    [Senate Hearing 110-287]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 110-287

       S. 310, THE NATIVE HAWAIIAN GOVERNMENT REORGANIZATION ACT OF 2007

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

                                    HEARING

                                   before the

                          COMMITTEE ON INDIAN AFFAIRS
                              UNITED STATES SENATE

                           ONE HUNDRED TENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                  MAY 3, 2007

                                   __________

             Printed for the use of the Committee on Indian Affairs

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                          COMMITTEE ON INDIAN AFFAIRS

                    BYRON L. DORGAN, North Dakota, Chairman
                      CRAIG THOMAS, Wyoming, Vice Chairman
    DANIEL K. INOUYE, Hawaii             JOHN McCAIN, Arizona
    KENT CONRAD, North Dakota            LISA MURKOWSKI, Alaska
    DANIEL K. AKAKA, Hawaii              TOM COBURN, M.D., Oklahoma
    TIM JOHNSON, South Dakota            PETE V. DOMENICI, New Mexico
    MARIA CANTWELL, Washington           GORDON H. SMITH, Oregon
    CLAIRE McCASKILL, Missouri           RICHARD BURR, North Carolina
    JON TESTER, Montana
                    Sara G. Garland, Majority Staff Director
                  David A. Mullon Jr. Minority Staff Director

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on May 3, 2007......................................     1
    Statement of Senator Akaka.......................................     4
    Statement of Senator Dorgan......................................     1
    Statement of Senator Inouye......................................     5
        Prepared statement...........................................     6
    Statement of Senator Murkowski...................................     9
    Statement of Senator Thomas......................................     3

                                   Witnesses

    Apoliona, Haunani, Chairperson, Board of Trustees, Office of
      Hawaiian Affairs; accompanied by William Meheula, Legal Counsel
      to the Office of Hawaiian Affairs..............................    23
        Prepared statement...........................................    24
    Bennett, Mark J., Attorney General, State of Hawaii; accompanied
      by Micah Kane, Chairman, Hawaiian Homes Commission.............    18
        Prepared statement...........................................    19
    Burgess, H. William, Aloha for All...............................    45
        Prepared statement...........................................    46
    Dinh, Viet D., Professor of Law, Georgetown University Law Center
      and Bancroft Associates, PLLC..................................    50
        Prepared statement...........................................    54
    Katsas, Gregory G., Principal Deputy Associate Attorney General,
      Department of Justice..........................................    11
        Prepared statement...........................................    13

                                    Appendix

    Abercrombie, Hon. Neil, U.S. Representative from Hawaii, prepared
      statement......................................................    99
    Additional letters, e-mails, and statements submitted for the
      record....................................................... 134-314
    Coburn, Hon. Tom, U.S. Senator from Oklahoma, prepared statement
      and written questions..........................................    97
    Kane, Micah A., Chairman, Hawaiian Homes Commission, prepared
      statement......................................................   100
    Katyal Neal, John Carroll Professor of Law, Georgetown University
      Law School, memorandum.........................................   110
    Murkowski, Hon. Lisa, June 7, 2006 floor statement...............   132
    Response to written questions submitted by Hon. Tom Coburn to:
        Haunani Apoliona.............................................   101
        Mark J. Bennett..............................................   104
        H. William Burgess...........................................   106
    Stevens, Hon. Ted, U.S. Senator from Alaska, prepared statement..    98

       S. 310, THE NATIVE HAWAIIAN GOVERNMENT REORGANIZATION ACT OF 2007

                                  ----------                              TH
    URSDAY, MAY 3, 2007

                                           U.S. Senate,
                                   Committee on Indian Affairs,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 9:30 a.m. in room
    485, Senate Russell Office Building, Hon. Byron L. Dorgan,
    Chairman of the Committee, presiding.

