In a move that already is stirring controversy, the Obama administration is taking the first steps in a long process that could eventually lead to the federal government’s recognition of a future Native Hawaiian governing entity.
But some are questioning whether the action is premature and whether the president has the authority to re-establish a government-to-government relationship without going through Congress, as backers of the so-called Akaka Bill unsuccessfully tried to do for more than a decade.
"I think he’s on a rather slippery slope," said Gil Johnston, a Chicago law school professor and former Legal Aid attorney who used to practice in Hawaii, represented Native Hawaiians and has expertise in administrative rule-making, the process Obama is embarking on to consider the government-to-government issue. "If I were advising Obama, I would say, ‘You’re going to face defeat.’"
Executive branch officials, however, said the administrative route is one of three that could be pursued — the others are legislatively and through the courts — and emanates from the special political and trust relationship that the federal government has with Native Hawaiians. That relationship has been recognized by Congress over the years through the passage of more than 150 statutes, and the Interior secretary has been given the authority to engage in government-to-government relationships with those recognized native communities, according to the administration.
The steps announced Wednesday by the Interior Department, which oversees Native Hawaiian issues for the administration, begin Monday with a series of public meetings throughout the state. The sessions will extend into early July.
Additional meetings will be held in Native American communities on the mainland.
The idea is to get public comment on some fundamental questions, including whether the administration should propose an administrative rule to assist with the re-establishment of a government-to-government relationship, one that previously ended with the overthrow of the Hawaiian Kingdom in 1893.
What form that process should take, if pursued, and whether the Interior Department should assist the Native Hawaiian community in reorganizing a government also are among the questions to be addressed over the next 60 days.
If Obama decides to pursue recognition administratively, a final rule would be proposed which would be subject to further public comment. The entire process could take one to two years or even longer.
In a teleconference Wednesday from Washington, D.C., Rhea Suh, Interior’s assistant secretary for policy, management and budget, and Sam Hirsch, a Justice Department attorney, briefed reporters on the process, and both emphasized the need to get feedback from throughout Hawaii. Suh said the administration was responding to requests from Native Hawaiians, state leaders and Hawaii’s congressional delegation.
"We want to hear from the community on how to proceed," Hirsch said.
Suh added that Hawaiians will make the decision on how to define themselves, such as whether to pursue a tribal designation similar to American Indians.
"There is nothing in this process that speaks to how the native community should be defined," Suh said. "This process only pertains to the relationship between the U.S. government and the Native Hawaiian community."
The meetings will start as President Barack Obama faces a hostile, partisan Congress, where his main domestic priorities face little chance of passing in his remaining time in office.
In recent months, the president increasingly has turned to his executive powers to pursue initiatives, and this could be another example.
Proponents lauded the president’s move.
"We commend this initial effort by the Obama administration to engage our people in a discussion about re-establishing a government-to-government relationship with the United States," Office of Hawaiian Affairs Chairwoman Colette Machado said in a written statement. "This effort is an important step toward ensuring that millions of dollars for Native Hawaiian education, health and other programs will continue to flow to our people and that our Hawaiian trusts and programs will be protected from further legal challenges."
Robin Danner, the former chief executive of the Council for Native Hawaiian Advancement, an advocacy group, called the step historic, marking the first time a presidential administration is exploring re-establishment of a government-to-government relationship through executive channels.
"It’s monumental, and it’s the right thing to do," said Danner, who a year ago attended a White House meeting with Obama to present the council’s request to pursue recognition administratively. "This is about Hawaiians taking responsibility for our own well-being. This is not only good for the Native Hawaiian people and our culture, this is great for the entire state of Hawaii."
Hawaii’s congressional delegation, in a joint statement, likewise applauded the development.
"This notice represents an historic opportunity to address years of injustice and marks a positive step forward in the push for Native Hawaiian self-determination," they said.
Gov. Neil Abercrombie said Interior officials would be welcomed to Hawaii.
"I commend the Obama administration for recognizing and supporting Native Hawaiians as it works to reconcile its relationship with Native Hawaiians at the federal level," Abercrombie said in a written statement.
The meetings that begin next week will coincide with OHA’s ongoing nation-building process, which likewise has been the focus of controversy. OHA’s top administrator, Kamana‘opono Crabbe, recently called for a six- to nine-month delay in that process.
Crabbe caused a stir when he wrote an "unauthorized" letter to Secretary of State John Kerry seeking an opinion on the legal status of the Hawaiian Kingdom.
