Obama Administration Ignores Congress, Pursues Administrative Akaka Bill
As the country celebrates Memorial Day weekend and remembers those who died for our country, the Obama administration quietly issued an Advanced Notice of Proposed Rulemaking (ANPRM) that will drive a wedge between neighbors. By way of background, Native Hawaiians are not a tribe, but a race. They are not eligible for tribal status under the Constitution. In 2000, the Supreme Court’s decision in Rice v. Cayetano cast doubt on the constitutionality of set-asides for Native Hawaiians because those set-asides confer a benefit on the basis of race. Ever since Rice v. Cayetano, Native Hawaiian activists have been trying to attain tribal recognition so they can preserve these preferences by recasting them as preferences on the basis of tribal status instead of race. In response to rice, the late Sen. Daniel Akaka proposed “the Akaka bill,” which would grant tribal status to people of Native Hawaiian blood despite the lack of an historical tribe and the unconstitutionality of such a measure.
Congress rejected the bill every time Sen. Akaka proposed it. As Commissioners Heriot and Kirsanow wrote in a 2010 Wall Street Journal op-ed, the bill would establish two systems of government for American citizens living side-by-side – one for people of Native Hawaiian descent, and another, less favorable regime for people who are not of Native Hawaiian descent.
Last year, rumors began to circulate that if Congress did not pass a version of the Akaka bill, the Obama administration would attempt an end-run around Congress and unilaterally confer tribal status upon the Native Hawaiians. This is exactly what yesterday’s ANPRM does. Conferring tribal status upon the Native Hawaiians would be unconstitutional if Congress did it. It is doubly unconstitutional, and lawless, for the Administration to confer tribal status upon Native Hawaiians on its own authority. It has no authority to confer tribal status upon Native Hawaiians, but hopes that doing this through the bureaucratic process will stymie the opposition and perhaps leave its action invulnerable to legal challenge.
Commissioners Heriot and Kirsanow, along with former Commissioners Gaziano and Thernstrom, sent a letter to the Administration last year warning against any attempt to confer tribal status upon Native Hawaiians. Read the entire letter here: Letter to President Obama Opposing Executive Order Implementing Akaka Bill (September 2013).
DOI/ASPMB RIN: 1090-AB05 Publication ID: Spring 2014
Title: Procedures for Reestablishing a Government-to-Government Relationship With the Native Hawaiian Community
Abstract: The Secretary of the Interior is considering whether to propose an administrative rule that would facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community, to more effectively implement the special political and trust relationship that Congress has established between that community and the United States. The purpose of this advance notice of proposed rulemaking (ANPRM) is to solicit public comments on whether and how the Department of the Interior should facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community.
Agency: Department of the Interior(DOI)
Priority: Other Significant
RIN Status: Previously published in the Unified Agenda
Agenda Stage of Rulemaking: Prerule Stage
Unfunded Mandates: No
CFR Citation: 43 CFR 50
Legal Authority: PL 108-199, 188 Stat 445-46; PL 104-42, 109 Stat 357
Legal Deadline: None
Action Date FR Cite
Regulatory Flexibility Analysis Required: No
Government Levels Affected: None
Small Entities Affected: No
Included in the Regulatory Plan: No
RIN Data Printed in the FR: No
Agency Contact: Mark Lawyer
Deputy Director – Policy & Regulatory Affairs
Department of the Interior
1849 C Street, NW, Mailstop 7328,
Washington, DC 22222