by
Kenneth R. Conklin, Ph.D.
December 5, 2016
The Trump transition team, and Republicans in Congress, are pledging to eliminate large numbers of regulations and executive orders unilaterally proclaimed by the Obama administration, especially those published during the closing months of his reign.
The main purpose of this memo is to alert the Trump transition team and cabinet, and Republican leadership in Congress, about one particular item which must be included on the list of Obama "midnight regulations" needing prompt attention to be rescinded. Among all the Obama actions, this is the one that threatens the greatest damage to the people of Hawaii and our long-settled laws, and would be extremely costly to U.S. taxpayers.
The Heritage Foundation, U.S. Civil Rights Commission, Republicans in Congress, and conservative thought-leaders have spent seventeen years fighting the Hawaiian Government Reorganization bill, and its recent incarnation as a unilateral Obama administration lame-duck midnight regulation proclaimed by the Department of Interior -- 43CFR50.
This memo provides three kinds of information:
1. Identify and describe the new Obama Department of Interior "final rule" 43 CFR 50, and how it would achieve by executive fiat what Congress repeatedly rejected during 13 years of contentious open debate and unethical secret maneuvering;
2. List three different methods whereby that regulation might be rescinded, in hopes that all three methods will be used to ensure success. An article in the Honolulu Star-Advertiser of December 5, 2016 displays very clearly that leaders of the phony tribe are in the process of raising millions of dollars to hold a ratification of their race-based constitution as required under terms of the "final rule", and takes note of legal issues related to whether President Trump would have the power to rescind (by means of a mere executive order) the "final rule" 43 CFR 50 that was adopted by a lengthy process that included public comments and revisions.;
3. Provide names of authors, and published documents, showing that leaders of the Heritage Foundation, the U.S. Commission on Civil Rights, Republicans in Congress, and well-known conservative writers have consistently opposed the concept of this regulation during a period of 17 years that it has been the focus of legislation and bureaucratic maneuvering.
Please circulate this memo widely, to all Republican Presidential and Congressional decision-makers and thought-leaders.
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1. What is Department of Interior "final rule" 43 CFR 50? When was it proclaimed? How is it related to the Hawaiian Government Reorganization bill (also known as the "Akaka bill") that Congress rejected repeatedly during years 2000 through 2012? What threat does it pose to the legal and social system in Hawaii, and to the federal budget?
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
That DOI regulation 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 Congressional bienniums 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.
The primary purpose of the Akaka bill from 2000-2012, and the DOI rule 43 CFR 50, is to provide protection for a plethora of racial entitlement programs that benefit ethnic Hawaiians. Several years ago the Grassroot Institute of Hawaii published a list and descriptions of more than 800 such programs, all of which are probably unconstitutional under the 14th Amendment equal protection clause but have not yet had a trial on the merits because of court dismissals due to issues of "standing" and the "political question" doctrine. Racial entitlement programs which are unconstitutional under the 14th Amendment are allowable for federally recognized Indian tribes; hence the desperate attempt to invent a brand new Indian tribe in a place where there has never been one. (Unlike any Indian tribe, the Kingdom of Hawaii, 1810-1893, was multiracial, with Caucasians having full voting and property rights and occupying a large percentage of leadership positions as department heads, judges, and members of the legislature [both elected and appointed]. More than a thousand Chinese also became naturalized subjects of the Hawaiian Kingdom. Following the Hawaiian revolution of 1893, the Republic of Hawaii continued as a multiracial independent nation, internationally recognized as the rightful government, until 1898 when a Treaty of Annexation offered by Hawaii was approved by Congress.
Appropriate leaders of the incoming U.S. executive and legislative branches should begin work as soon as possible to ensure that the Obama DOI rule authorizing creation of a phony 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 and gain recognition from a future Democrat administration.
Small percentage? It should be noted that in Census 2000 there were 401,000 people throughout the 50 states who checked the box as having "Native Hawaiian" ancestry, while in Census 2010 there were 527,000 of them. A reasonable extrapolation of that 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 nationwide agree in a referendum (including as few as 9,000 of an estimated 60,000 who have at least 50% Hawaiian native blood quantum).
