHCA Native Hawaiian by: (e) A written narrative with allows individuals to contest their (1) Records of DHHL, including supporting documentation thoroughly exclusion from or inclusion on the list; enumeration on a roll or other list (iv) Include adults who demonstrated describing how and when elections prepared by DHHL, documenting that they are Native Hawaiians in were conducted for government offices eligibility under HHCA sec. 201(a)(7); accordance with paragraph (b) of this (2) A sworn statement by the potential identified in the governing document, as section; voter that he or she: described in § 50.15; (v) Include adults who demonstrated (i) Is enumerated on a roll or other list (f) A duly enacted resolution of the that they are HHCA Native Hawaiians in prepared by DHHL, documenting governing body authorizing an officer to accordance with paragraph (c) of this eligibility under HHCA sec. 201(a)(7); certify and submit to the Secretary a section; (ii) Is identified as eligible under request seeking the reestablishment of a (vi) Identify voters who are HHCA HHCA sec. 201(a)(7) in specified State formal government-to-government Native Hawaiians; or territorial records; relationship with the United States; and (vii) Not include persons who will be (iii) Is identified as eligible under (g) A certification, signed and dated younger than 18 years of age on the last HHCA sec. 201(a)(7) in a Federal, state, by the authorized officer, stating that the day of the ratification referendum; and or territorial court order; or submission is the request of the (viii) Not include persons who (iv) Can provide records documenting governing body. requested to be removed from the list. eligibility under HHCA sec. 201(a)(7) (2) The community must make through generation-by-generation § 50.11 What process is required in reasonable and prudent efforts to ensure descent from a Native Hawaiian drafting the governing document? the integrity of its list. ancestor or ancestors; The written narrative thoroughly (3) Subject to paragraphs (a)(1) and (2) (3) A sworn statement from a sponsor describing the process for drafting the of this section, the community may rely who meets the requirements of governing document must describe how on a roll of Native Hawaiians prepared paragraph (c)(1) or (2) of this section the process ensured that the document by the State under State law. that the potential voter is an HHCA was based on meaningful input from (b) Verifying that a potential voter is Native Hawaiian; or representative segments of the Native a Native Hawaiian. A potential voter (4) Other similarly reliable means of Hawaiian community and reflects the may meet the definition of a Native establishing eligibility under HHCA sec. will of the Native Hawaiian community. Hawaiian by: 201(a)(7).

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00044 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 71321