                  STATEMENT OF HON. BYRON L. DORGAN,
                     U.S. SENATOR FROM NORTH DAKOTA

        The Chairman. I will call the hearing to order. This is a
    hearing of the United States Indian Affairs Committee.
        Today, the Committee will hear testimony from witnesses on
    S. 310, the Native Hawaiian Government Reorganization Act. This
    legislation is intended to establish a process to reconstitute
    a Native Hawaiian government. My colleagues and good friends
    from Hawaii, Senators Inouye and Akaka, have introduced similar
    legislation since the 106th Congress. Each of these proposals
    has generated aggressive discussion here in the Senate and
    elsewhere and each time the Senators from Hawaii have reached
    out to the concerned parties to try and develop compromises.
        Considerable compromises have been made and the bill that
    is before this Committee today contains all of those
    compromises. As with any compromise, neither side is completely
    satisfied, but the ultimate goal of establishing a process to
    reorganize a Native Hawaiian government is still achieved in
    this legislation.
        I continue to support the efforts of my colleagues to
    reorganize a Native Hawaiian government. I think the process
    set forth in this bill is very reasonable and prudent. It
    allows for the Native Hawaiian people to once again have an
    opportunity at self-governance and self-determination.
        The bill also enables Federal, State, and Native Hawaiian
    governments to develop a working relationship in order to
    address many longstanding issues such as the transfer of lands
    to Native Hawaiians, jurisdiction, governmental authority and
    other matters.
        Native Hawaiians, just like Indian tribes, are the first
    Americans. They were here long before my ancestors showed up.
    They had their own governments and provided for the general
    welfare of their people. In fact, their governments worked so
    well that the founders of the United States modeled our
    Constitution after the governments of some of the first
    Americans.
        But similar to our treatment of Indian tribes, the Federal
    Government's historical treatment of the Native Hawaiians is
    not a proud moment in this Country's history. Before any
    Americans settled on the Hawaiian Islands, there existed a
    sovereign Native Hawaiian government. The United States
    recognized this sovereign native nation and negotiated four
    separate treaties with it.
        Once non-Natives began settling in Hawaii, the Native
    Hawaiian government allowed them representation in their
    government. But the non-Natives wanted control of the Hawaiian
    government. In 1893, the United States minister utilized
    American soldiers to assist non-Native revolutionaries in
    overthrowing the Native Hawaiian government.
        Although President Grover Cleveland urged the Congress to
    restore the Native Hawaiian Queen to power, the Senate Foreign
    Relations Committee ratified the actions of the non-Native
    revolutionaries. The Senate justified its ratification by
    describing the Native Hawaiian government as a domestic
    dependent nation, the same description given by the United
    States Supreme Court to Indian tribes in 1831.
        Although the United States ratified the overthrow of the
    Native Hawaiian government, we have always recognized a special
    relationship with Native Hawaiians. I am sure that the Senators
    from Hawaii will describe this relationship in great detail,
    but suffice it to say that Congress has always recognized
    Native Hawaiians as the indigenous people of Hawaii with whom
    we have certain obligations.
        As evidence of this relationship, the Congress has enacted
    over 150 statutes dealing with Native Hawaiians providing them
    with certain benefits. More, in 1993, Congress passed the
    Native Hawaiian Apology Resolution.
        I strongly prefer that our indigenous groups go through the
    Federal acknowledgment process at the Department of the
    Interior in order to establish government-to-government
    relationships with the United States. However, that
    administrative process is not available to Native Hawaiians.
    The regulations governing the process state the process is
    available only to American Indian groups indigenous to the 48
    States and Alaska. Native Hawaiians are therefore excluded.
        The Ninth Circuit Court of Appeals has upheld the exclusion
    of Native Hawaiians from this process.
        One can argue that the solution is to amend the Federal
    administrative process to allow the Native Hawaiians to
    participate, but that is a little like putting a square peg
    into a round hole in this circumstance. The Federal
    administrative process was not developed to evaluate indigenous
    groups like the Native Hawaiians. The process was designed to
    evaluate Indian groups that did not previously have a political
    relationship with the United States.
        The Native Hawaiians clearly had a previous political
    relationship with the United States. The regulations also were
    not intended to cover indigenous groups who were the subject of
    congressional action or legislative termination. Numerous
    Indian tribes that were the subject of legislative termination
    had to come to Congress or the judiciary to be restored.
        In the case of the Native Hawaiians, it was congressional
    approval of the illegal acts of others that led to the demise
    of the Native Hawaiian government. Thus, the administrative
    process cannot adequately evaluate the status of Native
    Hawaiians. I regret that, but that is the case.
        Finally, to the extent that people feel the Native
    Hawaiians should go through some sort of process in order to
    obtain a government-to-government relationship with the United
    States, they should take comfort in that S. 310 proposes to do
    exactly that, establish a process in which the Native Hawaiian
    people will work with the Federal and State governments to
    reconstitute Native Hawaiian government, a government that
    would continue to exist today had it not been for the illicit
    acts of the United States.
        S. 310 does not recognize a Native Hawaiian government.
    Rather, it sets forth a process to allow Native Hawaiians to
    reorganize. Once that entity is reconstituted it will need to
    be certified by the Federal Government. Every step of the way,
    the Federal and State governments will be involved in the
    process.
        I want to say to the Vice Chairman, Senator Thomas, and my
    two colleagues from Hawaii, we are having a cloture vote at
    10:30 this morning on my amendment, the Dorgan amendment, and
    the one hour prior to the cloture vote is an hour devoted to
    debate on that amendment. So I regrettably, and it was not
    planned this way, but I have to be over to defend my amendment
    during this hour. So I am going to ask if Senator Akaka would
    chair the hearing. I apologize for having to go to the floor of
    the Senate, but that nonetheless is the procedure this morning
    for me.
        I want to thank Vice Chairman Thomas for being with us as
    well. I want to call on Vice Chairman Thomas for any opening
    comment that he will have, and then I will ask, as I depart,
    for Senator Akaka to assume the role of the Chair.
        Let me make one final point, if I might. This is not an
    issue without some controversy. I recognize that. It has been
    around a while. It has been debated. There is some controversy.
    But I do want to pay special attention to my two colleagues,
    Senator Akaka and Senator Inouye. They have worked long and
    hard on this issue. They feel passionately about it. They have
    worked very hard to address a lot of issues with a lot of
    different interests. I deeply admire what they have done. As a
    result of that, I have cosponsored the legislation today.
        I recognize that there remain some areas of dispute and
    controversy, but I just wanted to make special note of the
    extraordinary work done by my two colleagues in order to bring
    this bill to the Senate Committee on Indian Affairs.
        Senator Thomas, thank you for being here.

                    STATEMENT OF HON. CRAIG THOMAS,
                       U.S. SENATOR FROM WYOMING

        Senator Thomas. Thank you very much, Mr. Chairman. I hope
    you do well on the floor.
        I, too, want to recognize our two colleagues for all they
    have done. Versions of this bill have come before the Indian
    Affairs Committee in four previous Congresses, beginning in the
    106th Congress. I appreciate this is a matter of considerable
    importance to the Senators and many Native Hawaiians as well.
    However, I have been an opponent of the early versions of this
    bill, most recently in the 109th Congress. I voted against
    cloture of S. 147 and was prepared to vote against the bill on
    its merits if it had come to that.
        Clearly, there are strong feelings about this initiative,
    both for it and against it. There are those who support or
    oppose it on policy grounds, and those who support or oppose it
    on legal and constitutional grounds. Whether a particular group
    should be recognized as an Indian tribe by the Federal
    Government involves difficult questions of historic, political
    and general geographics facts, and it requires a detailed
    scholarly inquiry. I do not think that it is appropriate to
    circumvent that inquiry and have Congress simply deem a group
    to be a tribe. In fact, I wonder if it might be preferable for
    this decision to be made by the Department of the Interior,
    following the regulatory process that is used in recognizing
    Indian tribes.
        Nevertheless, I am looking forward to the witnesses today.
    I know how important this issue is, and I appreciate your being
    here and look forward to your remarks.
        Thank you, sir.

