[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]




                    CAN CONGRESS CREATE A RACE-BASED
                   GOVERNMENT? THE CONSTITUTIONALITY
                           OF H.R. 309/S. 147

=======================================================================

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 19, 2005

                               __________

                           Serial No. 109-37

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


                                 ______

                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2005
22-495 PDF

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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, General Counsel-Chief of Staff
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

                    Subcommittee on the Constitution

                      STEVE CHABOT, Ohio, Chairman

TRENT FRANKS, Arizona                JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee        JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama              ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana          MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin                CHRIS VAN HOLLEN, Maryland
STEVE KING, Iowa
TOM FEENEY, Florida

                     Paul B. Taylor, Chief Counsel

                      E. Stewart Jeffries, Counsel

                          Hilary Funk, Counsel

                 Kimberly Betz, Full Committee Counsel

           David Lachmann, Minority Professional Staff Member



                            C O N T E N T S

                              ----------                              

                             JULY 19, 2005

                           OPENING STATEMENT

                                                                   Page
The Honorable Steve Chabot, a Representative in Congress from the 
  State of Ohio, and Chairman, Subcommittee on the Constitution..     1
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Ranking Member, Subcommittee on the 
  Constitution...................................................     3

                               WITNESSES

The Honorable Mark Bennett, Attorney General, State of Hawaii
  Oral Testimony.................................................     6
  Prepared Statement.............................................     8
Mr. Shannen W. Coffin, Partner, Steptoe & Johnson, L.L.P.
  Oral Testimony.................................................    10
  Prepared Statement.............................................    13
Mr. H. William Burgess, Founder, Aloha for All
  Oral Testimony.................................................    23
  Prepared Statement.............................................    25
Mr. Bruce Fein, President, The Lichfield Group
  Oral Testimony.................................................    31
  Prepared Statement.............................................    34

                                APPENDIX
               Material Submitted for the Hearing Record

Joint Prepared Statement of the Honorable Neil Abercrombie and 
  the Honorable Ed Case, Representatives in Congress from the 
  State of Hawaii................................................    56
Appendix to the Statement of the Honorable Mark Bennett: Table of 
  Federal Acts Affecting Native Hawaiians........................    60
Appendix to the Statement of the Honorable Mark Bennett: ``The 
  Authority of Congress to Establish a Process for Recognizing a 
  Reconstituted Native Hawaiian Governing Entity,'' by Viet D. 
  Dinh, Georgetown University Law Center and Bancroft Associates 
  PLLC...........................................................    81
Appendix to the Statement of the Honorable Mark Bennett: Position 
  Statement of the Attorney General of the State of Hawaii.......   107
Appendix to the Statement of Shannen W. Coffin: Brief of Amici 
  Curiae, Campaign for a Color-Blind America, Americans Against 
  Discrimination and Preferences, and the United States Justice 
  Foundation, In Support of Petitioner, Filed by Shannen W. 
  Coffin, Counsel of Record for Ami Curiae in the case of Harold 
  F. Rice v. Benjamin J. Cayetano................................   140
Appendix to the Statement of Shannen W. Coffin: Harold F. Rice v. 
  Benjamin J. Cayetano, On Petition For a Writ of Certiorari To 
  The United States Court of Appeals For The Ninth Circuit, 
  Respondent's Brief in Opposition...............................   153
Appendix to the Statement of Shannen W. Coffin: United States 
  Senate, Republican Policy Committee, Jon Kyl, Chairman, ``Why 
  Congress Must Reject Race-Based Government for Native 
  Hawaiians''....................................................   157
Appendix to the Statement of H. William Burgess: HI-Akaka Bill--
  Survey 2.......................................................   170
Letter to Senator John McCain from the Honorable William B. 
  Moschella, Assistant Attorney General, Office of Legislative 
  Affairs, U.S. Department of Justice............................   183
Letter to the Honorable Steve Chabot from Senator Jon Kyl........   185
Prepared Statement of David B. Rosen, Esq........................   209


