Repeal 43 CFR 50 -- Asking the Trump team, and members of the 115th Congress and their staffers, to repeal this executive order issued at the end of the Obama administration, which provides a pathway for a very small percentage of ethnic Hawaiians to rip apart the lands and people of Hawaii by creating a brand new Indian tribe and getting federal recognition for it.


created by Kenneth R. Conklin, Ph.D.
on November 14, 2016, the date when this executive order officially takes effect.


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QUICK SUMMARY -- WHAT'S HAPPENING IN LATE 2016 TO EARLY 2017 THAT MAKES THIS MESSAGE URGENT

The purpose of this webpage is to ask anyone who knows how to contact the Trump transitional team, or future Secretaries or high-level policy staffers in the Department of Interior or Department of Justice, to forward a message to them asking for an item to be placed on their list of Obama regulations and executive orders to be repealed. The purpose is also to ask that you contact Republican members of the 115th Congress, or their chief policy staffers, to forward that same message to them -- the relevant committees are the House Committee on Natural Resources, House Judiciary Committee Subcommittee on the Constitution, Senate Committee on Indian Affairs, Senate Judiciary Committee.

The message asks for repeal of a "final rule" -- an executive order -- proclaimed by the Department of Interior, published in the Federal Register on October 14, 2016 and taking effect as law on November 14, 2016. It is 43 CFR 50. It provides a pathway whereby a small percentage of 600,000 ethnic Hawaiians can create a government for a "Native Hawaiian" tribe and obtain federal recognition for that tribe even if the vast majority of ethnic Hawaiians oppose the idea or refuse to participate, and without the approval of the 80% of Hawaii's people who have no Hawaiian native ancestry. Such a tribe never existed but is in the process of being created specifically to conform to requirements in 43 CFR 50, in order to legalize numerous racial entitlement programs for 600,000 people who have at least one drop of Hawaiian native blood. The regulation is effective November 14, 2016.

This concept was rejected by Congress from 2000 through 2012; but the Obama administration is usurping the power of Congress to proclaim it unilaterally.

Hundreds of nationally known writers, civil rights activists and institutions have published articles and reports opposing this concept throughout the period 2000-2016. The names of some of them, and links to full text of their publications, are provided below. Please send this message to any of them you can contact.


HOW PRESIDENT OBAMA HAS PROCLAIMED NEW LAWS BY EXECUTIVE ORDER EVEN WHEN CONGRESS HAS REFUSED TO ENACT THEM OR VOTED AGAINST THEM

The legislative branch of our government has the authority to enact laws. The Constitution gives the President the authority and duty to "faithfully execute the laws." Laws passed by Congress often need more details for how they are to be implemented; so the President and his staff write those details in the form of regulations or rules, giving advance notice about what they say and when they will take effect. The public is given a period of time to make comments. Staffers in the executive branch consider those comments and might make small changes for clarity or legal reasons. Publication of those regulations or rules in final form in the Federal Register makes them take effect as laws.

President Obama is known for abusing his authority. He and his cabinet members and staffers in various departments have created large numbers of regulations, rules, and executive orders despite the lack of legislation to authorize them. Sometimes Obama has unilaterally proclaimed laws after Congress refused to consider them or there were filibusters or actual votes against them. On several occasions these executive orders were so important and far-reaching that lawsuits were filed against them and eventually the Supreme Court ruled that it was unconstitutional for the President to usurp the authority of Congress by unilaterally proclaiming laws when Congress had either refused to consider them or had actually voted against them.

But it's very difficult and expensive to file a lawsuit. It takes years before a lawsuit works its way through the appeals courts to reach the Supreme Court. And the Supreme Court takes fewer than 100 cases per year. Great damage can be done over the years even if an executive order is eventually considered and nullified by the Court. That's why the best way to deal with a bad executive order is for a new President to issue his own executive order nullifying it, or for Congress to include nullifying language in legislation that provides funding for the executive agency that was responsible for creating or administering it.


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PRESIDENT-ELECT TRUMP HAS PROMISED TO NULLIFY HUNDREDS OF OBAMA'S REGULATIONS AND EXECUTIVE ORDERS. REPUBLICANS WILL CONTROL BOTH THE SENATE AND HOUSE IN THE 115TH CONGRESS. THE PRESIDENT AND CONGRESS NEED TO KNOW WHICH ITEMS TO PUT ON THEIR LISTS TO NULLIFY. PLEASE TELL THEM THAT 43 CFR 50 BELONGS ON THAT LIST.