                  STATEMENT OF HON. DANIEL K. AKAKA,
                        U.S. SENATOR FROM HAWAII

        Senator Akaka. [Presiding.] I want to thank you very much,
    my good friend and colleague, Senator Thomas, for his
    statement.
        And now I would like to call on Senator Inouye. I am so
    accustomed to the seniority, but Senator Inouye just waved me
    on. So let me proceed with my statement.
        I want to thank Chairman Dorgan and Vice Chairman Thomas
    very, very much. I appreciate their having this hearing today.
    I also want to welcome all of our witnesses who are here to
    testify.
        In Hawaii, we are blessed to have a diverse population
    representing many cultures. However, we cannot neglect and must
    not forget the indigenous culture and people of Hawaii, the
    Native Hawaiians. For the last seven years, I, along with
    Hawaii's congressional delegation, have worked to enact the
    Native Hawaiian Government Reorganization Act. My bill
    authorizes a process for the reorganization of a Native
    Hawaiian governing entity for the purposes of a federally
    recognized government-to-government relationship.
        Why do we need to organize the entity? It is because the
    Native Hawaiian government was overthrown with the assistance
    of U.S. aid in 1893. As a result, Native Hawaiians were
    disenfranchised from their culture, land and way of life at the
    hands of foreigners committed exclusively to propagating
    Western values and conventions. The impacts of the overthrow
    continue as Native Hawaiians are at the lowest levels of
    achievement by all social and economic measures.
        Following the overthrow, a republic was formed. Any
    reformation of a native governing entity was discouraged.
    Despite this fact, Native Hawaiians have established distinct
    communities and retained their language, culture and
    traditions. They have done so in a way that also allows other
    culture to flourish in Hawaii.
        Since that time, Congress has explicitly recognized the
    existence of a special or trust relationship between the Native
    Hawaiian people and the United States. In 1921, the effort to
    rehabilitate them by returning Native Hawaiians to the land led
    to the enactment of the Hawaiian Homes Commission Act. The Act
    sets aside approximately 203,500 acres of public lands for
    Native Hawaiian homesteading. As a condition of statehood in
    1959, Congress required the State of Hawaii to adopt the HHCA
    and two, that public lands transferred to the State be held in
    trust for five purposes, including ``the betterment of the
    conditions of Native Hawaiians.''
        In 1993, Public Law 103-150, commonly known as the Apology
    Resolution, was enacted. The Resolution acknowledges the
    history that happened, including ``Congress apologizes to
    Native Hawaiians on behalf of the people of the United States
    for the overthrow of the Kingdom of Hawaii on January 17, 1893,
    with participation of agents and citizens of the United States,
    and the deprivation of rights of Native Hawaiians to self-
    determination.''
        Congress also committed itself to acknowledging the
    ramifications of the overthrow and supporting reconciliation
    efforts between Native Hawaiians and the United States. My bill
    is the next step in this reconciliation process.
        While Congress has traditionally treated Native Hawaiians
    in a manner parallel to American Indians and Alaska Natives,
    the Federal policy of self-governance and self-determination
    has not been formally extended to Native Hawaiians. Many checks
    and balances exist in this process, which complies with Federal
    law and maintains the flexibility for Native Hawaiians to
    determine the outcome of this process.
        Federal recognition of Native Hawaiians is supported by a
    majority of people in Hawaii, including the Governor of the
    State, the State legislature, the numerous Native and non-
    Native organizations. In Washington, D.C., S. 310 is a
    bipartisan bill, with the support of national organizations,
    including the American Bar Association, National Congress of
    American Indians, and Alaska Federation of Natives.
        I look forward to building upon the established record as
    we embark on the ninth hearing this Committee has held on the
    issue of Native Hawaiian governance.
        Senator Inouye?

                  STATEMENT OF HON. DANIEL K. INOUYE,
                        U.S. SENATOR FROM HAWAII

        Senator Inouye. I thank you, Mr. Chairman.
        I thank Chairman Dorgan and Vice Chairman Thomas for
    scheduling this very important hearing. Senator Akaka and I
    have worked tirelessly for the past seven years. We have had
    eight days of hearings during the seven year period, covering
    40 hours. This bill has been marked up five times, so it has a
    long history, and we have worked on it for a long time.
        But before I proceed, Mr. Chairman, I note that
    Congresswoman Mazie Hirono is here with us, and I thank you for
    your demonstration of support. This encourages us.
        This bill is important to all the citizens of the State.
    For those of who were born and raised in Hawaii, we have always
    understood that the indigenous people of Hawaii, Native
    Hawaiian people, have a status that is unique. This status is
    enshrined in our State Constitution. It is reflected in the
    laws of our State. It is found in over 100 Federal laws,
    including the Hawaiian Admissions Act, as noted by Senator
    Akaka.
        It is a status that reflects our deep gratitude to the
    Native people who first welcomed us on their shores and who
    gave us the opportunity to live in their traditional homelands.
        Mr. Chairman, in my nearly 30 years of service on this
    Committee, I have been fortunate to learn a bit about the
    history of this Country and its relations with indigenous
    native people who occupied and exercised sovereignty on this
    continent. As a Nation, we have changed course many times in
    the policies governing our dealing with the native people. We
    began with treaties with native peoples, solemnly signed by the
    President of the United States. And then, notwithstanding these
    treaties, we turned to war and in some cases massacred the very
    tribes that we had treaties with.
        Then we enacted laws recognizing native governments. Then
    we passed laws terminating our relationships with those
    governments. Then we had laws repudiating our termination
    policy and restored our relations with native governments.
        Finally, for the past 37 years, we adopted a policy of
    recognizing and supporting the rights of this Nation's first
    Americans to self-determination and self-governance. We have
    been firm in our resolve to uphold that policy. Native
    Hawaiians have had a political and legal relationship with the
    United States for the past 140 years, as shown through the
    treaties with the United States and the scores of Federal
    statutes. But like the native people whose federally recognized
    status was terminated, the government of Hawaii that
    represented the Native Hawaiian people was overthrown with the
    assistance of U.S. troops on January 17, 1893.
        Native Hawaiians seek full restoration of the government-
    to-government relationship they had with the United States. As
    one who has served the citizens of Hawaii for over 50 years, as
    both a member of Congress and in the territorial legislature, I
    believe that there is a broad-based support in our State for
    what the native people of Hawaii are seeking. The courts have
    concluded that termination can only be reversed by an act of
    Congress. In my view, I believe in the view of those I have
    place to represent. The time for reconciliation is long
    overdue, and the time for restoration is now.
        I thank you, Mr. Chairman.
        [The prepared statement of Senator Inouye follows:]