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. Yet there is no requirement in 43 CFR 50 for any vote of approval by the citizens of Hawaii before creating a Hawaiian tribe whose primary objective would be to divide the lands and people of Hawaii along racial lines and demand land and money at everyone else's expense (including the U.S. government).
"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. Federal laws and special rights for Indian tribes would suddenly become effective in Hawaii where there have never been Indian tribes, thereby causing massive disruption to Hawaii's legal system on such issues as marriage, divorce, child custody, labor law, zoning regulations, taxation, criminal and civil jurisdiction, etc.
No federally recognized Indian tribe has 600,000 people eligible to join it. As the largest tribe, Hawaiians would elbow out the genuine tribes at the table where the turkey of government handouts gets carved; and the U.S. deficit would grow.
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 join 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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2. There are three different methods whereby 43 CFR 50 might be rescinded. Legal experts must judge the strengths, weaknesses, and time constraints of each method. But there's no harm in implementing all three methods to make sure the job gets done in a way that will withstand any challenge.
(a) The Congressional Review Act allows Congress to pass a joint resolution that overturns any recently proclaimed administrative regulation. The joint resolution must be passed within 60 legislative days after the regulation has been finalized and reported to Congress. There are technicalities concerning the definition of a "legislative day"; and when a regulation has been finalized (for 43 CFR 50, was that October 14, the day it was published in the Federal Register; or was that November 14, the day it was proclaimed that it would take effect?); and when it was reported to Congress. For details see "5 U.S. Code Chapter 8 - CONGRESSIONAL REVIEW OF AGENCY RULEMAKING" by Cornell Law at
https://www.law.cornell.edu/uscode/text/5/part-I/chapter-8
One difficulty is that the "final rule" 43 CFR 50 includes a proclamation under its own authority that would seem to make itself immune from the Congressional Review Act. It says "This final rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. It will not result in the expenditure by state, local, or tribal governments in the aggregate, or by the private sector, of $100 million or more in any one year. The rule's requirements will not cause a major increase in costs or prices for consumers, individual industries, Federal, state, or local government agencies, or geographic regions. Nor will this rule have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises." Is it lawful for a "final rule" to exempt itself from the Congressional Review Act merely by making assertions which are not substantiated by evidence? Perhaps a series of lawsuits will be needed, during a period of many years, before 43 CFR 50 could be finally rescinded under terms of the Congressional Review Act. And after the passage of many years the Hawaiian tribe would already be well established and entrenched even if courts eventually rule that it was established by illegal or improper means. So it would be unwise to rely solely upon the Congressional Review Act to get rid of 43 CFR 50.
There has been some discussion in the media of the fact that under current law it requires an individual joint resolution to be passed for each regulation to be overturned, but that in view of the large number needing to be rescinded Congress might quickly pass a new law allowing a long list of regulations to all be rescinded simultaneously through a single joint resolution of disapproval.
Using the Congressional Review Act is clearly under the jurisdiction of Congress; therefore, it is the Republican leadership in the House and Senate who must be contacted to request that 43 CFR 50 be included as a target for an individual or large-scale resolution of disapproval.
(b) President Trump will have the power to issue an executive order to amend or rescind any executive order previously issued by President Obama. What's not clear is whether a (mere) executive order has the power to rescind a "final rule" which was adopted through a lengthy process. In the case of 43 CFR 50 that process included an advance notice (warning) that there would be a proposal for rulemaking, followed by a period of public comment in which people were invited to answer specific questions about what sort of rule might be proposed and what its provisions would be; followed by the actual contents of a proposed rule; followed by another period of public comment; followed by publication of a "final rule" in the Federal Register which included detailed responses to many of the public comments.
A news report in the Honolulu Star-Advertiser of December 5, 2016 displays very clearly that leaders of the phony tribe are in the process of raising millions of dollars to hold a ratification of their race-based constitution as required under terms of the "final rule", and takes note of legal issues related to whether President Trump would have the power to rescind (by means of a mere executive order) the "final rule" 43 CFR 50 that was adopted by a lengthy process that included public comments and revisions. The article is copied in full at the bottom of this webpage; scroll down to read it.