§ 50.13 What must be included in the (5) The total number of HHCA Native (c) Open to all eligible Native governing document? Hawaiians who cast a ballot in the Hawaiian members as defined in the The governing document must: ratification referendum. governing document. (a) State the government’s official (b) A description of how the Native name; Hawaiian community conducted the § 50.16 What criteria will the Secretary apply when deciding whether to reestablish (b) Prescribe the manner in which the ratification referendum that government exercises its sovereign the formal government-to-government demonstrates: relationship? powers; (1) How and when the Native (c) Establish the institutions and The Secretary will grant a request if Hawaiian community made the full text the Secretary determines that each structure of the government, and of its of the proposed governing document political subdivisions (if any) that are criterion on the following list of eight (and a brief impartial description of that criteria has been met: defined in a fair and reasonable manner; document) available to Native (d) Authorize the government to (a) The request includes the seven Hawaiians prior to the ratification required elements described in § 50.10; negotiate with governments of the referendum, through the Internet, the United States, the State, and political (b) The process by which the Native news media, and other means of Hawaiian community drafted the subdivisions of the State, and with non- communication; governmental entities; governing document met the (2) How and when the Native (e) Provide for periodic elections for requirements of § 50.11; Hawaiian community notified Native government offices identified in the (c) The process by which the Native Hawaiians about how and when it governing document; Hawaiian community determined who (f) Describe the criteria for would conduct the ratification could participate in ratifying the membership, which: referendum; governing document met the (1) Must permit HHCA Native (3) How the Native Hawaiian requirements of § 50.12; Hawaiians to enroll; community accorded Native Hawaiians (d) The duly ratified governing (2) May permit Native Hawaiians who a reasonable opportunity to vote in the document, submitted as part of the are not HHCA Native Hawaiians, or ratification referendum; request, meets the requirements of some defined subset of that group that (4) How the Native Hawaiian § 50.13; is not contrary to Federal law, to enroll; community prevented voters from (e) The ratification referendum for the (3) Must exclude persons who are not casting more than one ballot in the governing document met the Native Hawaiians; ratification referendum; and requirements of § 50.14(b) and (c) and (4) Must establish that membership is (5) How the Native Hawaiian was conducted in a manner not contrary voluntary and may be relinquished community ensured that the ratification to Federal law; voluntarily; and referendum: (f) The elections for the government (5) Must exclude persons who (i) Was free and fair; offices identified in the governing voluntarily relinquished membership; (ii) Was held by secret ballot or document, including members of the (g) Protect and preserve Native equivalent voting procedures; governing body, were consistent with Hawaiians’ rights, protections, and (iii) Was open to all persons who were § 50.15 and were conducted in a manner benefits under the HHCA and the verified as satisfying the definition of a not contrary to Federal law; HHLRA; Native Hawaiian (consistent with (g) The number of votes that Native (h) Protect and preserve the liberties, § 50.12) and were 18 years of age or Hawaiians, regardless of whether they rights, and privileges of all persons older, regardless of residency; were HHCA Native Hawaiians, cast in affected by the government’s exercise of (iv) Did not include in the vote tallies favor of the governing document its powers, see 25 U.S.C. 1301 et seq.; votes cast by persons who were not exceeded half of the total number of (i) Describe the procedures for Native Hawaiians; and ballots that Native Hawaiians cast in the proposing and ratifying amendments to (v) Did not include in the vote tallies ratification referendum: Provided, that the governing document; and for HHCA Native Hawaiians votes cast the number of votes cast in favor of the (j) Not contain provisions contrary to by persons who were not HHCA Native governing document in the ratification Federal law. Hawaiians. referendum was sufficiently large to § 50.14 What information about the (c) A description of how the Native demonstrate broad-based community ratification referendum must be included in Hawaiian community verified whether a support among Native Hawaiians; and the request? potential voter in the ratification Provided Further, that, if fewer than The written narrative thoroughly referendum was a Native Hawaiian and 30,000 Native Hawaiians cast votes in describing the ratification referendum whether that potential voter was also an favor of the governing document, this must include the following information: HHCA Native Hawaiian, consistent with criterion is not satisfied; and Provided (a) A certification of the results of the § 50.12. Further, that, if more than 50,000 Native ratification referendum including: Hawaiians cast votes in favor of the (1) The date or dates of the ratification § 50.15 What information about the governing document, the Secretary shall referendum; elections for government offices must be apply a presumption that this criterion (2) The number of Native Hawaiians, included in the request? is satisfied; and regardless of whether they were HHCA The written narrative thoroughly (h) The number of votes that HHCA Native Hawaiians, who cast a vote in describing how and when elections Native Hawaiians cast in favor of the favor of the governing document; were conducted for government offices governing document exceeded half of (3) The total number of Native identified in the governing document, the total number of ballots that HHCA Hawaiians, regardless of whether they including members of the governing Native Hawaiians cast in the ratification were HHCA Native Hawaiians, who cast body, must show that the elections referendum: Provided, that the number a ballot in the ratification referendum; were: of votes cast in favor of the governing (4) The number of HHCA Native (a) Free and fair; document in the ratification referendum Hawaiians who cast a vote in favor of (b) Held by secret ballot or equivalent was sufficiently large to demonstrate the governing document; and voting procedures; and broad-based community support among

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4 71322 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations

HHCA Native Hawaiians; and Provided paragraphs (a)(1) and (a)(2)(iv) of this governing document), the special Further, that, if fewer than 9,000 HHCA section. political and trust relationship between Native Hawaiians cast votes in favor of the United States and the Native the governing document, this criterion § 50.31 What opportunity will the requester Hawaiian community will be have to respond to comments? is not satisfied; and Provided Further, reaffirmed, and a formal government-to- that, if more than 15,000 HHCA Native Following the Web site posting government relationship will be Hawaiians cast votes in favor of the described in § 50.30(b), the requester reestablished with the Native Hawaiian governing document, the Secretary shall will have 60 days to respond to any Governing Entity as the sole apply a presumption that this criterion comment or evidence that was timely representative sovereign government of is satisfied. submitted to the Department in the Native Hawaiian community. accordance with § 50.30(a)(1) and Subpart C—Process for Reestablishing (a)(2)(iv). § 50.44 How will the formal government-to- government relationship between the a Formal Government-to-Government § 50.32 May the deadlines in this part be Relationship United States Government and the Native extended? Hawaiian Governing Entity be Submitting a Request Yes. Upon a finding of good cause, the implemented? Secretary may extend any deadline in (a) Upon reestablishment of the § 50.20 How may a request be submitted? § 50.30 or § 50.31 by a maximum of 90 formal government-to-government If the Native Hawaiian community days and post on the Department Web relationship, the Native Hawaiian seeks to reestablish a formal site the length of and the reasons for the Governing Entity will have the same government-to-government relationship extension: Provided, that any request for formal government-to-government with the United States, the request an extension of time is in writing and relationship under the United States under this part must be submitted to the sets forth good cause. Constitution and Federal law as the Secretary, Department of the Interior, The Secretary’s Decision formal government-to-government 1849 C Street NW., Washington, DC relationship between the United States 20240. § 50.40 When will the Secretary issue a and a federally-recognized tribe in the decision? § 50.21 Is the Department available to continental United States, in recognition provide technical assistance? The Secretary will apply the criteria of the existence of the same inherent described in § 50.16 and endeavor to sovereign governmental authorities, Yes. The Department may provide either grant or deny a request within subject to the limitation set forth in technical assistance to facilitate 120 days of determining that the paragraph (d) of this section. compliance with this part and with requester’s submission is complete and (b) The Native Hawaiian Governing other Federal law, upon request for after receiving all the information Entity will be subject to the plenary assistance. described in §§ 50.30 and 50.31. The authority of Congress to the same extent Public Comments and Responses to Secretary may request additional as are federally-recognized tribes in the Public Comments documentation and explanation from continental United States. the requester or the public with respect (c) Absent Federal law to the contrary, § 50.30 What opportunity will the public to the material submitted, including any member of the Native Hawaiian have to comment on a request? whether the request is consistent with Governing Entity presumptively will be (a) Within 20 days after receiving a this part. If the Secretary is unable to act eligible for current Federal Native request that appears to the Department within 120 days, the Secretary will Hawaiian programs, services, and to be consistent with §§ 50.10 and provide notice to the requester, and benefits. 50.16(g) and (h), the Department will: include an explanation of the need for (d) The Native Hawaiian Governing (1) Publish in the Federal Register more time and an estimate of when the Entity, its political subdivisions (if any), notice of receipt of the request and decision will issue. and its members will not be eligible for notice of the opportunity for the public, Federal Indian programs, services, and within 60 days following publication of § 50.41 What will the Secretary’s decision benefits unless Congress expressly and the Federal Register notice, to submit include? specifically has declared the Native comment and evidence on whether the The decision will respond to Hawaiian community, the Native request meets the criteria described in significant public comments and Hawaiian Governing Entity (or the § 50.16; and summarize the evidence, reasoning, and official name stated in that entity’s (2) Post on the Department Web site: analyses that are the basis for the governing document), its political (i) The request, including the Secretary’s determination regarding subdivisions (if any), its members, governing document; whether the request meets the criteria Native Hawaiians, or HHCA Native (ii) The name and mailing address of described in § 50.16 and is consistent Hawaiians to be eligible. the requester; with this part. (e) Reestablishment of the formal (iii) The date of receipt; and § 50.42 When will the Secretary’s decision government-to-government relationship (iv) Notice of the opportunity for the take effect? will not authorize the Native Hawaiian public, within 60 days following The Secretary’s decision will take Governing Entity to sell, dispose of, publication of the Federal Register effect 30 days after the publication of lease, tax, or otherwise encumber notice, to submit comment and evidence notice in the Federal Register. Hawaiian home lands or interests in on whether the request meets the those lands, or to diminish any Native criteria described in § 50.16. § 50.43 What does it mean for the Hawaiian’s rights, protections, or (b) Within 20 days after the close of Secretary to grant a request? benefits, including any immunity from the comment period, the Department When a decision granting a request State or local taxation, granted by: will post on its Web site any comment takes effect, the requester will (1) The HHCA; or notice of evidence relating to the immediately be identified as the Native (2) The HHLRA; request that was timely submitted to the Hawaiian Governing Entity (or the (3) The Act of March 18, 1959, 73 Department in accordance with official name stated in that entity’s Stat. 4; or

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00046 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 71323

(4) The Act of November 11, 1993, (g) Nothing in this part impliedly jurisdiction of any federally-recognized secs. 10001–10004, 107 Stat. 1418, amends, repeals, supersedes, abrogates, tribe in the continental United States. 1480–84. or overrules any applicable Federal law, Michael L. Connor, (f) Reestablishment of the formal including case law, affecting the Deputy Secretary. government-to-government relationship privileges, immunities, rights, does not affect the title, jurisdiction, or protections, responsibilities, powers, [FR Doc. 2016–23720 Filed 10–13–16; 8:45 am] status of Federal lands and property in limitations, obligations, authorities, or BILLING CODE 4334–63–P Hawaii.

VerDate Sep<11>2014 16:34 Oct 13, 2016 Jkt 214001 PO 00000 Frm 00047 Fmt 4701 Sfmt 9990 E:\FR\FM\14OCR4.SGM 14OCR4 sradovich on DSK3GMQ082PROD with RULES4