     Prepared Statement of Hon. Daniel K. Inouye, U.S. Senator from Hawaii
        I thank Chairman Dorgan and Vice Chairman Thomas for scheduling
    this important hearing today on a bill that Senator Akaka and I have
    worked tirelessly on for the past 7 years.
        This bill is important to all of the citizens of the State of
    Hawaii. For those of us who were born and raised in Hawaii, as I was,
    we have always understood that the indigenous people of Hawaii--the
    Native Hawaiian people--have a status that is unique in our State.
        This status is enshrined in our State Constitution, and it is
    reflected in the laws of our State. It is found in well over a hundred
    Federal statutes--including the Hawaii Admissions Act. It is a status
    that reflects our deep gratitude to the native people who first
    welcomed us to their shores and who gave us the opportunity to live in
    their traditional homelands.
        Mr. Chairman, in my nearly 30 years of service on this committee, I
    have been fortunate to learn a bit about the history of this country
    and its relations with the indigenous, native people, who occupied and
    exercised sovereignty on this continent.
        As a nation, we have changed course many times in the policies
    governing our dealings with the Native people. We began with treaties
    with the Native people, and then we turned to war. We enacted laws
    recognizing Native governments, and then we passed laws terminating our
    relationships with those governments. We repudiated our termination
    policy and restored our relationships with Native governments. Finally,
    for the last 37 years, we adopted a policy of recognizing and
    supporting the rights of this nation's First Americans to self-
    determination and self-governance. We have been firm in our resolve to
    uphold that policy.
        Native Hawaiians have had a political and legal relationship with
    the United States for the past 140 years--as shown through treaties
    with the United States and in scores of Federal statutes. But like the
    Native people whose Federally-recognized status was terminated, the
    government of Hawaii that represented the Native Hawaiian people was
    overthrown with the assistance of U.S. troops on January 17, 1893.
        Native Hawaiians seek the full restoration of the government-to-
    government relationship they had with the United States. As one who has
    served the citizens of the State of Hawaii for over 50 years, as both a
    member of Congress and the Territorial Legislature, I believe that
    there is broad-based support in our State for what the Native people of
    Hawaii are seeking. At this time, I would like to submit the following
    letter written by Linda Lingle, Governor of the State of Hawaii to
    Senator Lamar Alexander, which states that 84 percent of Hawaii adults
    are in favor of affording federal recognition to Native Hawaiians.
        The courts have concluded that termination can only be reversed by
    an act of Congress. In my view, and I believe in the view of those I
    have pledged to represent, the time for reconciliation is long
    overdue--and the time for restoration is now. The Time to enact S. 310
    is now.
        As you know, Mr. Chairman, in the 109th session of the Congress, we
    debated an earlier version of the bill that is before us today on the
    Senate floor. At that time, statements were made part of the
    Congressional Record that reflect a misunderstanding of the discussions
    that took place between the United States and the political leaders of
    what was to become the new State of Hawaii. Because I participated in
    those discussions, I thought that it might be helpful to the Committee
    and to our colleagues in the Senate to know what was contemplated by
    the parties to the discussion at the time of statehood.
        The historical record is clear. In an effort to return lands to the
    indigenous, native people of Hawaii, the Congress acted in 1920 to set
    aside land on each of the five principal islands, in what was then the
    Territory of Hawaii. This action was taken in response to well-
    documented evidence that Native Hawaiians had been displaced from their
    traditional homelands, moved into tenement dwellings, and suffered in
    large numbers from diseases that were rampant in the overcrowded
    tenement areas.
        This Federal law, the Hawaiian Homes Commission Act, set aside
    approximately 203,500 acres of land from the inventory of lands in
    Hawaii that had been ceded to the United States to be held in trust for
    Native Hawaiians. While the law did not authorize appropriations for
    the development of infrastructure that would enable the habitability of
    the lands, the Act contained an authorization for the leasing of the
    lands so that revenues derived from leases could be dedicated to the
    development of infrastructure. As we approached the time of statehood,
    I recall that one of the principal concerns was that statehood should
    not effect another displacement of Native Hawaiians from the lands that
    had been set aside under the Hawaiian Homes Commission Act.
        Until that time, the administration of the Act had been
    challenging. Here were lands that were located thousands of miles from
    the nation's capital, but were nonetheless lands that the United States
    held in trust. Transferring the lands to what would become the new
    State of Hawaii held the potential to facilitate the implementation of
    the Act and to increase the numbers of Native Hawaiians who could be
    relocated onto the homelands.
        As a condition of its admission into the Union, Hawaii accepted the
