1. Should the Office use the terms Indian or Tribe when referring to Native Hawaiians or the Native Hawaiian Community?
Short answer: It depends on the context in which those terms are used.
Discussion: The terms Indian and Tribe as used in the context of the U.S. Constitution and the plenary authority of Congress over Indian affairs are inclusive of Native Hawaiians and the NHC. Thus, use of those terms in reference to federal law is correct, but doing so, in the context of a consultation may undermine efforts to build relationships and trust with the NHC. Like many other tribes, the traditional names and identifiers the NHC has for itself differ from those historically developed and eventually used by the United States. Many indigenous communities self-identify with words meaning “first people,” “real people,” and other variations of “people” in their own languages, while “outsiders” attributed to them names and labels sometimes associated with their linguistic or anthropological grouping or their homelands. Many indigenous communities have adapted to or adopted such historical names while continuing to self-identify using their own traditional terms. For example, the Ute Indian Tribes in Utah and Colorado are associated with the Uto-Aztecan language family and while they have adopted variations on the name “Ute Indian Tribe,” many continue to self-identify as the núuchi-u (“the people”). “Navajo” evolved from a Spanish adaptation of a Tewa-puebloan word referring to a “place of large planted fields” and members of the present-day Navajo Nation refer to themselves as Diné (“the people”). Early use of the term “Hawaiian” referred to the people of Hawai‘i and “Native Hawaiian” refers to the indigenous people of Hawai‘i, many of whom self-identify as Kānaka ‘Ōiwi (“native people” or literally “people of the ancestral bone”) or Kānaka Maoli (“real people”) or as part of the Lāhui (“Nation”).
When engaging in activities and correspondence with other Federal officials it is appropriate and necessary to use those terms provided by statute. However, officials should make every effort to be respectful both in those Federal-to-Federal activities and when engaged with Native American communities by utilizing the traditional names of those communities.
There are multiple groups that claim they represent the Kingdom of Hawai‘i that was in place prior to the overthrow of the Monarchy. Some base their claim on genealogy, some on ideology, others based upon the need to see a wrong righted.
Much like the secessionist movements in Texas, California, and Alaska, the Kingdom or sovereignty organizations are a small but vocal segment of the NHC. As a Federal Official working with the NHC, every effort should be made to be kind and respectful of their views and to include their comments into the record. However, the Federal Government has made itself clear on multiple occasions that there are pathways to become a State, but none for seceding as a State.
Short answer: Congress requires consultation with the NHOs as the informal representatives of the Native Hawaiian Community which does not currently have a unified formal government.
A‘ohe pau ka‘ike i ka hālau ho‘okahi. All knowledge is not learned in just one school. [One can learn from many sources.]
Discussion: Congress acknowledged or recognized the NHC by establishing a special political and trust relationship through over 150 enactments. This political and trust relationship exists even though there is currently no formal government. To ensure the requirements of the United States’ relationship with the NHC are met, Congress requires that Federal agencies consult with NHOs as the informal representatives of the NHC. Should a formal government-to-government relationship be reestablished with a Native Hawaiian government pursuant to 43 C. F. R. part 50, Congress and Federal agencies would evaluate whether consultation could occur under existing consultation policies, or whether such policies would require modification.
While the Department of Hawaiian Home Lands (DHHL) and the Office of Hawaiian Affairs (OHA), which are respectively charged with rehabilitating and improving the conditions of Native Hawaiians, can be effective partners when working with the NHC, and many of their employees and elected/appointed officials are leaders in the NHC, both DHHL and OHA are State agencies. In some situations, these State agencies may hold positions in opposition to those held within the NHC.
Short answer: It depends on the scope of the Action and its implications.
Discussion: The importance of the SOP assessment stage (Step 1) cannot be overstated. Once step one is complete and the scope of the Action is generally understood, only then can the Office begin consultation planning in Step 2 and determine the number of meetings and where they should be held. A good practical guide is the narrower the scope of the Action, the fewer the meetings and locations that are required.
For example, if there is a stone wall that marks the historical borders of a property in Ka‘ū on the Island of Hawai‘i and only NHOs in Ka‘ū are likely interested in this wall then the best course of action may be to hold a face-to-face meeting in Ka‘ū and to conduct an e-remote meeting with the remainder of the NHC. However, if the wall encloses a sacred site that is important to all Hawai‘i Island but not to the NHC at large, it may be necessary to conduct multiple face-to-face meetings on Hawai‘i Island. Further, if the Action has state-wide implications, such as the establishment of a new regulation governing historic properties, it may be necessary to conduct meetings on all the main Hawaiian Islands.