If we hope that President Trump will issue an executive order to rescind 43 CFR 50 and if we hope it will have the legal power to get the job done in a timely way, the Trump transition team should get the analysis underway promptly. The longer President Trump delays in issuing an executive order, the more likely it becomes that a group of ethnic Hawaiians will succeed in holding an election of a tribal government and ratification of a tribal Constitution as required to receive federal recognition under terms of 43 CFR 50
43 CFR 50 specifies the requirements that must be met in order for the Secretary of Interior to make a decision to grant or not to grant federal recognition after a Hawaiian tribe has submitted a request for it, and a flexible timetable for the decision to be announced. We might speculate that any Secretary of Interior under President Trump would find reasons to announce that an application for federal recognition has been rejected. But if President Trump fails to rescind 43 CFR 50, then it remains on the books as a "sleeper" regulation which could be invoked under a future Democrat President whose Secretary of Interior would promptly grant a renewed application for federal recognition. It would be very dangerous to let 43 CFR 50 remain on the books.
(c) If the Congressional Review Act is unsuccessful in rescinding 43 CFR 50, and if an Executive Order is not forthcoming from President Trump or is unsuccessful in rescinding 43 CFR 50, there is a third way to get the job done. The budget for the Department of Interior must be passed by Congress. And when that budget cycle comes to an end, another budget must be passed. Etc. On each occasion Congress has a chance to insert language into the budget that would prohibit the Department of Interior from implementing 43 CFR 50; or language that would outright repeal 43 CFR 50. However, if 43 CFR 50 remains on the books long enough for a Hawaiian tribe to be granted federal recognition, Congress might be unable to later "unrecognize" that tribe. Article 1, section 9, clause 3 of the Constitution says that Congress cannot pass any ex post facto law; however, other provisions of the Constitution give Congress plenary power over the Indian tribes, which has been construed to include the power to confiscate tribal lands or even to terminate a tribe.
In view of the uncertainties over the effectiveness of each method (a), (b), and (c) for rescinding 43 CFR 50, and the difficulties caused by delay, it would be best to use all three methods and to do so promptly.
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3. Leaders of the Heritage Foundation, Republicans in Congress, the U.S. Commission on Civil Rights, and well-known conservative writers have consistently opposed the concept of 43 CFR 50 during a period of 17 years that it has been the focus of legislation and bureaucratic maneuvering. Let's remind them of the urgent need for continued opposition and vigilance.
Since April 4, 2013 the president of the Heritage Foundation has been Jim DeMint. As a U.S. Senator Jim DeMint fought hard against the Hawaiian Government Reorganization bill, also known as the Akaka bill.
On March 5, 2010, "Human Events" magazine reported "Sen. Jim DeMint (R.-S.C.) has already put a hold on the Senate bill and vowed to do whatever necessary to stop it, calling it 'racially divisive and discriminatory.' Sen. Lamar Alexander (R.-Tenn.) and DeMint's wingman on the issue, said after the House vote, "In America, we say, 'One nation, under God, indivisible, with liberty and justice for all,' not 'Many nations, divided by race with special privileges for some.'"
http://humanevents.com/2010/03/05/senator-akakas-native-hawaiian-bill-going-nowhere/
February 23, 2010 Press release from Senator Jim DeMint (R, SC)
Today, U.S. Senator Jim DeMint (R-South Carolina), chairman of the Senate Steering Committee, made the following statement after the U.S. House of Representatives voted 245-164 to pass a bill that would create a race-based government for Native-Hawaiians living throughout the United States. "The House vote this evening is deeply disappointing. We should stand together in opposition to racially divisive and discriminatory laws like this. The Native Hawaiian bill is unconstitutional and violates the national unity of E Pluribus Unum. I will use all the tools available in the Senate to ensure that this bill does not become law."