 
 CAN CONGRESS CREATE A RACE-BASED GOVERNMENT? THE CONSTITUTIONALITY OF 
                            H.R. 309/S. 147

                              ----------                              


                         TUESDAY, JULY 19, 2005

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:07 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable Steve 
Chabot (Chair of the Subcommittee) presiding.
    Mr. Chabot. The Committee will come to order. This is the 
Subcommittee on the Constitution. I am the Chairman, Steve 
Chabot. We expect the Ranking Member, Mr. Nadler, to be here 
very shortly. At that time we are going to recognize Mr. 
Abercrombie, who wants to bring up something that we are happy 
to participate in.
    We welcome everyone here today. I would like to thank 
everyone for coming. Some of you have clearly come from a very 
long distance from here. This is a hearing before the 
Subcommittee on the Constitution to examine whether Congress 
can create a race-based government within the United States, 
and, in particular, the constitutionality of H.R. 309, a bill 
that would authorize the creation and recognition of a Native 
Hawaiian quasi-sovereign government.
    I would like to recognize, as I mentioned at the outset, 
that this Committee does not have jurisdiction over H.R. 309 
itself, but I believe this bill and the companion bill in the 
Senate raise constitutional questions of such magnitude that we 
would be doing a disservice to the public and to our 
constituents if we did not closely examine the constitutional 
implications of H.R. 309.
    We have a very distinguished panel before us here this 
afternoon. I would like to thank them for taking the time to 
provide us with their insight and expertise. I know Mr. 
Burgess, who flew all the way from Hawaii, had an extremely 
long trip. I appreciate his efforts particularly in coming 
here. We look forward to the testimony of all the witnesses 
here this afternoon.
    Since the Civil War, the United States has strived to 
become a color blind society. We have struggled to insure that 
the principles on which our country was founded are applied 
equally, and that every person receives just and fair treatment 
under our laws.
    But the issue that we are focused on today suggests that 
race should be the sole criteria for how individuals are 
treated, and many of us believe that this would be a mistake. 
In asking Congress to take steps toward authorizing the 
creation of a race-based government, some refer us back to our 
Nation's history and treatment of Native American Indians in 
this country. Under article 1, section 8, Congress has the 
power ``to regulate commerce with the Indian tribes.''
    It is under this power that we have afforded unique 
protections to Indian tribes over the last 229 years. But those 
protections center on preserving the quasi-sovereign tribal 
status that Indians have lived under since the beginning of 
their existence, a point that has been reiterated time and time 
again by the Supreme Court.
    In fact, in U.S. v. Sandoval, the Supreme Court rejected 
the idea that ``Congress may bring a community or body of 
people within range of this power by arbitrarily calling them 
an Indian tribe, finding that in respect of distinctly Indian 
communities, the questions whether, to what extent and for what 
time they shall be recognized and dealt with as dependent 
tribes requiring the guardianship and protection of the United 
States are to be determined by Congress.''
    It is on this premise that unique treatment has been 
provided to Indians. It is on this basis that Native Hawaiians 
would seek quasi-sovereign status similar to Native American 
Indians. However, unlike Native American Indians and Alaska 
tribes, the only factor that would bind together a quasi-
sovereign Native Hawaiian government, if formed today, would be 
race. Race alone does not and should not be the basis for 
creating a sovereign entity.
    It is the antithesis of our form of Government and contrary 
to the principles on which this country was founded. The 
Supreme Court stated in Rice v. Cayetano that ``the law itself 
may not be an instrument for generating the prejudice and 
hostility, all too often directed against persons whose 
particular ancestry is disclosed by their ethnic 
characteristics and cultural traditions.''
    Justice Scalia stated most appropriately in Adarand 
Contractors Inc. that ``to pursue the concept of racial 
entitlement, even for the most benign purposes, is to reinforce 
and preserve for future mischief the way of thinking that 
produced race slavery, race privilege and race hatred. In the 
eyes of the Government, we are just one race here. We are 
American.'' That was Justice Scalia in that particular opinion 
that I just referred to.
    It is here in America that all cultures are free to 
practice their traditions, cultures and religions free from 
Government intrusion. It is here in America where injustices 
that have occurred are remedied to make individuals and groups 
whole. However, America should not be a place where governments 
are defined by race or ancestry or the color of one's skin.
    It should not be a place neighbors, who may have lived next 
to each other for decades, are suddenly subject to two 
different civil and criminal standards because of race. It's 
with that understanding that we all look forward to exploring 
the issues before us today. And the statement that I just made 
is obviously not necessarily the statement that every Member of 
Congress would have made with respect to this, and it's not 
obviously the views of all the witnesses that are with us here 
this afternoon.
    I would now yield to Mr. Nadler, and then we will yield, of 
course, to Mr. Abercrombie.
    Mr. Nadler. Thank you, Mr. Chairman. Let me just say, Mr. 
Chairman, that on this occasion, I must state my regret that 
this is not a field hearing, an on-site field hearing.
    Mr. Chairman, I would like to join you in welcoming our 
distinguished panel and also in welcoming our distinguished 
colleagues from the State of Hawaii. The record of concern and 
energetic efforts of all the people of Hawaii is admirable, and 
I want to commend them for their work on this very complex but 
important issue.
    Obviously, our Subcommittee does not have jurisdiction over 
this legislation, but we do have jurisdiction over the 
Constitution. Questions of this legislation's constitutionality 
have been raised, and I hope that we can make some contribution 
in sorting out these issues.
    In that consideration, I believe that the Subcommittee 
should listen very carefully to the voices of Hawaii's elected 
representatives. Our colleagues, and the distinguished Attorney 
General of Hawaii, have a great deal to contribute.
    I would also note that the minority, the Democratic Members 
of this Subcommittee, has invited a Republican Attorney 
General. The issues concerning Native Hawaiians are not 
partisan issues, so we should have the advantage hopefully of 
examining these questions in a cooler than perhaps normal 
atmosphere.
    It is no secret that the treatment of the native people who 
inhabited the United States before the Europeans arrived has 
been a disgrace. It is a terrible legacy of the settlement of 
this hemisphere that the people who first inhabited these lands 
were murdered, enslaved, thrown off their land and robbed of 
their sovereignty.
    There is little we can do today about that shameful past, 
but we can try to achieve justice for those living in the 
present day. I believe there is really one core issue in this 
case, and that is whether Native Hawaiians are, like the tribes 
of the mainland, entitled to some right to self-determination, 
apart from their individual rights as citizens of the United 
States. If so, how do we enable them to realize these rights of 
self-determination without violating the rights of others.
    Terms like race-based government do not appear to enlighten 
this question very much. Perhaps the testimony will persuade me 
otherwise, but I am dubious of the concept.
    This is a new issue for our Committee, and an important one 
to the people of Hawaii and to the Nation. I thank my 
colleagues and you, Mr. Chairman, for raising these significant 
issues, and I look forward to hearing from our witnesses. I ask 
also ask unanimous consent that the statement by the gentleman 
from Hawaii be included in the record, and that all Members 
have 5 legislative days to revise and extend their remarks and 
to include additional materials into the record.
    I thank you, Mr. Chairman.
    Mr. Chabot. Thank you very much. I would at this time ask 
unanimous consent be given to allow two non-Judiciary Committee 
Members, Mr. Abercrombie and Mr. Case, to serve as a resource 
to this Committee. They won't be making opening statements or 
asking questions, but should any of the panel members wish to 
ask them questions or refer to them, they would be able, during 
Members' up here time, to do that. Without objection, so 
ordered.
    At this time, I would like to recognize Mr. Abercrombie to 
make a statement--this isn't an opening statement, but make a 
brief statement here.
    Mr. Abercrombie. Mr. Chairman, on behalf of Mr. Case and 
myself, let me thank you for the opportunity to be with you and 
address the issues, as have been stated, are very, very 
important to us, and I think to anyone interested in the 
Constitution, especially as we are coming up on the anniversary 
in September of the signing of the Constitution. It's 
traditional in Hawaii, before we begin any deliberations or 
even when we greet people whom we haven't met before, and would 
like to accommodate as friends, that you be greeted with a lei 
of welcome and as symbolic of the aloha spirit in Hawaii of 
welcoming.
    With that in mind, Mr. Chairman, with your permission, the 
Chair of the Board of Trustees of the Office of Hawaiian 
Affairs, Haunani Apolonia, and the Representative from 
Molo'kai, Colette Mochado, would like to present you and Mr. 
Nadler with leis of greeting from Hawaii.
    Mr. Chabot. Without objection, so ordered.
    Mr. Abercrombie. Yes.
    Mr. Chabot. If Mr. Nadler has no objection, I have no 
objection.
    Mr. Abercrombie. Mr. Chairman, you are going to receive a 
kiss with this. Hopefully it will be recorded for all to see. I 
guarantee you won't get in trouble with this one.
    Mr. Chabot. Thank you.
    Mr. Abercrombie. Mr. Chairman, under the rules of the House 
regarding shameless pandering, Mr. Case and I, on behalf of all 
of our friends here from Hawaii--and I have to note a conflict 
too. My neighbor is here, Judge Robert Klein, came as well, 
hopefully bringing greetings from my wife. And in that regard, 
Mr. Chairman, Mr. Case and I would like to present you and the 
staff with some chocolate-covered macadamia nuts.
    Mr. Nadler. Mr. Chairman .
    Mr. Chabot. Yes, Mr. Nadler.
    Mr. Nadler. Can we all agree that the macadamia nuts and 
the leis will not unduly prejudice the consideration of this 
country?
    Mr. Chabot. Yes, they are under the gift ban limit, I 
think, so I think we are in good shape. Thank you very much. In 
light of my opening statement, I wasn't sure if I was going to 
get these or not. But I appreciate that very much.
    Mr. Abercrombie. Mr. Chairman, when you meet someone in 
Hawaii, not only do you get a lei, but then you have to eat.
    Mr. Chabot. Thank you very much. We appreciate the ceremony 
that you just did very well. I know that other Members of the 
Committee are feeling somewhat left out at this point, but it 
was very kind of you. Again, we appreciate it very much.
    Without objection, all Members will have 5 legislative days 
to submit additional materials, and they are not to be the 
macadamia nuts, for a hearing record, and without objection, so 
ordered.
    I will now introduce the members of the panel here. Our 
first witness is the Honorable Mark Bennett, Attorney General 
for the State of Hawaii. Mr. Bennett was appointed Attorney 
General by Hawaii Governor Linda Lingle in 2003. Prior to his 
appointment, Mr. Bennett was a litigator for the Honolulu-based 
law firm of McCorriston Miller Mukai MacKinnon L.L.P., where he 
specialized in complex litigation. In 2004, Mr. Bennett was 
named by the National Association of Attorneys General as Chair 
of its Antitrust Committee succeeding Eliott Spitzer, Attorney 
General of New York. Mr. Bennett has been married to Patricia 
Tomi Ohara for 20 years.
    Our second witness will be Mr. Shannen Coffin. Mr. Coffin 
is currently a partner with the law firm of Steptoe & Johnson, 
where he practices law in the areas of constitutional and 
appellate litigation. He served as counsel of record for amicus 
curiae Campaign for a Color Blind America in the Rice v. 
Cayetano case, a case that we will most certainly discuss later 
in this hearing. Mr. Coffin stepped away from the private 
practice between the years 2002 and 2004, where he served as 
the Deputy Assistant Attorney General for the Federal Programs 
Branch of the Department of Justice Civil Division. There he 
oversaw and coordinated trial litigation on behalf of the 
Federal Government for constitutional and other challenges to 
Federal statutes and agency programs. We thank you for being 
here as well as Attorney General Bennett for being here.
    Our third witness is Mr. William Burgess. Mr. Burgess is a 
retired attorney who is a resident of the State of Hawaii. Mr. 
Burgess has been active in Hawaii's grassroots efforts to make 
Hawaii a color-blind society and together with his wife, have 
formed Aloha for All, Inc., an advocacy organization. He was a 
delegate to the 1978 Hawaiian constitutional convention, the 
same year that the Office of Hawaiian Affairs was established. 
What I find most interesting about Mr. Burgess' resume is that 
he lists as one of his current occupations ``student of Hawaii 
history.'' I am sure we will learn more about that later in the 
hearing.
    Our fourth and final witness this afternoon will be Mr. 
Bruce Fein, a renowned constitutional law expert. Mr. Fein 
previously served as the Assistant Director of Office of Legal 
Policy at the Department of Justice, legal advisor to the 
Assistant Attorney General for Antitrust and the Associate 
Deputy Attorney General. He was appointed to serve as the 
general counsel for the Federal Communications Commission and 
as a research director for the Joint Congressional Committee on 
Covert Arms Sales to Iraq. He is the author of numerous 
articles, papers and treatises in the areas of the United 
States Supreme Court, the U.S. Constitution and international 
law.
    We thank all of you, again, for being here, and for those 
of you who have not testified before the Committee before, I 
might note that we have a lighting system here. Each of the 
witnesses will be given 5 minutes. It will start green and be 
that way for 4 minutes. It will then change to yellow. That 
tells you have 1 minute to wrap up, and then it will go red, at 
which time we would hope that you would have either completed 
or wrap up shortly thereafter. I will give you a little leeway. 
We don't want to cut anybody off, but we would ask you to stay 
within the 5 minutes as much as possible.
    It is the practice of this Committee to swear in all 
witnesses appearing before it, so if you would, we would ask 
each of you to please stand and raise your right hands.
    [Witnesses sworn.]
    Mr. Chabot. Thank you very much. You can all please be 
seated. We will begin with you, Mr. Bennett.