Some Native Hawaiians and others contend the Obama move is premature and rushed, given the short notice before the meeting start and the lingering questions about the nation-building process and the kingdom.
This will add "more mayhem, more chaos," said Kekuewa Kikiloi, assistant professor at the University of Hawaii’s Kamakakuokalani Center for Hawaiian Studies. "It’s really coming at the wrong time."
Suh said the rule-making process will complement OHA’s nation-building effort.
Former Gov. John Waihee, who heads the Native Hawaiian Roll Commission overseeing the nation-building effort, urged the administration to support that effort and work out a political relationship directly with the yet-to-be formed government.
"Over 125,000 Native Hawaiians are prepared to move forward over the next few months with the process of nation-building, and it is critically important and respectful to allow self-determination to take a self-determined path," Waihee wrote in a statement.
Any attempt by Obama to move toward the re-establishment of a government-to-government relationship administratively is expected to be resisted by Hawaiian sovereignty advocates and those who believe the president would be overstepping his authority as a way to bypass Congress.
Efforts to pass the Akaka Bill — named after its primary sponsor, former U.S. Sen. Daniel Akaka, and first introduced in 1999 — fell flat in Congress. The bill would have granted Native Hawaiians federal recognition similar to that of American Indians and Alaska natives. The measure, which passed the House, never made it to the Senate floor for a vote. Akaka retired last year.
Keli‘i Akina, president of the Grassroot Institute of Hawaii, called the administration’s move "an unconstitutional end-run around the Supreme Court and the U.S. Congress."
In a statement, Crabbe, OHA’s administrator, noted that the Interior process would produce one option among others for Hawaiians to consider.
"The decision of whether to walk through the federal door or another will be made by delegates to a Native Hawaiian ‘aha (convention) and ultimately our people," he wrote. "We are committed to keeping all doors open so our people can have a full breadth of options from which to choose what is best for themselves and everyone in Hawaii."
COMMENT IN PERSON OR IN WRITING
The U.S. Department of the Interior has scheduled a series of three-hour public meetings in Hawaii and Native American communities on the mainland to solicit comments and feedback on whether and how the process of re-establishing a government-to-government relationship with Native Hawaiians should move forward. Attendance at the meetings is not required for public comment, according to the department. Comments can be submitted online through the Federal eRulemaking Portal, www.regulations.gov, beginning later this week, or via U.S. mail, courier or hand delivery to: Office of the Secretary, Department of the Interior, Room 7329, 1849 C Street NW, Washington, DC 20240 (use Regulation Identifier Number 1090-AB05 in your message). The public will have 60 days from the date of publication in the Federal Register to provide comments on this action, officials said Wednesday.
PUBLIC MEETINGS IN HAWAII: MONDAY THROUGH JULY 8 OAHU >> Monday: Honolulu, 9 a.m., state Capitol auditorium >> Monday: Waimanalo, 6 p.m., Waimanalo Elementary and Intermediate School >> Tuesday: Waianae Coast, 6 p.m., Nanaikapono Elementary School >> June 25: Kaneohe, 6 p.m., Heeia Elementary School >> June 26: Kapolei, 6 p.m., Makakilo Elementary School
LANAI >> June 27: Lanai City, 6 p.m., Lanai Senior Center Molokai >> June 28: Kaunakakai, 1 p.m., Kaunakakai Elementary School
KAUAI >> June 30: Waimea, 6 p.m., Waimea Neighborhood Center >> July 1: Kapaa, 6 p.m., Kapaa Elementary School
HAWAII ISLAND >> July 2: Hilo, 6 p.m., Keaukaha Elementary School >> July 3: Waimea, 10 a.m., Waimea Community Center >> July 3: Kona, 6 p.m., Kealakehe High School
MAUI >> July 5: Hana, 1 p.m., Hana High & Elementary School >> July 7: Lahaina, 6 p.m., King Kamehameha III Elementary School >> July 8: Kahului, 6 p.m., Pomaikai Elementary School
INDIAN COUNTRY CONSULTATIONS: JULY 29 THROUGH AUG. 7 >> July 29, 9 a.m., Mystic Lake Casino Hotel, Prior Lake, Minn. >> July 30, 1 p.m., Rushmore Civic Center, Rapid City, S.D. >> Aug. 1, 9 a.m., Tulalip Resort, Seattle >> Aug. 5, 9 a.m., Talking Stick Resort, Scottsdale, Ariz. >> Aug. 7, 9 a.m., Mohegan Sun, Uncasville, Conn.
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