NHOs and HBAs are predominantly tied to a geographical area. This could be an island, a moku (a region or district of an island), or even an ahupua‘a. When filing with the Office, all NHOs and HBAs are asked to provide information regarding the geographic area their organization represents. Providing this information not only advances an NHO’s or HBA’s self-determination but allows users of the NHO and HBA lists to readily identify appropriate NHOs and HBAs that may be interested in the Action.
For a discussion about the traditional land divisions in Hawai‘i and their implication on NHC decision making and leadership structures the Department of the Interior, Bureau of Ocean Energy Management’s 2017 Guidance Document for Characterizing Native Hawaiian Cultural Landscapes, appendix 2, sections 4-11, pages 33-42, provides a good overview.
When working with multiple NHOs the Office should consider each NHO’s position. In situations where there are conflicting views between NHOs, the Office should, as appropriate, afford an opportunity for the NHOs to consult with each other. However, if the Office finds itself needing to choose one viewpoint, the best course of action is to weigh which NHO has the greatest cultural affiliation with the affected resource or interest.
The closest culturally affiliated NHO, in the following order, is:
(i) An organization with a familial or kinship relationship to the earlier group connected to the cultural item if a cultural item is the subject of the consultation. If not, then move to (ii).
(ii) An organization claiming a relationship of shared group identity only to the earlier occupants of the ahupua‘a where the cultural item originated or the subject Action is primarily taking place, and not to the earlier occupants of any other ahupua‘a.
(iii) An organization claiming a relationship of shared group identity to the earlier occupants of the ahupua‘a where the cultural item originated or the subject Action is primarily taking place, as well as a relationship of shared group identity to the earlier occupants of other ahupua‘a on the same island, but not a relationship of shared group identity to all the earlier occupants of that island, or to the earlier occupants of any other island of the Hawaiian archipelago.
(iv) An organization claiming a relationship of shared group identity to all the earlier occupants of the island where the cultural item originated or the subject Action is primarily taking place, but not a relationship of shared group identity to the earlier occupants of any other island of the Hawaiian archipelago.
(v) An organization that has been in continuous existence from a date prior to 1893, and claims a relationship of shared group identity with the earlier occupants of more than one island in the Hawaiian archipelago.
(vi) Any other culturally affiliated NHO.
No. Consultation means consideration, not control. The Official proposing to engage in actions with NHC implications is expected to be an expert in that action or a representative of those who are experts. However, if the Office finds itself in a situation where NHC leaders are expressing opposition to the Office’s action, it is important to understand why and attempt to address the issue. Effective engagement makes for long lasting and effective policy making.
Yes. In 2011, the Office worked with the Advisory Council on Historic Preservation (ACHP) to create the “Consultation with Native Hawaiian Organizations In the Section 106 Review Process: A Handbook.” As the title suggests, the handbook provides tools, requirements, principles, and tips specifically geared toward helping Federal Agencies engage and reach successful outcomes when working with the NHC on actions triggering Section 106.
The meeting model outlined in the question, often called the “open microphone” model, requires limited preparation and resources. This is a valid format and may be used when appropriate. However, before considering the manner or forum in which to conduct the consultation, it is important to determine the type and quality of comments desired as part of the “consultation planning” step described above.
Open microphone or public hearing settings are designed for that purpose – to “hear” or listen to the person speaking. It is not the best forum for engaging in a dialogue or conversation with an individual or an NHO. In these settings, the physical layout of a table with government officials seated on one side and NHC members on the other creates a barrier, a divide, or an “us vs. them” appearance. It could also connote to the NHC participants that the consulting official is merely checking a box and that the consulting official will not take their input seriously.
Keys to productive meetings with the NHC are in preparation and creating the appropriate setting and space. Sometimes, this may require travelling to individual communities for small gatherings instead of requiring the NHC to travel to the agency, or meeting with individuals one-on-one. In other instances, it may be appropriate to have the NHO or other NHC leaders convene and facilitate the meeting(s).
In general, when determining the appropriate form of consultation, the consulting official must seek to meet the consultation needs of the NHC while balancing the needs of the Agency. It is understood that striking a true balance is not always possible because of time or resource constraints. However, when the situation, time, and resources permit, every effort must be made to create settings that facilitate dialogue instead of a “one-way” hearing. The benefits of doing this include:
When conducting consultation meetings, especially in-person meetings, there are four important roles: a leader, a facilitator, subject matter expert(s) (SME), and administrative support. It is difficult for one individual to effectively fill all these roles and have a productive meeting. As such, having a team at the meeting allows for more productive dialogues, reduces staff strain, and affords better analysis of comments received.