           TESTIMONY OF THE HONORABLE MARK BENNETT, 
               ATTORNEY GENERAL, STATE OF HAWAII

    Mr. Bennett. Mr. Chairman, and Members of the Committee. I 
would like to express my appreciation for you allowing me to 
testify here today on this very important issue. I support the 
Akaka bill because it is just and because it is fair and 
because it treats Native Hawaiians like America's other 
indigenous people.
    It has the support in Hawaii, the bipartisan support of 
virtually every elected official. It has the support of 
Republicans like Governor Linda Lingle and myself. It has the 
support of 75 out of 76 members of our State legislature. It 
has the support of all of our mayors, and it does not have that 
support for political reasons. It has that support because we 
all agree that this is the just thing to do.
    The title of this hearing asks essentially two questions: 
Does S. 147 create a race-based government? The answer to that 
question is a resounding no. Is H.R. 309/S. 147 constitutional? 
The answer to that question is a resounding yes.
    While it is true that race is a characteristic for 
determining who gets to vote in the determination of forming a 
Native Hawaiian governing entity, for more than 100 years the 
Supreme Court has stated that race is one of the 
characteristics of determining whether individuals are part of 
a group or a tribe recognizable under the Indian Commerce 
Clause. So to say that this is a race-based government, is also 
to say that every recognized Indian tribe is a race-based 
government as well.
    Indeed, Mr. Chairman, this Congress, since 1910 has passed, 
and we have attached to our testimony as exhibits, more than 
160 separate bills that recognize the special status of Native 
Hawaiians and their status akin to Native American Indians. 
Indeed the State of Hawaii's Admissions Act itself required 
Hawaii as a condition of entering the union to provide special 
benefits for Native Hawaiians.
    As recently as 2000, in the Hawaiian Homeland Act, this 
Congress said we are not extending benefits because of race, 
but because of Hawaii's people, Native Hawaiian's status as an 
indigenous people and the political status of Native Hawaiians 
is comparable to that of American Indians. Those are the words 
of this Congress repeated over and over again in litigation.
    In Morton v. Mancari the seminal case in this area, the 
Supreme Court said that even though the criteria for 
determining tribe membership may be based on race, it is not 
racial, it does not violate the 14th amendment, it is 
political, and it is recognized as such in the Constitution. 
That is why this bill is constitutional.
    I am joined in this view by those who I consider 
conservative political theorists and legal scholars. We have 
attached to our testimony the detailed analysis of this bill by 
Viet Dinh, Professor and former high-ranking official in the 
Department of Justice, whose qualifications in this area are 
unquestionable.
    I have discussed this matter with several of my more 
conservative colleagues, including former Attorney General Bill 
Pryor, current Texas Attorney General Greg Abbott, both of whom 
concluded beyond question that this bill is constitutional. 
Professor Dinh recognizes four separate clauses in the 
Constitution providing that.
    Are Native Hawaiians--would they have been viewed as 
Indians by the Framers of the Constitution? Unquestionably. The 
Declaration of Independence itself describes Indians as 
inhabitants of the frontier, not just of 13 original colonies, 
but after-acquired territory.
    Captain Cook, in 1778, when he first visited Hawaii, and 
his men described the aboriginal inhabitants as Indians, the 
framers would have recognized them as such and the Framers 
would have recognized that Congress's power under the Indian 
clause indeed gives the Congress the ability to recognize 
Native Hawaiians. There has been no case ever in the history of 
the United States of which I am aware overturning a decision of 
Congress in this area.
    If there were any question, Mr. Chairman, about this, the 
Lara case from 2004 made clear that Congress's powers in this 
area are plenary, and the Menomonee Restoration Act upheld in 
that decision bears striking similarity to the act under 
consideration here. Whether the Indian tribes are fully 
assimilated, whether there is no Federal supervision of them, 
whether or not their government has been continuous, are 
irrelevant to the constitutional issue as determined by the 
Supreme Court.
    Indeed, if the opponents of this bill were correct, the 
Alaska Natives Claims Settlement Act could not possibly have 
been constitutionally adopted. Native Alaskans are not Indians, 
but the criteria they share with American Indians is the fact 
that they are one of America's indigenous people.
    Mr. Chairman, if I could have a short additional time.
    Mr. Chabot. If you could wrap it up in another minute, we 
would appreciate it.
    Mr. Bennett. Thank you. Combined with the plenary power of 
Congress, and combined with the injustice done to Native 
Hawaiians in which the United States participated, the ability 
of the Congress to recognize that in this bill is, I would 
submit to you, constitutionally unquestionable. Rice is not in 
any way contrary. I could address that if I received questions.
    Mr. Chairman, Native Hawaiians do not ask for special 
treatment. Native Hawaiians ask for the type of fairness that 
we Americans pride ourselves on. They ask not to be treated as 
second class among America's indigenous people. They ask to be 
given the same rights and privileges so that they can take 
their place with other American indigenous people, and this 
bill before this Committee does that, as I started out by 
saying, Mr. Chairman, it is not a matter of race, it is not 
unconstitutional, it is a matter of justice and fairness, and 
that is what this bill accomplishes.
    Thank you.
    Mr. Chabot. Thank you.
    [The prepared statement of Mr. Bennett follows:]
          Prepared Statement of the Honorable Mark J. Bennett
    Good afternoon. Thank you for giving me the opportunity to address 
the important question presented today. Let me begin by noting, with 
due respect, that the title of this hearing ``Can Congress Create a 
Race-Based Government?'' itself reflects a fundamental misunderstanding 
of what the Akaka Bill does, and assumes a conclusion, erroneous I 
submit, to the very question it purports to ask.
    Simply put, the Akaka Bill does NOT create a race-based government. 
In fact, the fundamental criterion for participation in the Native 
Hawaiian Governing Entity is being a descendant of the native 
indigenous people of the Hawaiian Islands, a status Congress has itself 
characterized as being non-racial. For example, Congress has expressly 
stated that in establishing the many existing benefit programs for 
Native Hawaiians it was, and I quote, "not extend[ing] services to 
Native Hawaiians because of their race, but because of their unique 
status as the indigenous people . . . as to whom the United States has 
established a trust relationship.'' [Hawaiian Homelands Homeownership 
Act of 2000, Section 202(13)(B)]. Thus, Congress does not view programs 
for Native Hawaiians as being ``race-based'' at all. Accordingly, a 
Native Hawaiian Governing Entity by and for Native Hawaiians would 
similarly not constitute a ``race-based'' government.
    This is not just clever word play, and the contention that 
recognizing Native Hawaiians would create a ``racial'' classification 
would be flat wrong, and would ignore decades of consistent United 
States Supreme Court precedent. The key difference between the category 
Native Hawaiians and other racial groups, is that Native Hawaiians, 
like Native Americans and Alaska Natives, are the aboriginal indigenous 
people of their geographic region. All other racial groups in this 
country are simply not native to this country. And because of their 
native indigenous status, and the power granted the Congress under the 
Indian Commerce Clause, Native Hawaiians, like Native Americans and 
Alaska Natives, have been recognized by Congress as having a special 
political relationship with the United States.
    Moreover, although the initial voting constituency encompasses all 
those with Native Hawaiian blood, that simply reflects the unsurprising 
obvious fact that native peoples, by definition, share a blood 
connection to their native ancestors. The Supreme Court, in Morton v. 
Mancari, upheld a congressional preference for employment of Indians 
within the Bureau of Indian Affairs, even though not all tribal Indians 
were given the preference, but only those tribal Indians with one-
quarter Indian blood.
    Those who contend that the Supreme Court in Rice v. Cayetano found 
the category consisting of Native Hawaiians to be ``race-based'' under 
the Fourteenth Amendment and unconstitutional are also simply wrong. 
The Supreme Court limited its decision to the context of Fifteenth 
Amendment voting rights, and expressly refused to address the 
applicability of Mancari to Native Hawaiian recognition. Indeed, the 
Supreme Court in Rice made no distinction whatsoever between American 
Indians and Native Hawaiians.
    Some opponents of the Akaka Bill argue that including all Native 
Hawaiians, regardless of blood quantum, is unconstitutional, citing the 
concurring opinion of Justices Breyer and Souter in Rice v. Cayetano. 
But that opinion did not find constitutional fault with including all 
Native Hawaiians of any blood quantum provided that was the choice of 
the tribe, and not the state. Because the Akaka Bill gives Native 
Hawaiians the ability to select for themselves the membership criteria 
for ``citizenship'' within the Native Hawaiian government, no 
constitutional problem arises.
    The notion that S.147 creates some sort of unique race-based 
government at odds with our constitutional and congressional heritage 
contradicts Congress' longstanding recognition of other native peoples, 
including American Indians, and Alaska Natives, and the Supreme Court's 
virtually complete deference to Congress' decisions on such matters.
    Hawaiians are not asking for ``special'' treatment--they're simply 
asking to be treated the same way all other native indigenous Americans 
are treated in this country. Congress has recognized the great 
suffering American Indians and Alaska Natives have endured upon losing 
control of their native lands, and has, as a consequence, provided 
formal recognition to those native peoples. Hawaiians are simply asking 
for similar recognition, as the native indigenous peoples of the 
Hawaiian Islands who have suffered similar hardships, and who today 
continue to be at the bottom in most socioeconomic statistics.
    The Constitution gives Congress broad latitude to recognize native 
groups, and the Supreme Court has declared that it is for Congress, and 
not the courts, to decide which native peoples will be recognized, and 
to what extent. The only limitation is that Congress may not act 
``arbitrarily'' in recognizing an Indian tribe. Because Native 
Hawaiians, like other Native Americans and Alaska Natives, are the 
indigenous aboriginal people of land ultimately subsumed within the 
expanding U.S. frontier, and not just a racial minority that descends 
from foreign immigrants, it cannot be arbitrary to provide recognition 
to Native Hawaiians. Indeed, because Native Hawaiians are not only 
indigenous, but also share with other Native Americans a similar 
history of tragic dispossession, cultural disruption, and loss of full 
self-determination, it would be ``arbitrary'' to not recognize Native 
Hawaiians.
    The Supreme Court long ago stated that ``Congress possesses the 
broad power of legislating for the protection of the Indians wherever 
they may be,'' [U.S. v. McGowan] ``whether within its original 
territory or territory subsequently acquired.'' [U.S. v. Sandoval]
    To those who say that Native Hawaiians do not fall within 
Congress's power to deal specially with ``Indian Tribes,'' because 
Native Hawaiians simply are not ``Indian Tribes,'' I say they are 
simply wrong. For the term ``Indian,'' at the time of the framing of 
the Constitution, simply referred to the aboriginal ``inhabitants of 
our Frontiers.'' And the term ``tribe'' at that time simply meant ``a 
distinct body of people as divided by family or fortune, or any other 
characteristic.'' Native Hawaiians easily fit within both definitions.
    Furthermore, Congress has already recognized Native Hawaiians to a 
large degree, by not only repeatedly singling out Native Hawaiians for 
special treatment, either uniquely, or in concert with other Native 
Americans, but by acknowledging on many occasions a ``special 
relationship'' with, and trust obligation to, Native Hawaiians. In 
fact, Congress has already expressly stated that ``the political status 
of Native Hawaiians is comparable to that of American Indians.'' [e.g., 
Haw'n Homelands Homeownership Act of 2000]. The Akaka Bill simply takes 
this recognition one step further, by providing Native
    Hawaiians with the means to re-organize a formal self-governing 
entity for Congress to recognize, something Native Americans and Native 
Alaskans have had for decades.
    Some opponents of the bill have noted that Hawaiians no longer have 
an existing governmental structure to engage in a formal government-to-
government relationship with the United States. That objection is not 
only misguided but self-contradictory. It is misguided because Native 
Hawaiians do not have a self-governing structure today only because the 
United States participated in the elimination of that governing entity, 
by facilitating the overthrow of the Hawaiian Kingdom, and later 
annexing the Hawaiian Islands. Unlike other Native Americans who were 
allowed to retain some measure of sovereignty, Congress did not leave 
Native Hawaiians with any sovereignty whatsoever. It cannot be that the 
United States's complete destruction of Hawaiian self-governance would 
be the reason Congress would be precluded from ameliorating the 
consequences of its own actions by trying to restore some small measure 
of sovereignty to the Native Hawaiian people.
    The objection is self-contradictory because one of the very 
purposes and objects of the Akaka Bill is to allow Native Hawaiians to 
re-form the governmental structure they earlier lost. Thus, once the 
bill is passed, and the Native Hawaiian Governing Entity formed, the 
United States would be able to have a government-to-government 
relationship with that entity.
    Finally, some opponents of the bill contend that because the 
government of the Kingdom of Hawaii was itself not racially exclusive, 
that it would be inappropriate to recognize a governing entity limited 
to Native Hawaiians. This objection is absurd. The fact that Native 
Hawaiians, over one hundred years ago, were enlightened enough to 
maintain a government that was open to participation by non-Hawaiians, 
should not deprive Native Hawaiians today of the recognition they 
deserve. Indeed, it is quite ironic that those who oppose the Akaka 
Bill because it purportedly violates our nation's commitment to equal 
justice and racial harmony would use Native Hawaiians' historical 
inclusiveness, and willingness to allow non-Hawaiians to participate in 
their government, as a reason to deny Native Hawaiians the recognition 
other native groups receive.
    The same irony underlies the objection that because Native 
Hawaiians are not a fully segregated group within the Hawaiian Islands 
and instead are often integrated within Hawaii society at large, and 
sometimes marry outside their race, they cannot be given the same 
recognition that Native American and Alaska Natives receive. Anyone 
concerned about promoting racial equality and harmony should be 
rewarding Native Hawaiians for such inclusive behavior, or as we say in 
Hawaii, ``aloha'' for their fellow people of all races, rather than 
using it against them. In any event, American Indians, too, have 
intermarried--at rates as high as 50% or more--and often venture beyond 
reservation borders, and yet those facts do not prevent them or their 
descendants from federal recognition.
    In short, there is simply no legal distinction between Native 
Hawaiians and American Indians or Alaska Natives, that would justify 
denying Native Hawaiians the same treatment other Native American 
groups in this country currently enjoy.
    The Akaka Bill, under any reasonable reading of the Constitution 
and decisions of the Supreme Court, is constitutional, just as is the 
Alaska Native Claims Settlement Act for Alaska Natives, and the Indian 
Reorganization Act for American Indian tribes--both of which assured 
their respective native peoples some degree of self-governance. The 
Supreme Court, as noted before, has made clear that Congress' power to 
recognize native peoples is virtually unreviewable.
    And so I emphasize and repeat, that Hawaiians are not asking for 
``special'' treatment--they're simply asking to be treated the same way 
all other native indigenous Americans are treated in this country. 
Congress long ago afforded American Indians and Alaska Natives formal 
recognition. The Akaka Bill would simply provide Native Hawaiians 
comparable recognition, as the indigenous peoples of the Hawaiian 
Islands. Formal recognition will help preserve the language, identity, 
and culture of Native Hawaiians, just as it has for American Indians 
throughout the past century, and Alaska Natives for decades.
    The Akaka Bill does not permit total independence; it will not 
subject the United States or Hawaii to greater potential legal 
liability; and it does not allow gambling. Nor would passage of the 
bill reduce funding for other native groups, who, by the way, 
overwhelmingly support the bill. Instead, the Akaka Bill will finally 
give official and long overdue recognition to Native Hawaiians' 
inherent right of self-determination, and help them overcome, as the 
United States Supreme Court in Rice put it, their loss of a ``culture 
and way of life.'' The Akaka Bill would yield equality for all of this 
great country's native peoples, and in the process ensure justice for 
all.