Before Jim DeMint, the President of the Heritage Foundation was Ed Feulner. Mr. Feulner wrote repeatedly over the years in opposition to the Akaka bill. The following two articles are no longer available at their original links, but full text of each article remains available on Ken Conklin's compilation. Scroll down at
https://www.angelfire.com/planet/bigfiles40/AkakaPublOpposSep2005May2006.html
State of the Union
by Ed Feulner, President, The Heritage Foundation
The Conservative Voice, September 5, 2005
"'E pluribus whatever' hardly a unifying national motto"
by Ed Feulner, President of the Heritage Foundation,
Chicago Sun-Times, May 31, 2006
Hans A. von Spakovsky is a Senior Legal Fellow and Manager of the Election Law Reform Initiative in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. He has written detailed legal and policy arguments against the Department of Interior's creation of 43 CFR 50. See the following:
LEGAL MEMORANDUM No. 136
August 18, 2014
The Obama Administration's Attempt to Balkanize Hawaii
http://thf_media.s3.amazonaws.com/2014/pdf/LM136.pdf
also saved at
http://big09.angelfire.com/ANPRMopposeHeritageVonSpakovsky.pdf
See also a 3-minute video
Mary Kissel interviews Hans von Spakovsky
"Stopping Hawaii's Secessionists"
Heritage Foundation Senior Legal Fellow Hans von Spakovsky on the Supreme Court's stop to discriminatory elections on the island.
Video posted on
Wall Street Journal Opinions Journal, December 1, 2015 at
http://www.wsj.com/video/opinion-journal-stopping-hawaiis-secessionists/948D3EE6-D1E8-4BC4-907B-8BB6BCD99E6D.html
Others at Heritage Foundation have also given great help in fighting the creation of a Hawaiian tribe. On July 15, 2005, just days before the U.S. Senate was scheduled to hold a debate and floor vote on the Akaka bill, an article by Heritage scholars Ed Meese and Todd Gaziano, and another article by Heritage senior writer Brian McNicoll, were published in Townhall.com. Although the original links no longer display them, those articles together with an article in the Washington Times on that date by Constitutional lawyer Bruce Fein remain available on Ken Conklin's website at
https://www.angelfire.com/hi5/bigfiles3/Akaka3ArticlesFeinMeeseMcNicoll071505.html
Brian Darling, senior editor at "Human Events" magazine and director of U.S. Senate Relations at The Heritage Foundation, wrote several articles in "Human Events" in 2009, 2010, and 2011 opposing the Akaka bill and describing stealth maneuvers underway in the Senate:; see
http://www.humanevents.com/article.php?id=33067
and
http://www.humanevents.com/article.php?id=38097
and
http://humanevents.com/2011/10/31/tuitionloan-nightmare-on-occupy-wall-street/
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. 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 of major publications opposing the Hawaiian tribal concept 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, warning against allowing the Akaka bill to be placed on the calendar of non-controversial bills to be passed under suspension of the rules in the evening, as had happened in the previous year.
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
==============
A news report in the Honolulu Star-Advertiser of December 5, 2016 displays very clearly that leaders of the phony tribe are in the process of raising millions of dollars to hold a ratification of their race-based constitution as required under terms of the "final rule", and takes note of legal issues related to whether President Trump would have the power to rescind (by means of a mere executive order) the "final rule" 43 CFR 50 that was adopted by a lengthy process that included public comments and revisions. The article is copied in full right here. It serves as a warning that all three methods should be pursued for rescinding 43 CFR 50, to ensure the job gets done even if one or two of the methods turns out to be unsuccessful.
http://www.staradvertiser.com/2016/12/05/hawaii-news/ratification-of-hawaiian-constitution-gains-kokua/
Honolulu Star-Advertiser, December 5, 2016
Ratification of Hawaiian constitution gains kokua
By Timothy Hurley
A campaign to bring about a ratification vote for the draft Native Hawaiian constitution has received a boost with a pledge of support from an association of more than 100 Native Hawaiian organizations.
The Council for Native Hawaiian Advancement and its Policy Center leadership are planning to launch a campaign to educate the community about the constitution and join efforts to raise private capital dedicated to holding a ratification vote.
Former Gov. John Waihee described the announcement as good news. He said $265,000 has already been raised by the group that convened following the Na'i Aupuni Aha, or constitutional convention, in February.
"Our hope is to hold the ratification vote in 2017, but that, of course, is contingent on our raising sufficient funds," Waihee said.
The constitution, approved by an 88-30 vote at the Royal Hawaiian Golf Course in Maunawili, describes a government led by executive, legislative and judicial branches and representing only descendants of the indigenous people who lived in the islands before 1778, or Western contact.
Na'i Aupuni, the organization set up by the Office of Hawaiian Affairs and underwritten by OHA trust funds, was originally supposed to pay for the ratification vote.