Mr. Trump's campaign for President in 2016 included a pledge that he will give top priority to overturning thousands of Obama's overreaching, unconstitutional executive orders.

Immediately following his victory on November 8, President-elect Trump's transition team began assembling a list of regulations and executive orders for President Trump to nullify by issuing his own executive orders promptly after he takes office on January 20, 2017. In addition, Republicans will continue to hold the majority in both the Senate and House. They take office at the beginning of January, and may then begin enacting legislation to nullify some of Obama's regulations and executive orders.

What follows is an effort to ensure that 43 CFR 50 -- the most outrageous and destructive law to affect Hawaii that was unilaterally proclaimed by the Obama administration -- will come to the attention of members of the Trump transition team, and the cabinet members and staffers in the Trump administration after January 20, and members of the upcoming 115th Congress and their staffers, will place 43 CFR 50 on their lists of regulations and executive orders to be nullified.

PLEASE CONTACT MEMBERS OF THE TRUMP TRANSITION TEAM, AND HIS FUTURE CABINET MEMBERS FOR THE DEPARTMENT OF INTERIOR AND DEPARTMENT OF JUSTICE; ALONG WITH SENATORS AND REPRESENTATIVES AND THEIR STAFFERS WHO WILL BE SERVING IN THE 115TH CONGRESS, TO ENSURE THE PROMPT REPEAL OF THE NEWLY PROCLAIMED REGULATION 43 CFR 50 THAT WOULD AUTHORIZE FEDERAL RECOGNITION OF A PHONY "NATIVE HAWAIIAN" INDIAN TRIBE. PLEASE ALSO CONTACT INFLUENTIAL CONSERVATIVE WRITERS AND LEGAL EXPERTS WHO HAVE PREVIOUSLY PUBLISHED ARTICLES OPPOSING THE "AKAKA BILL" AND THE NEW DEPARTMENT OF INTERIOR RULE 43 CFR 50. BELOW IS INFORMATION ABOUT 43 CFR 50, LINKS TO PUBLISHED ANALYSES IN OPPOSITION TO IT, AND LINKS TO PUBLISHED ARTICLES OPPOSING THE AKAKA BILL INCLUDING NAMES OF THEIR AUTHORS WHO SHOULD BE CONTACTED.


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WHAT IS 43 CFR 50 AND WHY IS IT BAD? -- A GENERAL EXPLANATION

The single most important item regarding Hawaii that should be on both the executive and legislative lists for repeal is the Department of Interior's new "rule" that provides a pathway for federal recognition of a Hawaiian tribe that has never existed but is now in the process of being created in such a way as to comply with provisions in the new DOI regulation. That DOI rule is the Obama administration's executive order implementing the provisions of the failed Hawaiian Government Reorganization bill (known informally as the Akaka bill) that was active in Congress for 13 years (2000-2012) -- the bill in different forms was passed by the House in three different Congresses but was blocked in the Senate by holds from individual Republican Senators as well as a 2-day Republican filibuster with many hours of floor debate on a failed motion to proceed. Although the bill repeatedly failed in Congress throughout its 13 year history, despite about $33 Million in lobbying and advertising, President Obama and his Department of Interior have proclaimed such a law by executive order.

Appropriate leaders of the incoming executive and legislative branches should begin work as soon as possible to ensure that the Obama DOI rule creating a Hawaiian tribe is included on lists of executive actions to be repealed promptly. If the rule is not repealed, it will remain on the books as a "sleeper" from now and forever, allowing federal recognition of a Hawaiian tribe to happen suddenly whenever a small percentage of ethnic Hawaiians might choose to satisfy the rule's requirements.

Small percentage? It should be noted that in Census 2000 there were 401,000 people who checked the box as having "Native Hawaiian" ancestry, while in Census 2010 there were 527,000 of them. A reasonable extrapolation of the population growth to the end of 2016 would put the number of "Native Hawaiians" at 600,000.

The DOI rule would allow federal recognition to be granted if as few as 30,000 of them agree on a referendum (including as few as 9,000 of an estimated 60,000 who have at least 50% Hawaiian native blood quantum).