    Mr. Chabot. Mr. Coffin, you are recognized for 5 minutes.

             TESTIMONY OF SHANNEN COFFIN, PARTNER, 
                   STEPTOE & JOHNSON, L.L.P.

    Mr. Coffin. Mr. Chairman, and Members of the Subcommittee.
    Mr. Chabot. If you could turn that mike on, just hit the 
button there.
    Mr. Coffin. There we go. Mr. Chairman and Members of the 
Subcommittee. I would also like to thank the Subcommittee for 
the opportunity to discuss the constitutionality of H.R. 309. I 
am disheartened, however, that today's hearing is necessary. 
However noble its purpose, and however good the people it 
addresses--and I have no doubt of that--Congress's 
consideration of this legislation not only has the potential to 
be extraordinarily divisive, it also raises serious 
constitutional questions. The Supreme Court has observed that 
distinction between citizens based solely on ancestry are, by 
their very nature, odious.
    Under the Supreme Court's equal protection jurisprudence, 
legislation that defines citizens on the basis of race is 
subject to strict judicial scrutiny and will be invalidated 
unless the classification is necessary and narrowly tailored to 
achieve a compelling State interest. This exacting standard 
applies whether the racial classification favors or disfavors a 
particular racial minority.
    There is no doubt that H.R. 309 uses suspect racial 
classifications. It establishes, under the guise of Federal 
law, a racially-separate government that will exercise broad 
sovereign powers, the eligibility for which is limited to 
Native Hawaiians as defined by ancestry.
    This isn't the first time, Mr. Chairman, that we have been 
down this road. As you mentioned, in Rice v. Cayetano the 
Supreme Court invalidated similar State legislation that 
limited the eligibility to vote in elections for a statewide 
office to lineal descendents of those inhabitants of the 
Islands at the time of Captain Cook's arrival in 1778. The 
Court flatly rejected the argument that such a definition was 
not a racial classification, reasoning that ancestry can be a 
proxy for race and, in that case, as in this case, it was.
    The very object of the statutory definition in question in 
Rice was to treat early Hawaiians as a distinct people 
commanding their own recognition and respect. ``This ancestral 
inquiry,'' the court concluded, ``implicates the same grave 
concerns as a classification specifying a race by name. One of 
the principal reasons it is treated as a forbidden 
classification is that it demeans the dignity and worth of a 
person to be judged by ancestry instead of his own merits and 
essential qualities.'' Under this standard the race-based 
legislation proposed in H.R. 309 is presumptively invalid, and 
it is not saved by the artifice that it creates, treating the 
Native Hawaiian people as an Indian tribe.
    H.R. 309's preamble finds that the Constitution vests 
Congress with the authority to the address the conditions of 
the indigenous native people of the United States. But the 
Constitution says nothing about the condition of ``indigenous 
native people.'' Instead, Congress is authorized by the 
Constitution to regulate conduct with Indian tribes. But for a 
number of reasons, Native Hawaiians do not as a group fall 
within the constitutional meaning of this term.
    It bears emphasis that in Rice v. Cayetano, the Hawaiian 
government itself in its brief in opposition to the petition 
for a writ of certiorari to the Supreme Court, argued that 
``the tribal concept simply has no place in the concept of 
Hawaiian history.'' That was a statement by Governor Cayetano 
himself. The reasons for this admission are plenty but to 
summarize a few--Native Hawaiians are not geographically or 
culturally separated in Hawaii.
    Indeed the historians will tell you--and I am not one--but 
there is a long and diverse history of intermarriage between 
ethnicities that exercise any kind of organizational or 
political power. There are no tribes, no chieftains, no agreed-
upon leaders, no political organizations and no monarchs in 
waiting. At the time referenced in the bill, 1893, there was no 
similar race-based Hawaiian government. The Queen's subjects 
were often naturalized citizens coming from all over the globe.
    Congress cannot change this conclusion by arbitrarily 
recognizing Native Hawaiians as an Indian tribe, as Mr. Chabot 
recognized from the Sandoval case. Even Justice Breyer, in his 
separate concurring opinion in Rice, noted, ``there must be 
some limit on what is reasonable, at least when a State which 
it is not itself a tribe, creates the definition of tribal 
membership.''
    The passage of this bill would set the Nation down a 
dangerous slippery slope and effectively allow Congress to 
create new race-based government entities outside of our 
constitutional structure--to be used by groups in Texas and 
California and Louisiana, all racially-distinct groups with an 
individual history, to acquire special governmental privileges.
    While none of these groups may currently possess the 
political clout to accomplish this objective, who is to say 
that their political persistence over time would not result in 
similar separatist governmental proposals?
    Mr. Chairman, if I may make one more observation, before I 
close, it's ironic to me that the triggering date of this 
legislation is January 1, 1893, Mr. Chairman. At that very 
time, only a day later, the Louisiana Supreme Court denied 
rehearing of a petition for relief by a Creole activist named 
Homer Plessy only one day later, who had the audacity to sit in 
an all-whites car in a Louisiana rail coach, when he was, in 
fact, one-eighth black. A few years later, however, the Supreme 
Court of the United States upheld his criminal conviction 
concluding that separate-but-equal was our constitutional 
standard.
    H.R. 309 would take us back to those days when race was an 
appropriate basis to deny a class of people the liberties 
secured by the Constitution. As Justice Harlan said in his 
dissent, we are and we should be a color blind society. I urge 
Congress not to pass H.R. 309.
    Mr. Chabot. Thank you.
    [The prepared statement of Mr. Coffin follows:]
                Prepared Statement of Shannen W. Coffin




















    Mr. Chabot. Mr. Burgess, you are recognized for 5 minutes.

           TESTIMONY OF H. WILLIAM BURGESS, FOUNDER, 
                         ALOHA FOR ALL

    Mr. Burgess. Aloha and good afternoon. Thank you for 
allowing me to testify. Thank you for asking the big question 
first, can Congress create a race-based government? For the 
many people in Hawaii who are gravely concerned about the Akaka 
bill, it is critically important to address the question of 
constitutionality first. If Congress doesn't, and the bill is 
enacted, that in itself will have a destabilizing effect in the 
State of Hawaii. It will validate the radical minority 
separatists, the red shirts marching in the streets, the 
protestors demanding that the U.S. pack up and leave Hawaii.
    By the time the courts go through their process, appeals 
and trials and further appeals, 5 or more years will have 
passed. It may be impossible by that time to put the Aloha 
State back together again.
    Now how do the bill's proponents address the question of 
constitutionality? They are in denial. They deny that the 
Constitution applies because Native Hawaiians are indigenous 
people. That's the same argument that they made unsuccessfully 
in Rice v. Cayetano. That's the same argument that was made 25 
years ago when a State senator asked the Attorney General of 
Hawaii for an opinion whether this restricted voting in the OHA 
elections was constitutional, and the attorney general at that 
time cited Morton v. Mancari as an authority for the 
proposition that indigenous people can be treated separately.
    But Rice v. Cayetano put that to rest. It said that Morton 
v. Mancari applies only to Federally-recognized tribes, and it 
doesn't apply to State agencies.
    Now, nevertheless, the Attorney General of the State of 
Hawaii made that argument again in Arakaki v. State. That was 
the first suit to invalidate--following the Rice decision--to 
invalidate the requirement that State--that in the State law, 
as saying that the trustees, even though everyone could vote, 
the trustees had to be Native Hawaiian. And the district court 
rejected that, rejected the Mancari argument. They have been 
wrong every time they made their argument, and they are wrong 
now. Here is how their argument goes, as I understand it: All 
we want for Native Hawaiians is parity. American Indians and 
Alaska natives get all these benefits, it's just not fair for 
Native Hawaiians not to get them too.
    But the Akaka bill would not give Native Hawaiians just 
parity, it would give them supremacy. It would bestow upon 
Native Hawaiians, merely by virtue of their ancestry, power to 
create their own separate sovereign government.
    Millions of people in the United States have some Native 
American ancestry. According to census 2000, 2.1 million people 
on their census forms said they were part American Indian. Some 
anthropologists estimate that as much as 15 million people in 
the United States have some discernible amount of Native 
American blood.
    But only those Native Americans who are members of 
Federally-recognized Indian tribes have the power or have the 
right of continuing a preexisting tribal government. No Native 
American has the power, merely by virtue of ancestry, to create 
a government. If Native Hawaiians were given parity with native 
Americans, then the U.S. Indian laws would apply to them.
    Under the mandatory criteria for recognition of tribes, 
Native Hawaiians wouldn't qualify, because they have no 
government to be recognized. Congress can only recognize 
existing sovereigns. It can't create new ones. There is no such 
power in the Constitution.
    Oh, I see my time is up, Mr. Chairman, may I wrap up 
briefly in one more minute?
    Mr. Chabot. Yes, if you would wrap it up, thank you.
    Mr. Burgess. To summarize, the arguments for the Akaka bill 
are the arguments for the same old make-believe tribe and 
pasted-on victimhood, dressed up in nice language, but with no 
shred of better logic or law than they had 5 years ago or 25 
years ago. The U.S. can't give rights to groups of people 
merely because they share an ancestry. If there was no tribal 
government continuing to the present day, there is no basis for 
special treatment. Congress can write laws, but it can't change 
history. The fact that Congress passed 160 unconstitutional 
laws doesn't make any one of them legitimate.
    Thank you, Mr. Chairman.
    Mr. Chabot. Thank you very much.
    [The prepared statement of Mr. Burgess follows:]
                Prepared Statement of H. William Burgess












    Mr. Chabot. Mr. Fein, you are recognized for 5 minutes.