    terms the United States put forth--namely, that the homelands would be
    transferred to the new State, but that those lands would be held in
    trust for Native Hawaiians by the State. In addition, the United States
    sought, and those representing the new State agreed, to incorporate the
    provisions of the Hawaiian Homes Commission Act into the new State's
    Constitution.
        However, the United States did not cut all of its ties to the
    Native Hawaiian people or to the homelands. The U.S. retained the
    authority to bring an enforcement action should there be any breach of
    the homelands trust by the State of Hawaii, and further insisted that
    any material amendments to the Act adopted by the State legislature
    that would affect either the eligibility of those entitled to live on
    the homelands or the corpus of the trust--would have to be approved and
    ratified by the U.S. Congress.
        There was also the matter of the other lands in Hawaii that had
    been ceded to the United States. While there was general agreement that
    all of the lands that were not to be retained by the United States for
    military or other Federal purposes would be transferred to the new
    State, it was also understood that there would be revenues derived from
    the use of those ceded lands.
        Here again, there is clear evidence that the framers of the
    Statehood Act did not intend that Native Hawaiians would be subsumed
    into the larger body politic of the new State, but rather, that Native
    Hawaiians would retain their historically-distinct status.
        Accordingly, we are able to look to section 5(f) of Hawaii's
    Admissions Act, which provides that the lands transferred to the new
    State are to be held in a public trust by the State, and that the
    revenues derived from the ceded lands are to be used for five purposes,
    one of which is the betterment of the conditions of Native Hawaiians.
        The delegation of authority by the United States to the State of
    Hawaii to administer lands held in trust for Native Hawaiians and to
    use the revenues derived from lands ceded by the United States to the
    State of Hawaii for the betterment of the conditions of Native
    Hawaiians is unmistakably clear and explicit. It is contained in
    Federal law--the Hawaii Admission Act--and is reflected in provisions
    of the Constitution of the State of Hawaii as well as in Hawaii State
    implementing statutes.
        Finally, I believe it may be useful to address those provisions of
    S. 310 that grew out of negotiations that took place subsequent to this
    Committee's report of S. 147, the Native Hawaiian Government
    Reorganization Act, to the full Senate in the 109th session of the
    Congress. Those negotiations involved representatives of the White
    House, the Office of Management and Budget, the Department of Justice,
    the State of Hawaii, and the members of Hawaii's congressional
    delegation, and the provisions of the bill resulting from the
    negotiations were incorporated into S. 3064, which was essentially an
    amendment in the nature of a substitute to S. 147 that was introduced
    by Senator Akaka in 2006.
        On July 13, 2005, Assistant Attorney General William E. Moschella,
    signed a letter from the Department of Justice to Senator John McCain,
    who was at the time Chairman of the Senate Indian Affairs Committee.
    Mr. Moschella's letter sets forth four principal points of concern
    about the Native Hawaiian Government Reorganization Act of 2005--each
    of which was subsequently addressed in the negotiations I have
    referenced.
        Accordingly, there are provisions of S. 310 that address the
    Department's concerns about potential claims against the United States,
    the consultation process as it relates to the operation of U.S.
    military facilities in Hawaii or military readiness, the allocation and
    exercise of criminal jurisdiction among the three governments (the
    United States, the State of Hawaii, and the Native Hawaiian
    government), and the application of the Indian Gaming Regulatory Act.
    The Department's additional concern about the composition of the
    Commission is also addressed in the provisions of S. 310. As Mr.
    Moschella's letter indicates, the U.S. Supreme Court did not address
    Congress' constitutional authority to enact legislation for the benefit
    of Native Hawaiians in the Court's ruling in Rice v. Cayetano.
        The 160 Federal statutes that the Congress has enacted since 1910
    which are designed to address the conditions of Native Hawaiians were
    not at issue in the Rice case.
        As members of Congress who take an oath of office to uphold the
    U.S. Constitution, every legislative action that we take is informed by
    our understanding of the authority that is delegated to the legislative
    branch of government in the Constitution. History informs us that
    because the U.S. Supreme Court does not have occasion to rule on the
    constitutionality of every Federal statute, most of the time we must
    act on the advice of legal counsel and our best judgment. The experts
    in this field of law assure us--and the Supreme Court has so held--that
    the power that the Constitution delegates to the Congress to conduct
    relations with the indigenous, native people of America is plenary.
        Again, as one who has served in the U.S. Congress for the past 48
    years, I believe that it is wise and prudent to premise our actions on
    this constitutional foundation and historical experience rather than
    constrain our actions on speculation or conjecture.