It is possible (but not likely) that the Bishop Bill H.R.3764 now pending in the House (to reassert Congressional authority over the Department of Interior regarding federal recognition of tribes) might be enacted during the lame duck session either directly or by incorporation into an omnibus budget bill that appropriates funds for the Department of Interior; but time is probably too short for H.R.3764 to pass, and it might need to be strengthened to specifically include the repeal of the DOI rule 43 CFR 50 pertaining to Hawaii.

The Department of Interior and Bureau of Indian Affairs grant federal recognition to Indian tribes whether or not the citizens of a state or county like it. Most tribes have only a few hundred or perhaps a few thousand members, and their tribal lands are usually located in remote areas where there would not be much controversy over conflicting laws and jurisdictions. But in Hawaii, 20% of all the people have at least one drop of Hawaiian native blood which makes them eligible to join the tribe. No other state has such a large percentage of "Indians", let alone such a large percentage eligible to join a single tribe. And "Native Hawaiians" are thoroughly assimilated, intermarried, and widely dispersed throughout all neighborhoods and Census tracts. Jurisdictional conflict would be a nightmare. Ethnic Hawaiians are already a significant portion of the state legislature and county councils -- as tribal leaders they would sit on both sides of the negotiating table in a massive conflict of interest in negotiations over how much land and money will be given to the tribe. The trouble is not only for the State of Hawaii. The trouble would also be for the federal government and hundreds of recognized tribes who would now see America's largest federally recognized Indian tribe with 600,000 people eligible to joint it and demand government handouts at taxpayer expense and in competition with the genuine tribes. To understand the dimensions of this problem, consider the impact on America and the States if 40 Million Americans who have at least one drop of African blood were allowed to create their own "Nation of New Africa" tribal government and demand a separation of their own lands and laws. The impact on Hawaii of creating a race-based tribe would be 50% worse than that, because the 20% of Hawaii's people who have Hawaiian blood is 50% greater than the 12-13% of America's people who have African blood.


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WHAT DOES 43 CFR 50 ACTUALLY SAY? WHAT DOES THE U.S. COMMISSION ON CIVIL RIGHTS SAY ABOUT IT? WHAT DO REPUBLICANS AND OTHER CONSERVATIVE COMMENTATORS SAY ABOUT IT?

Here is the Final Rule as published by the Department of Interior in the Federal Register on October 14, 2016, pp. 71278-71323. This rule is effective November 14, 2016, 30 days after publication in the Federal Register. The lengthy preamble provides an explanation of how the rule allegedly responds to various comments or criticisms made during a public comment period, while the actual rule itself begins on page 71318.

43 CFR 50 "Procedures for Reestablishing a Formal Government-to-Government Relationship With the Native Hawaiian Community"

In a format that is easy to read, 43 CFR 50 is at
http://tinyurl.com/jyvdbwg

To see the rule as it was actually formatted in the Federal Register, go to
http://tinyurl.com/znjgwkr

September 16, 2013: 4 of the 8 members of the U.S. Commission on Civil Rights jointly wrote a strongly-worded 5-page letter to President Obama opposing any attempt to use executive action to give federal recognition to a Hawaiian tribe. The letter reiterated reasons for opposing the concept of the Akaka bill, expressed in official statements by USCCR in previous years, and added objections to the new concept of using executive authority to do what Congress has rejected for 13 years. The USCCR letter, dated September 16, 2013 on official letterhead and bearing the signatures of the 4 Commissioners, can be seen at
http://tinyurl.com/nnqtnvt

There is important testimony against the U.S. Department of Interior proposed regulation for federal recognition of a phony Hawaiian tribe. Testimony was submitted regarding the Preliminary Notice of Proposed Rulemaking, and also regarding the revised Notice of Proposed Rulemaking. See especially detailed testimony by Judicial Watch; Hans A. von Spakovsky (Heritage Foundation); Kenneth Conklin, Ph.D.; John Breitmeier; Grassroot Institute of Hawaii; Paul M. Sullivan, and others.
http://tinyurl.com/zvrtxfd