              TESTIMONY OF BRUCE FEIN, PRESIDENT, 
                      THE LICHFIELD GROUP

    Mr. Fein. Thank you, Mr. Chairman, and Members of the 
Subcommittee. I am grateful for the opportunity to present my 
views on the constitutionality of H.R. 309. It is somewhat 
alarming that the Senate has taken this particular bill as the 
companion of H.R. 309 to the floor almost without considering 
the nature of constitutionality.
    So the Congress is a legislative body of limited powers 
under the Constitution. In order to act, you must find 
affirmative authority in article 1, which identifies the 
enumerated powers of Congress. The only reference in article 1 
that could plausibly apply to Native Hawaiians is article 1, 
section 8, clause 3, which empowers Congress to regulate 
commerce with Indian tribes.
    Now, to regulate commerce is not to create a governing 
entity of any race or otherwise. Justice Samuel Miller in the 
Kagama case made that quite clear. The reference to Indian 
tribes in that provision of the Constitution is recognition of 
a preexisting sovereign power exercised by those who had a 
common ancestry. They occupied a distinct territory. They 
exercised government power through leadership or otherwise over 
their particular members.
    There is nothing else in article 1 that would plausibly--
other than this particular Indian commerce clause--enable 
Congress to create the race-based government, the Native 
Hawaiian entity that is contemplated by H.R. 309.
    The other provision that is occasionally invoked is the 
treaty power. Treaties were, indeed, consummated between the 
United States and Indian tribes, both prior to the 
constitutional ratification in 1789 and for perhaps 100 years 
thereafter.
    But treaties also were negotiated between the United States 
and the Kingdom of Hawaii after its formation in 1810, and the 
language is quite distinct. When you view the description of 
the ratifying parties in both cases, the United States 
invariably, in its treaties with the Indian tribes, identifies 
the tribes by name, with an understanding of what particular 
leadership existed and an authority to bind the members of the 
tribe.
    If you compare the treaties with the Kingdom of Hawaii, 
they are really carbon copies of the same kind of treaties that 
were negotiated with Britain and France, the same language and 
the same understanding that the United States was not dealing 
with a tribe but with a foreign nation. A foreign nation is 
distinct from a Indian tribe in article 1 section 8, clause 3.
    Indeed, that understanding can be fortified by Senator 
Daniel Inouye. Which he said earlier this year because the 
Native Hawaiian government is not an Indian tribe, a body of 
Federal Indian law that would otherwise customarily apply when 
the United States extends material recognition to an Indian 
group does not apply. He, himself, I think, would be a very 
strong witness against the idea that Native Hawaiians at all 
are like Indian tribes.
    But again, I go beyond that and say there is no plausible 
affirmative power in Congress to create a race-based government 
where none existed before. There is a suggestion that there 
aren't racial classifications in this particular bill. But I 
think the clearest example of that error is the requirement 
that the Secretary of Interior appoint 9 Native Hawaiians in 
order to set the creation of the Native Hawaiian entity in 
motion.
    There is nothing at all that would require those particular 
nine Commissioners to be Native Hawaiians opposed to white or 
yellow or red or otherwise. They can all read the law and 
implement the particular prescriptions for setting up the 
Native Hawaiian government. Yet there is a race-based criterion 
here. I think that discredits the idea that racial 
distinctiveness is not the underlying purpose and motivation of 
the statute.
    There has also been a suggestion that because there are so 
many laws passed that recognize the distinction of Native 
Hawaiians that somehow they have sort of grandfathered this in 
is constitutional, but I point out it leaves at least three 
major cases of the United States Supreme Court, which upended 
practices which were more than 200 years old.
    In Elrod v. Burns, for example, the Court held 
unconstitutional patronage for Government employment that had 
been in practice for more than 2000 years. In Bowling v. 
Sharpe, the Supreme Court overturned a Congressional decision 
made as early as 1866 to require segregated schools in the 
District of Columbia. In INS v. Chata, the Supreme Court 
overturned hundreds of legislative vetoes that had commenced in 
1930, in 1982, holding that every one of them violated the 
Presentment Clause.
    So, there isn't any reluctance of the Supreme Court to find 
that longevity is not the equivalent of constitutionality. 
Also, with regard to the insinuation that if there were 
injustices committed against Native Hawaiians at sometime in 
the 1893 overthrow or otherwise, this particular Akaka bill is 
the only way to remedy those. That is absolutely false. When it 
was found by this Congress that there were injustices to the 
Japanese Americans during World War II, there is the Civil 
Liberties Act of 1988 that provided reparations of $20,000 to 
those who are detained or their families. And that didn't 
require creating a race-based Japanese government.
    With regard to the Indians, there is the Indian Claims 
Commission that was established and operated for many, many 
years, amid claims of moral or equitable entitlement against 
the United States use. So there are hundreds of alternate ways 
other than creating a race-based sovereignty in which these 
historical grievances can be assessed.
    I am not suggesting that all of the claims are valid. Some 
may be, maybe some are not. But there is no requirement that 
they undertake a race-based government in order to overcome 
historical grievances.
    Mr. Chabot. Your time has expired, Mr. Fein, if you could 
wrap up.
    Mr. Fein. Yes, the last thing I would say is that the one 
thing that has distinguished the strengths of the United States 
has been commitment to equal opportunity and equal dignity 
irrespective of race or ancestry. I think that came home right 
after 9/11. We all stood up. We all felt the thrill of being 
Americans. We would not be intimidated. Because we had our 
courage, our patriotism awakened by these high and noble 
ideals. The Akaka bill, in my judgment, besmirches those 
ideals. It would weaken the country and it must be defeated. 
Thank you.
    Mr. Chabot. Thank you very much.
    [The prepared statement of Mr. Fein follows:]
                    Prepared Statement of Bruce Fein


























