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SUMMARY OF LESS THAN 5000 CHARACTERS FOR REGULATIONS.GOV, TO INTRODUCE PDF FILE CONTAINING THE COMPLETE COMMENT
To: Secretary Ryan Zinke,
U.S. Department of Interior
August 28, 2017
From: Kenneth R. Conklin, Ph.D.
Re: Repeal of Obama midnight regulation 43 CFR Part 50 --
Procedures for reestablishing a formal government-to-government relationship with the Native Hawaiian community.
Dear Secretary Zinke,
Please find a way to rescind 43 CFR Part 50 -- Procedures for reestablishing a formal government-to-government relationship with the Native Hawaiian community.
The "Final Rule" was published in the Federal Register on October 14, 2016, and took effect on November 14.
Because this was a "midnight regulation" finalized in the closing weeks of the Obama administration, the easiest way to rescind it would be to use the Congressional Review Act. However, it seems likely that the time limit for CRA has already expired. It would be wonderful if a simple executive order could repeal it, under President Trump's 2-for-1 rule (repeal two existing regulations for every new one). But 43CFR50 was adopted through a process that included a round of public hearings in Hawaii and several states, and two periods of written comments; thus a similar process might be necessary to repeal it.
43CFR50 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 radically 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 proclaimed it into law.
43CFR50 is gross overreaching by the Obama administration, violating the separation of powers. The Indian Reorganization Act of 1934 envisioned allowing the Department of Interior to grant federal recognition to tribes that already existed at that time; it does not allow the DOI to create new tribes out of thin air. Ethnic Hawaiians were never organized as a tribe. The Kingdom of Hawaii was an internationally recognized multiracial nation in which Caucasians and Asians with no native blood were subjects (citizens) of the Kingdom with full voting and property rights, by virtue of being born in Hawaii or taking an oath of loyalty to the King. At various times most cabinet ministers, nearly all department heads, and perhaps one-third of the Legislature had no native blood. But now comes 43CFR50 proposing to create a tribe exclusively based on race. There was never a unified government ruling the entirety of the Hawaiian islands where either the government or its citizenry was racially exclusionary.
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 and whenever a future President and DOI Secretary are Democrats.
Small percentage? It should be noted that in Census 2000 there were 401,000 people nationwide who checked the box as having "Native Hawaiian" ancestry, while in Census 2010 there were 527,000 of them. According to 43CFR50, all of them nationwide are eligible to join the Hawaiian tribe. 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 vote yes in a referendum -- small percentage indeed! (five percent).
The Akaka bill had the support of every Democrat in the House and Senate for 13 years, and was blocked only by courageous Republicans including a 2-day Senate filibuster. The concepts of racial separatism and ethnic nationalism for Hawaii are Democrat creations during a history of 124 years, which Republicans have blocked. 43CFR50 is a creation of the Obama administration in cahoots with an overwhelmingly Democrat legislature and Congressional delegation from Hawaii. We need Republicans to once again rescue Hawaii and the U.S.A.!
This has been a summary limited to 5000 characters. For the complete detailed comment including extensive references to authoritative sources, please read the attached pdf file which is also available at
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