Native Hawaiian Recognition - Department of Interior - Notice of Proposed Rule Making - CMH Comment October 4, 2015
“If we desire respect for the law, we must first make the law respectable.” Justice Louis D. Brandeis, United States Supreme Court
Published on: Mar 3, 2016
Transcripts - Native Hawaiian Recognition - Department of Interior - Notice of Proposed Rule Making - CMH Comment October 4, 2015
Clifton M. Hasegawa
Chairman and CEO
Kaimanu Maritime Corpration
1044 Kilani Avenue 12, Wahiawa, Hawaii 96786
October 4, 2015
The Honorable Sally Jewell
Office of the Secretary
Department of the Interior
1849 C Street NW Room 7228
Washington, DC 20240
Dear Madam Secretary,
Thank you for the opportunity to comment on the Proposed Rule to Re-Establish a
Formal Government - to - Government Relationship with the Native Hawaiian Community.
Your purpose to facilitate the establishment of this process should be harmonized and
broadened consistent with case and statutory laws.
Predicating the beginning of Department of Interior process on the contingency "if the
Native Hawaiian community forms a unified government" undermines the success of the
Department of Interior proposal as acknowledged and stated in the Notice of Proposed Rule
Making, i.e., the long standing nature of the issue and multiple participants with separate
Recommended is the Department of Interior taking the proactive and leadership role to
achieve excellence and maximize the opportunity for success.
Thank you very much.
Clifton M. Hasegawa
DEPARTMENT OF THE INTERIOR
Office of the Secretary
[43 CFR PART 50]
Procedures for Reestablishing a Formal Government-to-Government
Relationship with the Native Hawaiian Community
Docket No. DOI–2015–0005-2438
[145D0102DM DS6CS00000 DLSN00000.000000 DX.6CS25241A0]
DATE: October 4, 2015
Clifton M. Hasegawa
Chairman and CEO - Kaimanu Maritime Corporation
1044 Kilani Avenue 12
Wahiawa, Hawaii 96786
Direct: (808) 498.8408
The Secretary cites with favor and affirmation the case of Rice v. Cayetano, 528 U.S. 495
(2000) and governing authority of the Office of Hawaiian Affairs. Respectfully, recommended
is the Notice of Proposed Rulemaking be amended and be aligned to be specific and consistent
with the decision in Rice v. Cayetano and “Native Hawaiian” as defined by the Office of
Hawaiian Affairs and The Kingdom of Hawaii be utilized for purposes of this Rule Making and
henceforth be applied to and for all laws utilizing and referencing the term “Native Hawaiian”.
SUPREME COURT OF THE UNITED STATES
HAROLD F. RICE, PETITIONER
BENJAMIN J. CAYETANO, GOVERNOR OF HAWAII
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
Hawaiians, being the group to whom trust obligations run and to whom OHA
The Hawaiian Constitution limits the right to vote for nine trustees chosen in a
statewide election. The trustees compose the governing authority of a state
agency known as the Office of Hawaiian Affairs, or OHA. The agency
administers programs designed for the benefit of two subclasses of Hawaiian
citizenry, “Hawaiians” and “native Hawaiians.” State law defines “native
Hawaiians” as descendants of not less than one-half part of the races
inhabiting the Islands before 1778, and “Hawaiians”–a larger class that
includes “native Hawaiians”–as descendants of the peoples inhabiting the
Hawaiian Islands in 1778. The trustees are chosen in a statewide election in
which only “Hawaiians” may vote. Petitioner Harold F. Rice, a Hawaiian
citizen without the requisite ancestry to be a “Hawaiian” under state law,
applied to vote in OHA trustee elections.
When his application was denied, he sued respondent Governor (hereinafter
State), claiming, inter alia, that the voting exclusion was invalid under the
Fourteenth and Fifteenth Amendments.
The Federal District Court granted the State summary judgment. Surveying
the history of the Islands and their people, it determined that Congress and
Hawaii have recognized a guardian-ward relationship with the native
Hawaiians, which is analogous to the relationship between the United States
and Indian tribes. It examined the voting qualifications with the latitude
applied to legislation passed pursuant to Congress’ power over Indian affairs,
see Morton v. Mancari, 417 U.S. 535, and found that the electoral scheme was
rationally related to the State’s responsibility under its Admission Act to utilize
a part of the proceeds from certain public lands for the native Hawaiians’
benefit. The Ninth Circuit affirmed, finding that Hawaii “may rationally
conclude that trustees owe a duty of loyalty, should be the group to decide who
the trustees ought to be.” 146 F.3d 1075, 1079.
Held: Hawaii’s denial of Rice’s right to vote in OHA trustee elections violates
the Fifteenth Amendment.
JUSTICE KENNEDY delivered the opinion of the Court.