    Mr. Chabot. The Members of the panel here will now have 5 
minutes each to ask questions.
    I would begin by asking unanimous consent to enter three 
letters into the record. The first is a July 13 letter from the 
Department of Justice to Senator McCain. Second is a letter 
dated July 19 from Senator Kyl to this Subcommittee and the 
third is a letter from a Hawaiian citizen by the name of David 
Rosen.
    Without objection, they will be entered into the record.
    If any other Members want to enter such letters or things, 
of course as always, we would permit that to occur. I now 
recognize myself. I would direct this question to each of the 
panel members.
    Some of article 1, section 8 has been referred to, I think, 
by all of the Members. The Indian commerce clause states that 
``Congress shall have the power to regulate commerce with the 
Indian tribes.''
    Now, H.R. 309 and its proponents suggests that the Indian 
commerce clause confers to Congress the power to regulate all 
aboriginal, indigenous people. What authority does article 1, 
section 8 give to Congress, and what is your best shot at what 
is the difference between what Congress has done with respect 
to Native Americans and to Alaskans versus what is being asked 
for in this particular legislation?
    We will start with you, Mr. Bennett. We will just go down 
the line.
    Mr. Bennett. Thank you. I think that the constitutional 
issue is whether the Congress' action, in recognizing an 
indigenous American group, is arbitrary. There has been no case 
that I know of in the history of the republic where the courts 
have said that the Congress has overstepped its authority.
    I believe the Indian Commerce Clause, as interpreted as 
recently as Lara and back in Morton v. Mancari has said, that 
recognition to aboriginal groups in the United States is 
political. It is not racial, that Congress' power in this 
regard is plenary and exclusive. And the fact that Hawaii was 
an after-acquired part of the lands of the United States, as 
opposed to part of the 13 original colonies, is entirely 
irrelevant to the constitutional analysis.
    So, in short, I believe that Congress's power is plenary. I 
believe that the Supreme Court has said over and over again 
that Congress's power is plenary. I believe that Congress has 
the right to say that Native Hawaiians are so akin to Indian 
tribes and are unquestionably aboriginal inhabitants of part of 
the United States, part of the aboriginal requirements, that it 
is a political decision for the political branches to determine 
whether or not to afford recognition and that such recognition 
would clearly be upheld.
    Mr. Chabot. Thank you. Mr. Coffin.
    Mr. Coffin. Mr. Chairman, I disagree that this is a plenary 
power of Congress. There is a defined term in the Constitution. 
Well, there is a specific term in the Constitution, that is 
Indian tribes.
    The Supreme Court, as early as 1900 in Montoya v. United 
States, described an Indian tribe as a body of Indians having 
the same or similar race, united community under one leadership 
and inhabiting particular, although perhaps ill-defined 
territory. So there are components to the definition that 
certainly aren't met here when you are defining solely based on 
race.
    Mr. Chabot. Thank you. Mr. Burgess.
    Mr. Burgess. Mr. Chairman, my impression is----
    Mr. Chabot. I think your mike is not on.
    Mr. Burgess. Oh, I'm sorry. Thank you. This bill is 
radically broader than the treatment of Native Americans in the 
United States. As I said originally, that Native Americans, to 
be recognized for special treatment, have to be members of 
Federally-recognized tribes. There are millions that don't have 
that qualification, simply because they are not members of 
recognized tribes. They are subject to the Constitution just 
like everyone else.
    But this--think of the precedent that this would set, if 
the principle is adopted--which Mr. Bennett and other 
proponents of the bill offer--just think of what it says. 
Anyone who is a descendant of anyone who is indigenous to the 
United States, to the land that later became part of the United 
States, has the right to form their own new separate 
government.
    Imagine how about how the people in the southwestern part 
of the United States who are seeking to liberate Colorado, 
Arizona, parts of California, if those indigenous people 
simply, because of their ancestry, have the right to create 
their own separate government. What is going to happen to the 
southwestern part?
    Mr. Chabot. Indeed before I run out of time, I would like 
to let Mr. Fein answer, thank you.
    Mr. Fein. It is always easier to start with the actual 
language, the Constitution, rather than resorting to conundrums 
and emanations. The language is Congress has authority to 
regulate commerce with Indian tribes. That doesn't come close 
to suggesting that Congress has the power to create a tribe or 
an entity that didn't exist before. You can quote from the 
Department of Interior itself, its chief attorney in a famous 
case, Kearny v. Babbitt, saying ``when the Department of 
Interior recognizes a tribe, it is not saying you are now a 
tribe, we are saying that we recognize that your sovereignty 
exists.''
    We don't create tribes out of thin air. That's exactly what 
this bill would do. It would create a tribe, a Native Hawaiian 
entity that doesn't exist now. It never existed during the 
Hawaiian kingdom. Indeed, it represented, perhaps, the best 
example of a fusion of Native Hawaiian or non-Native Hawaiian 
influences.
    If you would just indulge me, let me read this quote from a 
historical expert on the Kingdom of Hawaii, R.S. Kuykendall, 
``we can see that the policy being followed in the Kingdom 
looked to the creation of an Hawaiian State by the fusion of 
native and foreign ideas and the union of native or foreign 
personnel bringing into being a Hawaiian body politic in which 
all elements, both Hawaiian and haole should work together for 
the common good under the mild and enlightened rule of a 
Hawaiian king.'' That, Mr. Chairman, is not a description of an 
Indian tribe.
    The Chairman. Thank you very much. I might note to other 
Members, our clock is on the blink here, it looks like the 
yellow light isn't working. So bear with us here. Mr. Nadler is 
recognized for 5 minutes.
    Mr. Nadler. Thank you, I was intrigued by what Mr. Fein 
said. So the fact that the tribe of Hawaiians gave political 
rights under the Kingdom to other people means they could no 
longer be considered as a tribe, is that what you are saying?
    Mr. Fein. No, that is not accurate.
    Mr. Nadler. Let me ask Mr. Bennett to comment on the 
comments of the constitutional speakers. We have heard over the 
last few minutes. Why do you think they are wrong?
    Mr. Bennett. Well, why I think they are wrong because the 
words of the Indian Commerce Clause have to be taken with the 
gloss that the Supreme Court has used in interpreting them for 
well over 100 years. Indeed, in the Lara case, the Supreme 
Court said specifically that Congress's power in their area is 
plenary and exclusive. So it is----
    Mr. Nadler. That means that Congress can create a tribe?
    Mr. Bennett. It means that Congress can recognize an 
indigenous people as a tribe even though their form of 
government in the past was different. Even though they have 
ceased to have a government, that was exactly the issue in Lara 
itself. Congress had derecognized the Menomonee tribe. It had 
terminated their tribal existence, and then some years later 
Congress through the Menomonee Restoration Act, Congress 
resurrected the Menomonee tribe and the argument was Congress 
can't resurrect what no longer exists. And the Supreme Court 
said, no that is just simply wrong. It is up to the political 
branches to make these kinds of decisions.
    I believe that it is impossible to read Lara without 
concluding that in this case, with the historic distinct 
culture, religion and government of the Hawaiian people, that 
at one time existed and that was terminated by force with the 
assistance of the United States, I think it is just clear that 
our Congress can exercise its plenary power to right that 
injustice and to recognize Native Hawaiians.
    Mr. Nadler. So you would say that if the people of Hawaii, 
native peoples of Congress were recognized as a quote, unquote, 
Hawaiian tribe, then the fact of the annexation to the conquest 
of Hawaii, when they had native government under Queen 
Liliuokalani, that they gave citizenship rights to other 
peoples was the choice of that that tribe and doesn't detract 
from the possibility of recognizing it as such?
    Mr. Bennett. Absolutely. The fact that when the Hawaiians 
had a government, the fact that they accorded rights to 
individuals who weren't Hawaiians, certainly the Supreme Court 
would say it would be absurd to hold that argument against 
them. In fact, one of the arguments made by the opponents of 
the bill is that because the government was completely 
destroyed and didn't exist anymore, that prevents Congressional 
recognition. And that is equally absurd to say that if the 
destruction had only been partial, and hadn't been complete, 
then the government could be recognized today. It makes no 
legal sense. It certainly makes no textual sense. It makes no 
sense for a country that prides itself on its justice and 
fairness.
    Mr. Nadler. Now, Mr. Bennett, now, Mr. Attorney General, is 
it your reading then that by Indian tribe, the Constitution 
means any indigenous group of people that Congress chooses to 
recognize?
    Mr. Bennett. I think that it absolutely requires certain 
characteristics, including being the original aboriginal 
inhabitants of particular territory, and the straw men that are 
being set up with the southwest.
    Mr. Nadler. Are not the original aboriginal inhabitants?
    Mr. Bennett. Exactly.
    Mr. Nadler. So, we could recognize, if we wanted to, the 
Aztecs in California, if there were any, but not the Mexicans?
    Mr. Bennett. Absolutely. That's absolutely right.
    Mr. Nadler. It is your contention that it is the plenary 
power of Congress to recognize the Hawaiian people as an 
indigenous people or to recognize six different groups of 
Hawaiian people as six different Hawaiian tribes, it is up to 
Congress?
    Mr. Bennett. It is, but I don't think anyone has ever 
proffered----
    Mr. Nadler. So I am trying to say how the Congress are. We 
can define it any way we want as long as they are the 
aboriginal people.
    Mr. Bennett. As long as they are the aboriginal people and 
as long as it is not arbitrary.
    Mr. Nadler. You might say six would be arbitrary.
    Mr. Bennett. I would say historically it might be, yes.
    Mr. Nadler. Thank you very much. I yield back.
    Mr. Chabot. Thank you. The gentleman from Iowa, Mr. King, 
is recognized for 5 minutes.
    Mr. King. Thank you, Mr. Chairman, I do appreciate this 
testimony and the distance that some of you had to travel to be 
here today. I do think this is the appropriate place to discuss 
this issue before the Constitution Subcommittee. I ask you all 
to consider our Constitution, consider some of the constraints 
that were bound by here in this Congress.
    We swear an oath to uphold the Constitution of the United 
States. It doesn't always adhere to the letter of this 
Constitution. It should be. I appreciate the points made by Mr. 
Fein with regard to our Constitution.
    As I look back on this testimony and try to sort out here 
the relevant points, and there are a lot of different points 
that have been brought between all of the different witnesses 
here, it strikes me that as I listen to the testimony of Mr. 
Bennett, and I had some notes here that says race is one of the 
characteristics of a tribe. And, let me see, the question of--
