Kevin K. Washburn, Assistant Secretary – Indian Affairs

Courtesy Kevin K. Washburn

Kevin K. Washburn, Assistant Secretary – Indian Affairs

Working on Acknowledgment – Interior’s New Hawaiian Recognition Initiative

On June 18, the Interior Department issued a press release announcing it is taking “a first step to consider reestablishing a government-to-government relationship between the United States and the Native Hawaiian community.” The purpose, the release says, “would be to more effectively implement the special political and trust relationship that currently exists between the Federal government and the Native Hawaiian community.”

Interior issued an Advanced Notice of Proposed Rulemaking (ANPRM) – a sort of notice of a possible coming notice of a proposed new rule – that lays out a series of public meetings and consultations in Hawaii and Indian country over the next 60 days, beginning June 23 in Honolulu. The meetings are to solicit comments to help Interior decide if it will move ahead and develop a formal, administrative procedure for “reestablishing” an official government-to-government relationship with the Native Hawaiian community and if so, what that procedure should be.

The issue is fraught with complexities, including a growing Hawaiian sovereignty movement that wants its country back. While Interior considers “reestablishing” a government-to-government relationship with Hawaii, the last time one existed was before the U.S. government’s illegal military-backed regime change in Hawaii, a sovereign independent state, in 1893 and its backing of a U.S.-controlled ”provisional government” in violation of treaties and international law.

RELATED: Native Hawaiians maintain their inherent sovereignty

The illegality of the U.S. actions is affirmed in An Apology to the Hawaiian people, a 1993 joint resolution of the House and Senate. The key statement in the apology tacitly acknowledges Native Hawaiians’ continuing rights to their land and independence: ”The indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum.”

While the sovereignty movement looks to restore the independent Hawaiian nation, many Native Hawaiians want recognition and a relationship with the federal government that would likely bring millions of dollars in federal funding for health, education and housing as it does to federally recognized Native American tribes and Alaska Natives.

Assistant Secretary – Indian Affairs Kevin K. Washburn talked to ICTMN about Interior’s initiative.

The interview began with Washburn’s introduction to the initiative as follows.

This is an Interior Department. It is not an initiative of the Bureau of Indian Affairs. … We have an office for Native Hawaiians in one of the other branches of the Department of the Interior and they’ve long worked with Native Hawaiians. But it is something that we’re interested in and we are the experts – to some degree – on Indigenous Peoples so we’ve been offering guidance and advice from the Indian Affairs’ hallway. We also know that Indian tribes are interested in the issue and we’ve also been following it from that angle and making sure that we represent Indian country’s voice in these issues so we have been involved from the very beginning.

In light of the fact that Sen. Akaka’s bill [to grant federal acknowledgment to Native Hawaiians] failed through the legislative process for 14 years, why is this being taken up by the department now?

I guess the sense is that Native Hawaiians have been interested in doing something – organizing and having a government-to-government relationship with the United States – for a long time and, frankly, I know there are a lot of different interests at the Native Hawaiian level that sometimes go in different directions. Having said that, the purpose here is just to reach out to them and say, ‘How can we be helpful to you in your efforts, if at all,’ and our offer of assistance may be embraced or it may be rejected but we feel that it’s our [responsibility to reach out]. Our purpose here is just to reach out and see if we can be helpful to them.

The first question that popped up when I read the press release was how do you establish a government-to-government relationship with a community, which isn’t a government?

That’s right. I mean, I think that those are relevant issues [but] this is not even a proposed rule yet; it’s an Advance Notice of Proposed Rule Making so it’s not even a proposed rule – it’s one step before that. It’ not even an initiative yet. We’re just asking questions here, really. And those are the kind of questions we need to answer, frankly, we need some guidance from that community. They have ben engaged in some organizational efforts and we’ve been watching from the sidelines and the question is should we be more than just on the sidelines as those questions are being keyed up.

Yes, well, there are a lot of questions, like who’s included in that ‘community’ and…

Yeah, and by the way, … there are 150 federal statutes on the books that pretty clearly establish that there is a federal relationship with a community out there so the question is how can we be more helpful and if they want to establish a formal governing entity of some sort is there a way for us to be more helpful.