Facilitator – The role of an effective facilitator cannot be over emphasized. This person must be highly skilled at communication, personal interaction/engagement, time management, and emotional restraint. For Actions that are controversial with the NHC, consultation meetings will likely be confrontational or adversarial. The facilitator will be at the center of the dialogue and must have wherewithal to manage participant engagement and while maintaining an inner calm and focused mental state.
Leader/Policy Maker (leader) – When a leader is present at the meeting, especially if the Action involves a formal decision by the leader, it is important to manage the leader’s participation and engagement so as not to give the NHC participants the impression that the decision was pre-determined. In such meetings, it may be best to have the leader only make introductory and closing remarks and have a separate facilitator manage the rest of the meeting. If the leader is new to working with the NHC, they should be appraised ahead of time that there is generally a strong feeling of mistrust of any Federal official who comes to the NHC saying they are here to help (see the background section of this consultation SOP for more detail).
Subject Matter Expert (SME) – Persons with expertise covering the scope of the substance and administrative process pertaining to the Action should be SMEs and serve to assist the facilitator and leader to either present technical information to, or respond to questions from, the NHC. In consultation meetings where there is a separate facilitator or leader, SMEs need to be mindful of their role and avoid taking over the meeting or speaking for the leader. The most effective SMEs are those who are open and receptive to, rather than threatened by or dismissive of, the knowledge base (including traditional indigenous as well as scholarly knowledge) within the NHC. A willingness to listen and learn while still teaching is essential for those serving in this role.
Administrative Support – The difference between successes and failures and an effective and ineffective consultation meeting most often resides with the performance of the administrative support staff. Their role is to enhance the abilities of the consultation team by ensuring the consultation meeting begins and remains organized and proper recordation of the meeting occurs. Those who have participated in a consultation meeting share that it is difficult to engage in meaningful dialogue when one of the parties must divide their attention between listening and understanding, capturing notes, and greeting and distributing information to other participants. Having a separate person provide administrative support sends a powerful message to the participating parties that what is being discussed and the input provided is important. Their work also helps ensure an accurate administrative record is kept and a defensible decision regarding the Action is reached.
Key: When engaged in a consultation where trust is an issue, the Administrative Support can help to build trust by displyaing notes on an overhead screen that allows participants to review and correct notes as they are taken.
 At the time of the Framers and in the nineteenth century, the terms ‘‘Indian,’’ ‘‘Indian affairs,’’ and ‘‘Indian tribes’’ were used to refer to the indigenous peoples not only of the Americas but also of the Caribbean and areas of the Pacific extending to Australia, New Zealand, and the Philippines. See, e.g., W. Dampier, A New Voyage Around the World (1697); Joseph Banks, The Endeavor Journal of Sir Joseph Banks (1770); William Bligh, Narrative of the Mutiny on the Bounty (1790); A.F. Gardiner, Friend of Australia (1830); James Cook, A Voyage to the Pacific Ocean (1784) (referring to Native Hawaiians).
 81 Fed. Reg. 71,294 (Oct. 14, 2016) (To the extent persons claim that Hawaii is not a State within United States, the Department rejects that claim. Congress admitted Hawaii to the Union as the 50th State. The Admission Act, which was consented to by the State of Hawaii and its citizens through an election held on June 27, 1959, proclaimed that ‘‘the State of Hawaii is hereby declared to be a State of the United States of America, [and] is declared admitted into the Union on an equal footing with the other States in all respects whatever.’’ Act of March 18, 1959, sec. 1, 73 Stat. 4. This express determination by Congress is binding on the Department as an agency of the United States Government that is bound by Congressional enactments concerning the status of Hawaii. Under those enactments and under the United States Constitution, Hawaii is a State of the United States. Agents of the United States were involved in the overthrow of the Kingdom of Hawaii in 1893; and Congress, through a joint resolution, both acknowledged that the overthrow of Hawaii was ‘‘illegal’’ and expressed ‘‘its deep regret to the Native Hawaiian people’’ and its support for reconciliation efforts with Native Hawaiians. Apology Resolution at 1513. This Apology Resolution, however, did not effectuate any changes to existing law. See Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163, 175 (2009). Thus, the Admission Act establishing the current status of the State of Hawai‘i remains the controlling law.).
 Pūku‘i, Mary Kawena, ‘Ōlelo No‘eau: Hawaiian Proverbs and Poetical Sayings. Honolulu: Bishop Museum Press, 1983.