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Scheduled to take effect Tuesday, three days after the 95th anniversary of the Hawaiian Homes Commission Act being signed into law, the U.S. Department of the Interior’s Final Rule on Land Exchange Procedures and Procedures to Amend the HHCA is supposedly aimed at clarifying how Interior reviews land exchanges involving Hawaiian home lands and amendments to the HHCA.

What the rule actually does is extend the authority of the federal government in significant ways and at the same time stops short of ensuring the United States fulfills its duty as trustee of public lands transferred to the state at the time of statehood.

On May 8, 2015, Interior sent out a notification announcing proposed rules regarding the Hawaiian Home Lands Trust in order to remove ambiguities the state faces in the administration of the HHCA. Initially, comments were required to be submitted by July 13, 2015, but that deadline was later extended, largely in response to Hawaiian Homes Commission (HHC) Resolution Number 283 titled “Urging the United States Department of the Interior to Consult with the Department of Hawaiian Home Lands and the Beneficiaries of the Hawaiian Homes Commission Act Regarding Proposed Rules 43 C.F.R. Parts 47 & 48.”

One of the ironies in this process is that both the proposed rule and final rule defines the term “consultation,” yet there was a lack of meaningful consultation beyond the standard federal notification and comment period.

The HHC resolution resulted in an extension of the deadline, and a homestead leaders meeting coordinated by the Department of Hawaiian Home Lands (DHHL) resulted in an hour-and-a-half conference call with the Principal Deputy Assistant Secretary Kris Sarri and approximately 50 homestead leaders, commissioners and DHHL staff on Aug. 8. The vast majority of the nearly 10,000 lessees and over 27,000 applicants conceivably were consulted through the standard federal notification and comment period.

Political insiders, however, had extensive influence over the content. Two years prior to the notification, media outlets reported that Robin Danner, president of the Sovereign Councils of the Hawaiian Homelands Assembly and former president of the Council for Native Hawaiian Advancement, asked President Obama to authorize Interior to start the process for developing federal regulations. Danner was acting as one of a dozen Asian-American and Pacific Islander advocates from across the country who were invited by the White House to meet with the president as part of Asian Pacific American Heritage Month.

After the final rule was published on May 13, 2016, social media posts indicated that Interior presented the first and last page of the final rule to Danner for her advocacy that led to the promulgation of these rules.

Despite a lack of meaningful consultation or an open discussion process, 516 comments were received by the DOI in response to the proposed rule. Approximately 207 were in support, 241 were in opposition and the remaining comments provided more substantive detailed comments with recommended revisions.

The comments in support range from a simple “yes” to more detailed responses explaining that there have been no federal rules to implement the HHCA for the last 95 years and that these amendments may help beneficiaries to recover and receive what is rightfully theirs. There was support for rules to bring clarity to land exchange procedures and amendments to the HHCA and support for improving federal oversight.

The comments in opposition primarily objected to federal rulemaking based on the assertion that the U.S. violated and continues to violate laws by illegally occupying the Hawaiian Islands and is thus without jurisdiction. There were also concerns shared of the influence of political insiders.

The remaining substantive comments detail concerns that the consultation is discretionary instead of mandatory, the proposed rules include requirements that unduly burden DHHL and have an unintended effect of making it more difficult for critical amendments to the HHCA, and pointing out that the last time the DOI engaged in an active in-depth review of the HHCA/DHHL was the 1983 Federal-State Task Force.

Clarity, Transparency And Unanswered Questions

Throughout the summary and details that accompany the final rule, Interior indicated that this rule is to provide “clarity” or “clarifies the role of the secretary in land exchanges and second, clarifies the process for the Secretary’s review of State-proposed amendments to the HHCA.” The details also explain that the rule will “make the Secretary’s actions more transparent to the public.”

Other details note that the rule “merely formalizes the process the Secretary will use in reviewing and approving land exchanges and in reviewing proposed amendments to the HHCA under existing law, and clarifies the documentation that the HHC Chairman, an officer of the State of Hawaii, must submit to implement existing law” and “merely assist in the administration of the HHCA.”

In the face of this claim to simply provide clarity and transparency, this final rule goes further in defining terms only found in the final and not the proposed rule that are also not defined in either the HHCA, the Hawaiian Home Lands Recovery Act or even the Administrative Rules of DHHL. These terms include the following:

“HHCA Beneficiary Association means an organization controlled by beneficiaries who submitted applications to the DHHL for homesteads and are awaiting the assignment of a homestead; represents and serves the interests of those beneficiaries; has as a stated primary purpose the representation of, and provision of services to, those beneficiaries; and filed with the Secretary a statement, signed by the governing body, of governing procedures and a description of the beneficiaries it represents.

Political insiders may assert that the filing with the secretary now serves as an acknowledgement akin to federal recognition, but given the limited scope of these rules, such a claim would be a far stretch.

“Homestead Association means a beneficiary controlled organization that represents and serves the interests of its homestead community; has as a stated primary purpose the representation of, and provision of services to, its homestead community; and filed with the Secretary a statement, signed by the governing body, of governing procedures and a description of the territory it represents.”

While some may contend that of course the HHCA didn’t include these terms as a 95-year-old law, the Hawaiian Home Lands Recovery Act was enacted in 1995 and amendments to DHHL’s Administrative Rules became effective in 1998 and 2004, well within the time to properly define homestead or beneficiary association at the community level where face-to-face meetings are held on each island.