How would that work? There would be a ‘governing entity’ for Native Hawaiians and then there would be the state government for everyone else? Or for everyone else AND Native Hawaiians?

So you’re wrestling with the same kind of questions that we have, you know? And, by the way, that’s one of the reasons there are certainly some similarities between the Native Hawaiian situation and tribes. American Indians are citizens of their tribe, they’re citizens of the state they live in and they’re citizens of the U.S. and that’s kind of why we’ve been involved – we can imagine some models based on our own experience on how some of these things might work but, ultimately, we also believe in self-determination so it’s up to the Native Hawaiians to find out what they would like to have and what would work for them and if it’s consistent with federal law, we will be supportive.

Well I think one thing they’d like to have is the 1.2 million acres of seized lands that are hanging out there. There was a ruling, I think in 2009, that the State of Hawaii could sell those lands before Native Hawaiians’ land rights claims were resolved. It seems to me that it’s the land that’s the real issue – who’s going to control that? And if you have a ‘governing entity” for Native Hawaiians, what is it going to govern if they don’t have land? That’s the difference with federally recognized tribes, isn’t it? They all have or want land. And that’s what self-determination is exercised over – the land.

Yeah, and honestly, those questions are beyond the scope of where we’ve gone so far. We’re at the very initial stages of just trying to reach out and see how we can be helpful and ask them some specific questions and so I wouldn’t want to express an opinion about those kinds of issues at this point. But we do have these 150 statutes … so that’s what we’re starting with. Even setting aside the question of land there are significant questions that the federal government is interested in. Some of our questions in the ANPRM are hard questions and we’re really anxious to see what the answers might be.

When you think about federal recognition [for Native Hawaiians], Hawaii was an independent state. If they become federally recognized, they become a domestic dependent nation within U.S. federal policy. Why would anybody want that?

Hmmm. Yeah. Well, we’ve got our acknowledgment regulations that we’ve been working on and this is not that process. It’s going to naturally be very different than that, but there are some potential similarities.

And also there’s the issue of the growing number of Hawaiians who consider their country illegally occupied according to international law. What would be the justification for keeping it – other than Sherrill and a laches argument – rather than, say, decolonization? [In Sherrill v Oneida Nation the Supreme Court acknowledged that the Oneidas’ land had been illegally taken and sold over the years but the Oneida Nation couldn’t reclaim it because, according to the laches doctrine, they waited too long to assert their claim and returning the land would be too disruptive to the people living there whose ancestors took the land illegally.] Does that ever come up in any of the discussions?

We have heard those things. There’s such a vibrant conversation going on in Hawaii and the purpose of the ANPRM is to get people thinking about the kinds of questions we have and to find a way to engage. There’s all kinds of hard questions down the road that are different than the ones we’ve asked but we’ve got to start somewhere and this is where we’re starting.

You’ve got your work cut out for you.

We do, we do. We’re anxious to have these conversations, though. We don’t expect it to be an easy task and we know that things are somewhat controversial within Hawaii. So the key questions are whether the secretary should be involved in activities out there and if so, how? We’ve increasingly heard from Native Hawaiians that they would like to have a formalized government-to-government with the U.S. so the questions are do you want that and how do we make that happen? Over the years Indian groups have been very sympathetic to some of the issues that Hawaiians have faced. In some respects they’re similar – very strong cultural [traditions], their language and that sort of thing so the National Congress of American Indians and Assembly of First Nations have supported the legislation on the government-to-government relationship. We know it’ll be different than what American Indians have but nevertheless it’ll be meaningful to Hawaiians.

Just to jump back a moment, has the issue of decolonization ever been talked about or is that just totally off the radar?

Well, you know, not really. I jokingly carry a sign now that says ‘US Out of North America’ – but it’s a joke. But, no, I don’t think we’re talking about disestablishing the State of Hawaii or anything like that. We’re just talking about trying to engage in a constructive way with the Native Hawaiian community.

Why have consultations in Indian county?

American Indian tribes may have questions, they may have guidance and we need to hear from them because they might have something fruitful to help us. And we very much want them to be engaged because we have a very serious responsibility to them.

This interview has been edited for clarity.

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Working on Acknowledgment – Interior’s New Hawaiian Recognition Initiative

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