        Senator Akaka. Thank you very much, Senator Inouye.
        Senator Murkowski?

                   STATEMENT OF HON. LISA MURKOWSKI,
                        U.S. SENATOR FROM ALASKA

        Senator Murkowski. Thank you, Mr. Chairman.
        I appreciated hearing the remarks of both of our
    distinguished leaders from Hawaii.
        I want to welcome those from the State of Hawaii that have
    traveled to be with us today. I know that we often have
    visitors from the Office of Hawaiian Affairs travel to the
    State of Alaska, working with and visiting with our friends
    over at the Alaska Federation of Natives. Sometimes you have
    come when it is cold. Sometimes we go and visit you when it is
    warm, and I am sure who gets the better part of the deal, but
    we do enjoy the relationship that we have with one another.
        In June of 2006, I went to the Senate floor to speak in
    support of Senator Akaka's Native Hawaiian recognition
    legislation. Mr. Chairman, I would ask that my floor statement
    be included in the record of today's hearing.
        Senator Akaka. Without objection. *
    ---------------------------------------------------------------------------
        * The information referred to is printed in the Appendix.
    ---------------------------------------------------------------------------
        Senator Murkowski. The question at that time was whether or
    not the Senate was going to invoke cloture to end the
    filibuster that prevented the consideration of the Akaka bill
    on its merits. Ultimately, there were 56 Senators, both
    Republicans and Democrats, who voted to debate the bill, four
    short of the number that we needed to break that filibuster.
    Many of the views expressed in the testimony to be offered by
    the Justice Department witnesses, some of those expressed in
    Mr. Burgess's prepared testimony, were explore in the debate
    that preceded that vote. But the 56 bipartisan votes cast in
    favor of the Akaka bill suggest that it stands very much in the
    mainstream of political and constitutional thought.
        Attorney General Bennett and Mr. Dinh were pivotal in
    helping many of our colleagues evaluate the arguments that were
    advanced by those who opposed Senator Akaka's legislation. I
    welcome them to the Committee this morning and look forward to
    their testimony as well.
        I would also note, and you have mentioned, Senator Akaka,
    that this legislation enjoys the support of your Governor,
    Governor Lingle, and also the support of the major newspapers
    in the State of Hawaii, the National Congress of American
    Indians, and the Alaska Federation of Natives.
        While much is made of the U.S. Civil Rights Commission's
    views on the Akaka bill, it bears noting that the only American
    Indian on the Commission dissented from the majority's
    conclusion.
        I want to take just a moment here this morning to kind of
    break practice in order to comment on the prepared statement
    submitted by the Department of Justice. I have to say that the
    language and the tone in the prepared statement do not leave a
    favorable impression on this Senator. I am referring to
    language like favored treatment, class of favored persons,
    secession, balkanization, racially isolated government,
    preferential treatment, differential treatment, separatist
    government, and corrosive effect.
        The statement uses I believe harsh and divisive words to
    draw many conclusions about the distinctions between Native
    Hawaiians on the one hand, and American Indians and Alaska
    Natives on the other. Yet nowhere in the statement do I find
    any historical or anthropological references to support these
    conclusions. The Apology Resolution is never once discussed in
    the statement.
        I am left to wonder whether the distinctions between Native
    Hawaiians and American Indians are truly distinctions without a
    difference.
        I feel compelled to call the Committee's attention to the
    suggestion on page four of the prepared statement that this
    legislation grants, ``a broad group of citizens defined by race
    and ancestry the right to declare their independence and secede
    from the United States.'' I don't see anything on the face of
    S. 310 that gives anyone the right to declare independence and
    secede from the United States.
        I question the credibility of the statement that the
    legislation grants, ``sweeping powers to the proposed Native
    Hawaiian organizations described in the bill.'' What it does do
    is give the Native Hawaiian governing entity a seat at the
    negotiating table. The State of Hawaii and the Federal
    Government hold the other seats. As I said on the floor last
    year, this Senator is not about to presume the outcome of these
    negotiations.
        Now, of all the troublesome language in the prepared
    statement, I find the passages that suggest that ``Indian
    tribes enjoy favored treatment and that the Akaka bill would
    create a class of favored persons afforded different rights and
    privileges from those afforded to his or her neighbors.'' I
    find this very troubling.
        The suggestion is that if Native Hawaiians are regarded as
    American Indians, they become favored persons. I believe that
    these are words that provoke resentment. They are inflammatory
    and I fully believe that they are uncalled for. Language like
    this is used frequently by those who would have the United
    States end its financial support for Indian health and Indian
    housing programs. I don't use this language and I don't think
    our President has ever used it either to describe our Nation's
    relationship with native people. If you doubt this, I would
    suggest that you look at the President's Native American
    Heritage Month proclamations on the White House web site.
        Mr. Chairman, I spend a lot of time with native people who
    live in rural Alaska who subsist off the land and the living
    resources as much as their ancestors did. I can tell you that
    nobody I know feels privileged to live in third world
    conditions without indoor plumbing or substandard housing as
    the price they pay for remaining in their traditional
    communities.
        Federal Indian programs compensate our native peoples for
    the loss of their land, and I think the record will bear out
    that Native Hawaiian people are similarly situated to Alaska
    Natives and American Indians in this regard. Reasonable people
    can civilly debate the question of whether recognition of
    Native Hawaiians falls within the ambit of Congress's broad
    powers under the Indian Commerce Clause. Citing two law review
    articles, one pro and one con, the majority opinion in Rice v.
    Cayetano noted, ``it is a matter of some dispute whether
    Congress may treat the Native Hawaiians as it does the Indian
    tribes.'' The majority then stated emphatically, ``We can stay
    far off that difficult terrain, however.''
        But however difficult the terrain, I would suggest that the
    time has come for Congress to address the question. Congress
    has recognized the Native Hawaiians perhaps 100 times in
    designating eligibility for the same types of programs and
    services afforded to American Indians because of their status
    as Indians. I am speaking of the health programs and the
    housing programs. I fear that if Congress remains silent on
    whether Native Hawaiians are to be treated as American Indians,
    the legal challenges to these programs will continue and the
    intent of Congress, as reflected in those laws, may be
    frustrated.
        I thank the Chairman for the time this morning and the
    opportunity to make these comments, and look forward to the
    testimony from the witnesses this morning.
        Senator Akaka. Thank you very much, Senator Murkowski.
        I want to welcome the first panel this morning. I would
    like to introduce them. Again, I want to reiterate what the
    Chairman mentioned, that we may be having at 10:30 a.m. a vote
    on the floor of the House. As a result, we will have the first
    panel testify first.
        Mr. Gregory Katsas is Principal Deputy Associate Attorney
    General, United States Department of Justice. The Department of
    Justice was invited to testify at the hearing because the
    department had issued a letter in 2005 opposing several aspects
    of reorganizing the Native Hawaiian government. Mr. Katsas will
    testify on the department's current views on S. 310.
        Mr. Mark Bennett is Attorney General of the State of
    Hawaii, who is accompanied by Micah Kane, Chairman of the
    Hawaiian Homes Commission. Mr. Bennett will be testifying as a
    representative for the Honorable Linda Lingle, Governor of the
    State of Hawaii. He will testify about the State of Hawaii's
    support for S. 310, Congress's authority to develop a political
    relationship with a Native Hawaiian government and the
    constitutionality of S. 310.
        Ms. Haunani Apoliona is Chairperson of the Board of
    Trustees of the Office of Hawaiian Affairs, who is accompanied
    by William Meheula, Legal Counsel. The Office of Hawaiian
    Affairs is an office of the State of Hawaii that was
    established in 1978 by the Hawaii State Constitution. The
    mission of the office is to protect and assist Native Hawaiian
    people. Chairperson Apoliona will testify about the history of
    the Native Hawaiian government, the history of the Office of
    Hawaiian Affairs, and the need to further the self-
    determination and self-governance of the Native Hawaiian
    people.
        I would like the witnesses to know that your full
    statements will be made a part of the record.
        Senator Thomas. Mr. Chairman, Dr. Coburn may not be here.
    He would like to have his statement and questions be made part
    of the record.
        Senator Akaka. Thank you very much. That will be included
    in the record.
        Mr. Katsas, you may now begin with your opening statement.