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DURING THE YEARS 2000-2012 THE HAWAIIAN GOVERNMENT REORGANIZATION BILL (AKAKA BILL) WAS ACTIVE IN BOTH CHAMBERS OF CONGRESS, AND DURING 2013-2014 THERE WERE ACTIONS IN THE HAWAII LEGISLATURE LEADING UP TO 43 CFR 50. THERE WERE HUNDREDS OF PUBLISHED ARTICLES AND TESTIMONY ABOUT IT BY CIVIL RIGHTS EXPERTS, REPUBLICANS, CONSERVATIVE COMMENTATORS, SENATORS AND CONGRESSIONAL REPRESENTATIVES. Numerous links are provided below to the author names and full text of the most important published commentaries on both the failed Akaka bill and the recently adopted DOI rule. PLEASE CONTACT AS MANY OF THE AUTHORS AND THE PUBLICATIONS AS YOU CAN, TO ASK THEM TO ENSURE THAT THE DOI RULE GETS REPEALED AS SOON AS POSSIBLE. It must not be forgotten among a long list of executive orders and regulations of national significance that need to be repealed.
AN INDEX FOR YEARS 2000 - 2014 IS AT
http://tinyurl.com/5eflp

White House formal statement on official stationery, October 22, 2007:
http://tinyurl.com/34ws68
"The Administration strongly opposes passage of H.R. 505. As the U.S. Civil Rights Commission recently noted, this legislation "would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege." The President has eschewed such divisive legislation as a matter of policy, noting that "we must ... honor the great American tradition of the melting pot, which has made us one nation out of many peoples." This bill would reverse this great American tradition and divide the governing institutions of this country by race. If H.R. 505 were presented to the President, his senior advisors would recommend that he veto the bill. H.R. 505 would grant broad governmental powers to a racially-defined group of "Native Hawaiians" to include all living descendents of the original, Polynesian inhabitants of what is now modern-day Hawaii. Members of this class need not have any geographic, political, or cultural connection to Hawaii, much less to some discrete Native Hawaiian community. Proponents of the bill seek to analogize Native Hawaiians to members of existing Indian tribes. As one Federal court recently explained, however, "the history of the indigenous Hawaiians ... is fundamentally different from that of indigenous groups and federally-recognized Indian Tribes in the continental United States." Closely related to those policy concerns, H.R. 505 raises significant constitutional concerns that arise anytime legislation seeks to separate American citizens into race-related classifications rather than according to their own merits and essential qualities. In the particular context of Native Hawaiians, the Supreme Court has invalidated state legislation containing similar race- based qualifications for participation in Native Hawaiian governing entities and programs. Given the substantial historical and cultural differences between Native Hawaiians as a group and members of federally recognized Indian tribes, the Administration believes that tribal recognition is inappropriate and unwise for Native Hawaiians and would raise serious constitutional concerns. The Administration strongly opposes any bill that would formally divide sovereign United States power along suspect lines of race and ethnicity."

In January 2006 the U.S. Commission on Civil Rights held a hearing on the Akaka bill at its Washington D.C. headquarters. Two supporters and two opponents presented testimony with cross-examination by Commissioners. In May the Commission issued its booklet-length report opposing the Akaka bill. "The Commission recommends against passage of the Native Hawaiian Government Reorganization Act of 2005, or any other legislation that would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege." The complete report approved by a 5-2 vote including the controversial "findings", and some news reports and commentaries, are at
http://tinyurl.com/ocap3

August 28, 2009: U.S. Commission on Civil Rights letter to Congressional leaders once again blasted the Akaka bill: calling it unconstitutional, racially divisive, setting a bad precedent, and contrary to the multiracial polity of the Hawaiian Kingdom. On official stationery signed by Commissioners.
http://tinyurl.com/kqt39k

Letter from James Sensenbrenner, Chairman of House Judiciary Committee, to Speaker Dennis Hastert, July 19, 2001
http://tinyurl.com/49p55

History of the Akaka Bill July 17-31, 2005 -- intense activity in the Senate, including new holds by 6 Senators, resulted in cloture petition; House Judiciary subcommittee hearing on the bill's (un)constitutionality
http://tinyurl.com/jjneo9f

Tuesday July 19, 2005 a hearing on the Akaka bill's (un)constitutionality was held by the U.S. House of Representatives Committee on Judiciary, subcommittee on the Constitution. Senator Kyl took the very unusual step of a Senator submitting his own testimony to that House subcommittee. Senator Kyl's 14-page testimony opposing the Akaka bill can be downloaded from:
http://tinyurl.com/bdayp

A webpage about the House Judiciary subcommittee hearing including the Chairman's own summary is available at:
http://tinyurl.com/c3kg9


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Ken_Conklin@yahoo.com

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