But the nonprofit bowed out shortly after the convention, saying it would be better to raise private funds going forward to avoid the same potentially lengthy legal challenge it faced when the Grassroot Institute of Hawaii and other groups accused it of using public funds for a racially exclusive election.
A group of aha participants soon joined up with Waihee to map out a pathway to ratification. The plan called for raising $2 million to educate Native Hawaiians about the new constitution, register new voters and stage a ratification vote.
Under the plan, a second election would be held if the constitution is ratified, allowing the new nation to select its officers, including a president, vice president and 43 members of a unicameral legislature.
The U.S. Department of the Interior, meanwhile, published a regulation allowing a Native Hawaiian nation to apply for formal recognition by the United States. The move by the Obama administration offered a path to the nation-within-a-nation status that was blocked by Republicans in Congress for years.
But then Republican Donald Trump was elected, spreading a cloud of uncertainty over the process. Many are wondering whether the new president will find a way to overturn the regulation. If not, will he reject an application once submitted? Does he even care?
Michelle Kauhane, Council for Native Hawaiian Advancement president and CEO, said her organization decided to step up its support of the ratification vote campaign, in part to counter what she called a widespread misconception that Trump will upend the law.
Kauhane said some folks are under the impression that the rule was created through executive order and is therefore easily rescinded by the president.
But that's not true, she said, because the Part 50 rule was instituted through the notice-and-comment rule-making process, making it a fully codified regulation that would take as much effort to reverse as it took to create, including public hearings.
CNHA Policy Center Chairwoman Robin Puanani Danner said she intentionally avoided asking the president for an executive order because administrations change and executive orders are too easy to undo.
"Think of all of the federal regulations on the books, and if it were easy, administrations would be stripping federal regulations left and right every four or eight years," said Danner, also chairwoman of the Sovereign Councils of the Hawaiian Homelands Assembly.
But Ilya Shapiro, a member of the Grassroot Institute Board of Scholars, urged the Trump administration to act immediately to rescind the rule.
Writing last week in the National Review, Shapiro, a senior fellow at the libertarian Cato Institute in Washington, D.C., also urged Congress to reject it through the use of the Congressional Review Act, a law enacted in 1996 that allows the reversal of a rule issued in a previous session of Congress.
The act has been used only once in 2001, to reverse President Bill Clinton's final rule on ergonomics, but the law might find new life once Trump takes office because the White House, Senate and House will be controlled by the same party.
Kauhane, who was an aha participant who voted in favor of the constitution, said the document deserves an up-or-down vote by the Native Hawaiian people.
"Is it perfect? No," she said. "But I really believe it was the best work accomplished by a diverse group of Native Hawaiians working together during that time."
Kauhane said CNHA spent the past three years helping to push the federal government rule-making process, and that now that it's finalized it's time to focus on educating the community about the draft Native Hawaii constitution.
CNHA is expected to organize six or seven symposiums across the state and on the mainland describing the content of the constitution and its implications for Native Hawaiians.
"For the next year our priority is getting information out into the community," Kauhane said. "With federal recognition embedded in the Code of Federal Regulations, it will be up to future leaders over the next decade to pursue or leave on the table."
Former Gov. Waihee said the money raised so far has come from 141 individuals and organizations and is being held by the Tides Foundation's Aloha Lahui Collective Action Fund.
The campaign's alohalahui.com website asks Hawaiians to help raise a nation by offering a donation, while its sister Hawaiiannation.com website describes the nation-building process and includes a copy of the constitution.
Meanwhile, the 'Aha Aloha 'Aina, a coalition of more than 40 Hawaiian organizations and businesses, has been holding a series of community meetings condemning the Native Hawaiian constitution.
Coalition leaders claim the constitution is part of a state-controlled and predetermined effort to reduce the Native Hawaiian people into an Indian tribe and to block any path toward independence. In the process, the leaders fear, the state would seize nearly 2 million acres of Hawaiian crown lands, or ceded lands.
More than 2,000 people reportedly have attended the informational meetings across Hawaii and on the mainland, during which attendees have been encouraged to back out of their Native Hawaiian voter registration or, at the least, vote no in the ratification election.
==============
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