[A]ncestral inquiry … implicates the same grave concerns as a classification
specifying a particular race by name. One of the principal reasons race is
treated as a forbidden classification is that it demeans the dignity and worth of
a person to be judged by ancestry instead of by his or her own merit and
essential qualities. An inquiry into ancestral lines is not consistent with
respect based on the unique personality each of us possesses, a respect the
Constitution itself secures in its concern for persons and citizens.
The ancestral inquiry … is forbidden by the Fifteenth Amendment for the
further reason that the use of racial classifications is corruptive of the whole
legal order democratic elections seek to preserve.
The law itself may not become the instrument for generating the prejudice
and hostility all too often directed against persons whose particular ancestry
is disclosed by their ethnic characteristics and cultural traditions.
“Distinctions between citizens solely because of their ancestry are by their very
nature odious to a free people whose institutions are founded upon the doctrine of
equality.” Hirabayashi v. United States, 320 U. S. 81, 100 (1943).
Ancestral tracing of this sort achieves its purpose by creating a legal category
which employs the same mechanisms, and causes the same injuries, as laws
or statutes that use race by name.
When the culture and way of life of a people are all but engulfed by a history
beyond their control, their sense of loss may extend down through generations;
and their dismay may be shared by many members of the larger community.
As the State of Hawaii attempts to address these realities, it must, as always,
seek the political consensus that begins with a sense of shared purpose. One
of the necessary beginning points is this principle: The Constitution of the
United States, too, has become the heritage of all the citizens of Hawaii.
It is so ordered.
SOURCE: Cornell University School of Law
References from the Notice of Proposed Rulemaking
[T]he proposed rule would establish an administrative procedure and criteria that the
Secretary would use if the Native Hawaiian community forms a unified government
that then seeks a formal government-to-government relationship with the United States.
The Secretary of the Interior (Secretary) is proposing an administrative rule to facilitate
the reestablishment of a formal government-to-government relationship with the Native
Hawaiian community. [Emphasis Supplied]
[T]he United States has not partnered with Native Hawaiians on a government-to-
government basis, at least partly because there has been no formal, organized Native
Hawaiian government since 1893, when a United States officer, acting without
authorization of the U.S. government, conspired with residents of Hawaii to
overthrow the Kingdom of Hawaii. [Emphasis Supplied]
The United States nevertheless annexed Hawaii ‘‘without the consent of or
compensation to the indigenous people of Hawaii or their sovereign government who
were thereby denied the mechanism for expression of their inherent sovereignty through
self-government and self-determination.’’ 42 U.S.C. 1701(11). [Emphasis Supplied]
Although the indigenous people shared a common language, ancestry, and religion, four
independent chiefdoms governed the eight islands1
until 1810, when King Kamehameha I
unified the islands under one Kingdom of Hawaii. See Rice v. Cayetano, 528 U.S. 495,
500–01 (2000). [Emphasis Supplied]
Hawaii was a U.S. territory for six decades prior to 1959, and during much of this period,
educated Native Hawaiians, and a government led by them, were perceived as threats to
the incipient territorial government. Consequently, the use of the Hawaiian language in
education in public schools was declared unlawful. 20 U.S.C. 7512(19). [Emphasis
The term ‘‘Native Hawaiian,’’ as used in the proposed rule, means an individual who is
a citizen of the United States and a descendant of the aboriginal people who, prior to
1778, occupied and exercised sovereignty in the area that now constitutes the State of
Hawaii. This definition flows directly from multiple Acts of Congress. See, e.g., 12
U.S.C. 1715z–13b(6); 25 U.S.C. 4221(9); 42 U.S.C. 254s(c); 42 U.S.C. 11711(3). To
satisfy this definition would require some means of documenting descent generation-by-
generation, such as enumeration on a roll of Native Hawaiians certified by a State of
Hawaii commission or agency under State law, where the enumeration was based on
documentation that verified descent. And, of course, enumeration in official DHHL
records demonstrating eligibility under the HHCA also would satisfy the definition
of ‘‘Native Hawaiian,’’ as it would show that a person is an HHCA-eligible Native
Hawaiian and by definition a ‘‘Native Hawaiian’’ as that term is used in this proposed
Each Independent Chiefdom was referred to as a “Mokupuni” (Large Island District). The 4 Island Districts were
Oahu, Kauai, Maui (comprised of the islands Maui, Lanai, Molokai and Kahoolawae) and Kauai (comprised of the
islands of Kauai and Niihau). Today, the State of Hawaii, the Governor, Legislature and the Supreme Court is on
Oahu with 4 county governments each with an elected Mayor.