      STATEMENT OF GREGORY G. KATSAS, PRINCIPAL DEPUTY ASSOCIATE
                ATTORNEY GENERAL, DEPARTMENT OF JUSTICE

        Mr. Katsas. Thank you, Senator Akaka and Senator Thomas,
    for inviting me here to testify on the proposed S. 310. I know
    that this bill has a long history and is very personal to many.
    The Department appreciates that many of the concerns identified
    in previous versions of the bill were resolved after lengthy
    meetings between your staff and ours. However, other concerns
    still remain.
        The bill would create a new government based on suspect
    lines of race and ethnicity. The Administration strongly
    opposes this well-intentioned, but misguided attempt to divide
    sovereign power along such lines. The President has said that
    we must honor the great American tradition of the melting pot,
    which has made us one Nation out of many peoples. That
    sentiment is further reflected in our national motto, e
    pluribus unum, out of many, one.
        This bill would undercut that principle. The bill broadly
    defines a separate class of Native Hawaiians to include all
    living descendants of the original Polynesian inhabitants of
    what is now modern-day Hawaii. Members of this class need not
    have any geographic, political or cultural connection to
    Hawaii, much less to some discrete Native Hawaiian community.
    In fact, the class encompasses about 400,000 individuals,
    including 160,000 who do not live in Hawaii, but are scattered
    throughout each of the 49 other States in the Union.
        Members of the class are now diverse--racially, ethnically,
    and culturally. They are said to be the subjects of a
    government that has not existed since the late-1800s. They are
    afforded the privilege of forming a separate government, not
    because of actual membership in a discrete native community,
    but because they have at least trace elements of Polynesian
    blood.
        The bill would grant broad governmental powers to this
    racially-defined group. In essence, Native Hawaiians would be
    authorized to conduct a constitutional convention. Through
    referenda, they would decide who may become a citizen in the
    new government, what powers the government may exercise, and
    what civil rights it must protect. They would also elect
    officers in the new government.
        Once constituted, the new government would be authorized to
    negotiate with the United States over such matters as the
    transfer of land and natural resources, the exercise of civil
    and criminal jurisdiction, and the redress of claims against
    the United States. According to some supporters of the bill,
    the new government would even be able, on behalf of its
    constituents, to seek free association or total independence
    from the United States.
        This drive toward separatism is troubling. It is wrong on
    its own terms, and it seeks to change settled understandings
    underlying the admission of Hawaii into the Union. In 1950,
    citizens of Hawaii voted overwhelmingly for statehood. Native
    Hawaiians supported statehood by a margin of two-to-one. Over
    the next decade, they and others advocated for statehood based
    on the premise that Hawaii had become, in the words of one
    member of Congress at the time, ``a melting pot from which has
    been produced a common nationality, a common patriotism, a
    common faith in freedom and in the institutions of America.''
        After a decade-long campaign, Congress accepted that view,
    admitted Hawaii into the Union and, in contrast to what it had
    done in admitting other States, set aside no land for
    reservations.
        The bill also raises troubling constitutional questions.
    The Supreme Court has made clear that classifications based on
    race and ethnicity receive the highest level of judicial
    scrutiny. To diminish such scrutiny, supporters of the bill
    contend that Congress may permissibly recognize Native
    Hawaiians as an Indian tribe. Supreme Court precedent makes
    clear that the power to recognize Indian tribes, although
    broad, is not unlimited, and that courts will strike down any
    inappropriate extension of that power.
        In Rice v. Cayetano, the Supreme Court identified the
    specific question of whether Congress may treat Native
    Hawaiians as an Indian tribe as one of considerable moment and
    difficulty. Two concurring Justices went farther and concluded
    that a State cannot permissibly treat as an Indian tribe the
    class at issue here, of Native Hawaiians broadly defined to
    include all descendants of Hawaii's original settlers.
        The question whether Congress may define Native Hawaiians
    as an Indian tribe entitled to their own separate government
    raises serious constitutional concerns. But whatever the
    constitutionality of S. 310, the Administration as a policy
    matter strongly opposes any provision that would divide
    American sovereignty along lines of race and ethnicity.
        Thank you for your attention. I would be pleased to address
    any questions.
        [The prepared statement of Mr. Katsas follows:]