is this determination of a Native Hawaiian race-based, the 
answer was a resounding no, which I heard very clearly, Mr. 
Bennett.
    So I turned to the bill, and I look under definition of 
Native Hawaiians, and it says an individual who is one of the 
indigenous native people of Hawaii and who is a direct lineal 
descendent of the aboriginal indigenous native people. Now, if 
you are going to measure the inclusion in a native aboriginal 
people by their descendency, how do you argue that this is not 
a race-based type of determination on Hawaiian citizenship or 
Hawaii and native aboriginal membership?
    Mr. Bennett. I would argue in the words of the Supreme 
Court of the United States the issue in Morton v. Mancari was a 
benefit that was provided to certain Indians who were only one 
quarter blood or more. And the challenge made in Morton v. 
Mancari is the criteria here is race, this is clearly violative 
of the 14th amendment. And what the Supreme Court said is 
absolutely not. Although you are looking at blood quantum, the 
power of Congress to recognize aboriginal people or Indian 
tribes, the power of Congress to make these divisions is a 
political determination of Congress, not racial.
    Mr. King. Thank you, Mr. Bennett, and I appreciate that. 
That is a clarification that I really needed. So if it is not 
race and it not ancestry, would you concede that Congress has 
the authority that if the bill is going to pass, to declare 
everyone who has a residence or citizenship of Hawaii to be a 
member of native aboriginal people?
    Mr. Bennett. No, because quite clearly myself, having been 
born in Brooklyn, was not a resident----
    Mr. King. So if it is not race, what is the distinction if 
it is a Hawaiian Native born there?
    Mr. Bennett. Sir, I can't help to repeat myself, which is 
to say the Supreme Court, going back to the Montoya case, which 
my colleague on my left quoted, said that one of the 
determinants of whether there is a recognizable tribe is indeed 
race, but the Supreme Court has also said, in case after case, 
that the fact that this is one of the components does not make 
the preferences or the creation race-based.
    It makes it a political determination by Congress and 
Morton----
    Mr. King. But yet, Mr. Bennett, I have not heard anyone 
draw a distinction on how you determine a Native Hawaiian 
without going back to determine race or ethnicity as the 
component as a distinction if being born in Hawaii, being a 
Hawaiian of multi-generational Hawaiian does not qualify, then 
it seems to me that your only criteria left are to do with race 
and ethnicity.
    So I would ask you, then, if that is the case and if your 
testimony is accurate with regard to no, it is not race based, 
would you support an amendment that would say nothing in this 
act shall be construed to authorize or permit the exercise of 
governmental powers by any entity that is defined by its 
members under race or ancestry?
    Mr. Bennett. No. I think that that would clearly contravene 
the body of law that is built up under the Indian Commerce 
Clause. Native Hawaiians have more than simply common racial 
characteristics. They are united in community. They, at one 
time, were under one government. They were inhabiting a 
particular territory, however ill-defined, the very criteria 
that the court in Montoya looked at in 1901, and the fact again 
that one of the components is race or ancestry----
    Mr. King. Then the only other component that you have 
mentioned in that is inhabiting a similar community which also 
works for every other ethnicity and they are also everywhere in 
America.
    I turn to Mr. Fein to respond to this.
    Mr. Fein. I think Mr. Bennett is simply wrong in suggesting 
that from the beginning of the Kingdom in 1810 thereafter to 
the ouster of Queen Liliuokalani, that there ever was a 
particular community or reservation or land set aside for 
Native Hawaiians. The fact is that there wasn't a government 
for Native Hawaiians. The leadership was always a leadership of 
everyone who was on Hawaii, native and non-native alike.
    It was similar to the government of the Louisiana Purchase 
after 1807 when the Government established by the United States 
applied equally to indigenous Creoles or anyone else. There 
wasn't any separateness.
    The only thing that the Native Hawaiians had in common with 
American Indians is that they are both relying upon ancestry. 
Other than that, all the other distinctive features that the 
Supreme Court has enumerated to justify recognizing an Indian 
tribe are absent with regard to Native Hawaiians.
    The other thing I would like to underscore is that the 
Indian tribes and their position is an enormous exception to 
the general thrust and basic background of our Constitution. 
All the values, the liberties and the rights are based upon the 
fundamental idea of individual rights and equality, 
irrespective of race, ethnicity, religion or otherwise.
    That is the background against which we are operating today 
in which we were operating in 1776. The Indian tribes were 
recognized as a preexisting situation, a fete accompli that 
they were dealing with at the time, recognizing that at war 
then clashed with the basic values of the Constitution, and 
therefore the Supreme Court would view with the highest kind of 
scrutiny and skepticism any deviation from that basic 
fundamental libertarian background in recognizing any power of 
Congress to create an entity that could violate the 
Constitution rather than enjoy the same rights and liberties of 
everyone else.
    Mr. Chabot. Gentleman's time has expired. Gentleman from 
Virginia, Mr. Scott is recognized for 5 minutes.
    Mr. Scott. Mr. Chairman, you described an unusual process 
that I think I will take advantage of because you said we could 
take advantage of the resource of our friends from Hawaii. And 
I would ask the gentleman from Hawaii, Mr. Abercrombie, if you 
had a question to ask, what would that question be?
    Mr. Abercrombie. Thank you very much. Perhaps, Mr. 
Chairman, we could help enlighten the process a little bit 
because so far we have had an excellent discussion in terms of 
some of the more abstract and philosophical points associated 
with the Constitution. But as we all know, the Constitution--
the implementation of the Constitution takes place in real 
circumstances. So I would ask Mr. Bennett, if he could, excuse 
me, Mr. Bennett, domestic tranquility is now at stake here. But 
hopefully you are going to be my excuse.
    Mr. Bennett, perhaps you could help enlighten the Committee 
by putting this into context. You mentioned a context before 
that this has to be played out in. The Admissions Act of 1959, 
which brings Hawaii into the Union, specifically provided for 
administration of what are called ceded lands.
    And Mr. Chairman, I will spare you the history of land 
tenure when you go from a prefeudal Kingdom to a shotgun 
Republic to an annexed territory to a State in the Union of the 
United States. But please take my word for it, there is 
something called ceded lands. It is hundreds of thousands of 
acres. When you include with that--and I would ask you to 
respond also, Mr. Bennett, the question of Hawaiian homelands 
and the establishment by the Congress of Hawaiian homelands 
with a blood quantum associated with it, if you could put into 
context then your position that this was a historical and 
political decision as opposed to a racial decision and make 
reference to what the Congress demanded and created, namely the 
Admissions Act, which brought Hawaii into the Union as a State 
and the Hawaiian Homelands Act, which is also created by the 
Congress in order to place Native Hawaiians on the land?
    Mr. Bennett. Thank you. And indeed, what you said is 
entirely accurate, that Hawaii would not have been allowed to 
become a State by the Congress unless it specifically included 
in its Constitution a guarantee that it would continue the 
Hawaiian homes program, which Congress established in the 
1920's, which bases the right to occupy land on blood quantum 
of Native Hawaiians specifically, and based upon the fact that 
the government of the State of Hawaii would treat what you have 
described as the ceded lands, and hold them, in part, 
specifically for the benefits of the people, Native Hawaiians 
with a particular blood quantum. So that was part of the 
requirements imposed by this Congress on Hawaii to enter the 
union.
    Mr. Abercrombie. Ceded lands were--essentially for purposes 
of our conversation here--lands that came from the time of the 
kingdom, from the overthrow of the kingdom and were 
administered by successive governmental entities on behalf of 
Native Hawaiians, the benefit of Native Hawaiians, as they 
ostensibly had been administered when the kingdom was in 
existence, correct?
    Mr. Bennett. Absolutely.
    Mr. Chabot. Is the gentleman from Virginia--an additional 
minute, but the lights are out but you have another minute.
    Mr. Scott. I would ask the other gentleman from Hawaii, if 
he had a question, what would that question be?
    Mr. Chabot. I had a feeling you might ask that.
    Mr. Case. Mr. Coffin, Burgess or Fein, any one of you, yes 
or no, Mr. Bennett made a representation that there had never 
been a case decided by the Supreme Court in which Congress' 
exercise of its power under the Indian Commerce Clause to 
provide Federal recognition to an Indian tribe had ever been 
overturned? Yes or no? Is that true? Are you aware of any such 
case in the 200-plus years of law on this subject.
    Mr. Coffin. The Supreme Court, on several occasions, 
recognized the limitations of Congress.
    Mr. Case. Have they ever overturned Congress' plenary 
powers to provide Federal recognition----
    Mr. Coffin. The issue has not been squarely presented to 
the United States Supreme Court, but in the most recent case 
dealing with the Native Hawaiian situation, Supreme Court 
scratched its head and said, there may very well be limitations 
on Congress' power to recognize----
    Mr. Case. Are you referring to the Rice case----
    Mr. Coffin. Yes, I am.
    Mr. Case. The decision under the 15th amendment----
    Mr. Coffin. And the 14th amendment, Mr. Case, provides the 
same answer.
    Mr. Chabot. The gentleman's time has expired. We want to 
thank the panel for their testimony here this afternoon. It has 
been very helpful, as I mentioned at the outset of the hearing, 
we don't have direct jurisdiction over this particular bill. 
But it does raise significant Constitutional issues, and that 
was the purpose of the Constitutional Subcommittee holding this 
hearing this afternoon. I thought all four of the witnesses 
were very good and very helpful. I want to thank the Members 
for their attendance here this afternoon.
    Mr. Nadler. Could I just ask that the record reflect that 
we have been joined for much of this hearing by Mr. 
Faleomavaega?
    Mr. Chabot. Yes. Absolutely. And I would have to say Eni is 
one of the more distinguished Members of the House of 
Representatives. And he and I had the good fortune to represent 
the Congress in the United Nations for a year together.
    Mr. Faleomavaega. Would the Chairman yield?
    Mr. Chabot. Yes, I will.
    Mr. Faleomavaega. I know the Chairman is going to be most 
reasonable and fair in the process. And I know that he will 
decide in our favor to recognize----
    Thank you, Mr. Chairman.
    Mr. Chabot. I agree with the first part. I don't know if I 
agree with the second part.
    So I want to thank again everyone for coming all those 
folks who also traveled all the way from the great State of 
Hawaii to be with us here this afternoon. And if there is no 
further business to come before the Committee, we are 
adjourned. Thank you.
    [Whereupon, at 3:15 p.m., the Subcommittee was adjourned.]