The Department would like to receive public comment on whether documenting
descent from a person enumerated on the 1890 Census by the Kingdom of Hawaii,
the 1900 U.S. Census of the Hawaiian Islands, or the 1910 U.S. Census of Hawaii as the
as ‘‘Native’’ or part ‘‘Native’’ or ‘‘Hawaiian’’ or part ‘‘Hawaiian’’ is reliable evidence
of lineal descent from the aboriginal, indigenous, native people who exercised
sovereignty over the territory that became the State of Hawaii.
The OHA (Office of Hawaiian Affairs) Hawaiian Registry Program (HRP) provides
registered Hawaiians, worldwide, with a card verifying their Hawaiian ancestry. The
Office of Hawaiian Affairs issues the card after verifying indigenous Hawaiian
ancestry through biological parentage. No blood quantum is required.
[Emphasis and Clarification Supplied]
The legal basis for the establishment of the Department of Hawaiian Home Lands
(DHHL) is the Hawaiian Homes Commission Act, 1920, as amended (HHCA).
Passed by Congress and signed into law by President Warren Harding on July 9, 1921
(chapter 42, 42 Stat. 108), the HHCA provides for the rehabilitation of the native
Hawaiian people through a government-sponsored homesteading program. Native
Hawaiians are defined as individuals having at least 50 percent Hawaiian blood.
[Emphasis Supplied] Source: http://dhhl.hawaii.gov/hhc/laws-and-rules/
Kana'iolowalu Native Hawaiian Roll Commission. The law [Act 195] that
authorized this effort defines a Native Hawaiian as (A) Any person who is a lineal
descendant of the aboriginal people who resided in the Hawaiian Islands prior to
1778, or (B) Any person who is eligible for Hawaiian Home Lands or (C) Is a lineal
descendant of a person who is eligible for Hawaiian Home Lands.
[Emphasis and Clarification Supplied]
The Kingdom of Hawaii. “The nationality or political status of persons ancillary to
the Hawaiian Kingdom are termed Hawaiian subjects. The native inhabitants of the
Hawaiian Islands became subjects of the Kingdom as a consequence of the
unification of the islands by His Majesty King Kamehameha I at the turn of the 19th
century. Since Hawai'i became constitutional, foreigners were capable of becoming
Hawaiian nationals either through naturalization or denization. Under the
naturalization laws of the Kingdom, foreigners who resided in the Hawaiian Islands
for at least five years could apply to the Minister of Interior for naturalization,
whereby "Every foreigner so naturalized, shall be deemed to all intents and purposes
a native of the Hawaiian Islands, be amenable only to the laws of this Kingdom, and
to the authority and control thereof, be entitled to the protection of said laws, and be
no longer amenable to his native sovereign while residing in this Kingdom, nor
entitled to resort to his native country for protection or intervention. He shall be
amenable, for every such resort, to the pains and penalties annexed to rebellion by the
Criminal Code. And every foreigner so naturalized, shall be entitled to all the rights,
privileges and immunities of an Hawaiian subject." Denization was a constitutional
prerogative of the Office of the Monarch, whereby, a foreigner may have all the rights
and privileges of a Hawaiian subject, but is not required to relinquish his allegiance to
his native country as is required under naturalization. Denization was "dual
citizenship," which was accompanied by an oath of allegiance to the Hawaiian
Kingdom.” It was reserved to those foreigners who may not have resided in the
Kingdom for five years or more, but their services were necessary in the affairs of
government both local and abroad. The children of Hawaiian denizens born on
Hawaiian territory were considered Hawaiian subjects. Examples of Hawaiian
denizens were special envoys who negotiated international treaties and officers
serving in the Hawaiian government.
Remarks by Barack Obama, President of the United States of America
“The legacy of discrimination - and current incidents of discrimination, while less overt than in
the past - are real and must be addressed.”
“And I will do everything that I can as long as I am President of the United States to remind the
American people that we are one nation under God, and we may call that God different names
but we remain one nation.”
Hawaii is a multi-cultural society that has evolved throughout history as a place where
the contributions each generation of Native Hawaiians strive to preserve, protect, maintain and
restore the knowledge, wisdom, standards of living and lifestyle of their elders and forefathers.
We, of non-Hawaiian ancestry, have been assimilated and have graciously been made
part of the Native Hawaiian culture.
The breadth, reach and lineage of the Native Hawaiian people who settled the Hawaiian
archipelago as early as 300 A.D. has grown and been extended over the years. The measure of
their ancestry is broad. All restrictive processes should be eliminated from this Rule Making.
They are Native Hawaiians. Each person is justly, rightfully, deservedly and inclusively
part of Native Hawaiian Recognition and the proposed Government-to-Government process.
Thank you for the opportunity to share my thoughts with you.
Clifton M. Hasegawa
Copy provided via Email
The Office of the Secretary, Department of the Interior [email@example.com]