The Sovereign Councils of the Hawaiian Homelands Assembly in its testimony in support included a request to add a definition of the term “homestead association,” but no request was made to add the term “HHCA Beneficiary Association.” Additionally, the requirement for the association to file a statement with the secretary seems to undermine the autonomy these associations currently exercise in their communities.

Political insiders may intend to assert that the filing with the secretary now serves as an acknowledgement akin to federal recognition, but given the limited scope of these rules pertaining to land exchanges and amendments to the HHCA, such a claim or assertion would be a far stretch.

It is also unclear whether more than one homestead association will be allowed to register for the same territory. For example, Nanakuli homestead has two associations: the Nanakuli Hawaiian Homestead Community Association and the Ahupuaa o Nanakuli Hawaiian Homestead. Can both entities register for the same territory? Also: What happens when an association dissolves, as a small number of associations have done?

Who Are These Rules Intended To Serve?

Section 204 of the HHCA authorizes DHHL, with the approval of the secretary of the Interior, to “exchange the title to available lands for land, privately or public owned, of an equal value” in order to consolidate its holdings or to better effectuate the purposes of the HHCA.

The Hawaiian Home Lands Recovery Act has a section that just addresses land exchanges, whether recommended by the HHC chair or initiated by the secretary. The HHLRA requires that if the HHC chair recommends for approval an exchange of Hawaiian Home Lands, then the chair must submit a report containing a description of the acreage and fair market value of the lands involved, surveys and appraisals prepared by DHHL, if any, and an identification of the benefits to the parties of the proposed exchange to the secretary of Interior. The secretary shall approve or disapprove the proposed exchange.

The final rule details laws and regulations that apply to land exchanges, the factors that the secretary will consider in analyzing a land exchange, the documentation to include in a land exchange proposal and packet and the minimum requirements for appraisals used in a land exchange.

The final rule also recommends that “the Chairman and the non-Chairman party in the exchange meet with the Secretary before finalizing a land exchange proposal and signing an agreement to initiate the land exchange.” At the meeting, the parties would informally discuss “(1) The review and processing procedures for Hawaiian home lands exchanges; (2) Potential issues involved that may require more consideration; or (3) Any other matter that may make the proposal more complete before submission.”

This final rule expands the role of the secretary of Interior from one of approval or disapproval of a proposed land exchange to an active participant at a meeting among the parties of a land exchange. This role is inappropriate.

This final rule clearly expands the role of the secretary of Interior from one of approval or disapproval of a proposed land exchange to a much more active participant at a meeting among the parties of a land exchange. This role is inappropriate and way beyond the scope envisioned under the HHCA and Hawaiian Home Lands Recovery Act. On the one hand, consultation does not require face-to-face meetings for beneficiaries. Yet on the other hand, a meeting with the secretary is recommended for a land exchange. This double standard calls into question who is truly served by this final rule.

It is also important to note that several commenters expressed concerns about land exchanges and one opposed any further exchanges until all presently recorded land inventories are defined and completed.

Section 4 of the Admissions Act requires the consent of the United States for any amendment to the HHCA, unless the amendment complies with several enumerated exceptions. The Admissions Act specifically notes that the Hawaiian home-loan fund, the Hawaiian home-operating fund, and the Hawaiian home-development fund shall not be reduced or impaired by any amendment. The proposed rule acknowledges the unique requirement of these funds by referencing these three funds as Special Trust Funds and requiring congressional approval if the Special Trust Funds are reduced or impaired.

The final rule expands this oversight to all funds established in HHCA section 213, which includes the Hawaiian home loan fund, the Hawaiian home general loan fund, the Hawaiian home operating fund, the Hawaiian home administration account, the Hawaiian home receipts fund, the Hawaiian home trust fund and the Native Hawaiian rehabilitation fund. Even if an argument can be made that this expansion is intended to ensure all the funds are not reduced or impaired, the larger issue is whether Interior has the authority to expand their review in this manner beyond the requirement in the Admissions Act and what impact such action would have on the statehood compact.

The most problematic aspect of the final rule is that it doesn’t assist with the longstanding issues that plague the HHCA. By way of comparison, the 1983 Federal-State Task Force on the HHCA issued a final report with findings and recommendations that ultimately resulted in the state and federal governments resolving past breaches of trust.

One comment submitted on behalf of four native Hawaiian beneficiaries who have sued representatives of the state and federal government to advance the rights of native Hawaiians noted that the proposed rule and ultimately the final rule fail to address section 203 of the Hawaiian Home Lands Recovery Act or the settlement of federal claims and the $16-$17 million in mid-1990s value yet to be resolved.

This same comment also points out that section 205(e)(1) of the HHLRA required the secretary to conduct a survey of all Hawaiian Home Lands based on the report entitled “Survey Needs for the Hawaiian Home Lands” issued by the Bureau of Land Management of the Department of Interior and dated July 1991 and the question remains whether this survey was in fact completed.

These outstanding issues remain unresolved and ultimately beg the question of who these rules are intended to serve.

It’s interesting to note that the summary and details that accompany the final rule provide that Parts 47 and 48 will assist the secretary in carrying out responsibilities and final rule 43 CFR 47.50(a)(8)(i) is to assist the secretary in identifying all costs.

In that light, the rules actually detail the documentation to be submitted to the secretary for any land exchange or amendments to the HHCA, thereby serving the interests of the secretary of the Interior and leaving unresolved the interests of native Hawaiian beneficiaries. Even though nearly 10,000 lessees have realized Kuhio’s vision of returning native Hawaiians to the land, 95 years later, over 27,000 applicants continue to wait.