                            A P P E N D I X

                              ----------                              

               Material Submitted for the Hearing Record

  Joint Prepared Statement of the Honorable Neil Abercrombie and the 
Honorable Ed Case, Representatives in Congress from the State of Hawaii









       Appendix to the Statement of the Honorable Mark Bennett: 
            Table of Federal Acts Affecting Native Hawaiians











































    Appendix to the Statement of the Honorable Mark Bennett: ``The 
    Authority of Congress to Establish a Process for Recognizing a 
  Reconstituted Native Hawaiian Governing Entity,'' by Viet D. Dinh, 
     Georgetown University Law Center and Bancroft Associates PLLC





















































   Appendix to the Statement of the Honorable Mark Bennett: Position 
        Statement of the Attorney General of the State of Hawaii



































































Appendix to the Statement of Shannen W. Coffin: Brief of Amici Curiae, 
 Campaign for a Color-Blind America, Americans Against Discrimination 
 and Preferences, and the United States Justice Foundation, In Support 
 of Petitioner, Filed by Shannen W. Coffin, Counsel of Record for Ami 
      Curiae in the case of Harold F. Rice v. Benjamin J. Cayetano



























   Appendix to the Statement of Shannen W. Coffin: Harold F. Rice v. 
   Benjamin J. Cayetano, On Petition For a Writ of Certiorari To The 
  United Statees Court of Appeals For The Ninth Circuit, Respondent's 
                          Brief in Opposition









 Appendix to the Statement of Shannen W. Coffin: United States Senate, 
  Republican Policy Committee, Jon Kyl, Chairman, ``Why Congress Must 
          Reject Race-Based Government for Native Hawaiians''



























Appendix to the Statement of H. William Burgess: HI-Akaka Bill--Survey 2



























Letter to Senator John McCain from the Honorable William B. Moschella, 
    Assistant Attorney General, Office of Legislative Affairs, U.S. 
                         Department of Justice





       Letter to the Honorable Steve Chabot from Senator Jon Kyl

















































               Prepared Statement of David B. Rosen, Esq.







                                 
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