      Prepared Statement of Gregory G. Katsas, Principal Deputy Associate
                    Attorney General, Department of Justice
        Thank you, Mr. Chairman and Mr. Vice Chairman, for inviting me here
    today to comment on S. 310, the proposed Native Hawaiian Government
    Reorganization Act of 2007. I would like to begin by acknowledging that
    many native Hawaiians, like many Americans of various other
    backgrounds, place great importance on maintaining their ancestral
    culture. The Administration strongly supports that laudable goal.
    However, this bill raises the question whether Congress can and should
    pursue that goal by providing for a separate government to be organized
    by, and presumably run for, only individuals of a specified race and
    ancestry. The Administration strongly opposes that proposal because we
    think it wrong to balkanize the governing institutions of this country
    along racial and ancestral lines, and because doing so would give rise
    to constitutional questions recently described by the Supreme Court as
    ``difficult'' and ``considerable.''
    I. Policy Concerns
        In July 2005, the Department of Justice conveyed to this Committee
    several concerns with S. 147, a prior version of what is now S. 310. We
    recognize that S. 310, as revised, addresses many of our concerns.
    Specifically, we noted that the prior bill might have created sweeping
    new trust or mismanagement claims against the United States, interfered
    with important military operations in Hawaii, caused confusion from
    overlapping and possibly conflicting jurisdiction, and effectively
    overridden a state-law prohibition on gaming. The current bill
    addresses each of these concerns, and we appreciate the Committee's
    efforts in this regard. Nonetheless, S. 310 continues to present the
    broader policy and constitutional concerns identified in our letters of
    June 13, 2005, and June 7, 2006. I will address the constitutional
    concerns below, and the policy concerns here.
        After its hearing on the prior S. 147, the United States Commission
    on Civil Rights concluded that the bill, if enacted, ``would
    discriminate on the basis of race or national origin and further
    subdivide the American people into discrete subgroups accorded varying
    degrees of privilege.'' The Native Hawaiian Government Reorganization
    Act of 2005, A Briefing Before the United States Commission on Civil
    Rights, Briefing Report 15. The government-sponsored division of
    Americans into such ``discrete subgroups'' is contrary to the goals of
    this Administration and, indeed, contrary to the very principle
    reflected in our national motto E Pluribus Unum. As President Bush has
    stated, we must ``honor the great American tradition of the melting
    pot, which has made us one nation out of many peoples.'' The White
    House, President George W. Bush, President Bush Addresses the Nation on
    Immigration Reform, May 15, 2006, http://www.whitehouse.gov/news/
    releases/2006/05/20060515-8.html. By dividing government power along
    racial and ancestral lines, S. 310 would represent a significant step
    backwards in American history and would create far greater problems
    than those it might purport to solve. For these reasons, the
    Administration strongly opposes passage of S. 310.
        Let me elaborate upon some of our policy concerns. First, in
    attempting to treat native Hawaiians as if they constituted an Indian
    tribe, the bill defines ``Native Hawaiian,'' along explicitly racial
    and ancestral lines, to encompass a vast group of some 400,000
    individuals scattered throughout the United States. Moreover, the bill
    does so regardless of whether such individuals have any connection at
    all to Hawaii, to other Hawaiians, to native Hawaiian culture, or to
    any territory (Hawaiian or otherwise) remotely resembling an Indian
    reservation. Such an expansive definition is unlike any other
    previously used to describe a federally-recognized Indian tribe. In
    other instances, Congress has either allowed tribes to define their own
    membership or, alternatively, has itself specified a limited initial
    definition, thus ensuring that members maintain a strong connection to
    the tribal entity. This bill requires virtually no such connection
    between putative tribal members and any present or past tribal entity.
    Moreover, in determining who may participate in establishing the new
    government proposed by S. 310, the Federal Government would itself be
    discriminating based on race and ancestry, rather than based on any
    discernible nexus of individuals to a tribe-like entity. Such
    discrimination, in determining who may participate in the public
    function of creating a new government, should be highly disfavored.
        Second, S. 310 would grant sweeping powers to the proposed Native
    Hawaiian governing entity, and to the proposed Native Hawaiian Council
    charged with creating that entity. Section 7(c)(2)(B)(iii) of the bill
    provides that the Council may conduct a referendum regarding (1) ``the
    proposed criteria for citizenship of the Native Hawaiian governing
    entity,'' (2) ``the proposed powers and authorities to be exercised by
    the native Hawaiian governing entity, as well as the proposed
    privileges and immunities of the Native American governing entity,''
    (3) the ``proposed civil rights and protection of the rights of the
    citizens of the Native Hawaiian governing entity and all persons
    affected by the exercise of governmental powers and authorities of the
    Native Hawaiian governing entity,'' and (4) ``other issues determined
    appropriate by the Council.'' In contrast, Indian tribes, by terms of
    the Indian Civil Rights Act, must generally respect the civil rights of
    their members as specified by Congress. See 25 U.S.C. Sec. Sec. 1301-
    03. Even worse, the state Office of Hawaiian Affairs contends that this
    scheme would give native Hawaiians, as subjects of the new governing
    entity, ``their right to self-determination by selecting another form
    of government including free association or total independence.'' See
    State of Hawaii's Office of Hawaiian Affairs, Questions and Answers,
    http://www.nativehawaiians.com/questions/SlideQuestions.html. For good
    reason, no other legislation has ever granted any state or Indian
    tribe--much less any broad group of citizens defined by race and
    ancestry--the right to declare their independence and secede from the
    United States. Indeed, the Nation endured a Civil War to prevent such
    secession.
        The breadth of S. 310 is particularly problematic given the
    distinctive history of Hawaii itself. The Ninth Circuit has explained
    that ``Congress has evidenced an intent to treat Hawaiian natives
    differently from other indigenous groups,'' because ``the history of
    the indigenous Hawaiians, who were once subject to a government that
    was treated as a co-equal sovereign alongside the United States until
    the governance over internal affairs was entirely assumed by the United
    States, is fundamentally different from that of indigenous groups and
    federally-recognized Indian Tribes in the continental United States.''
    Kahawaiolaa v. Norton, 386 F.3d 1271, 1281-82 (9th Cir. 2004).
        Moreover, S. 310 effectively seeks to undo the political bargain
    through which Hawaii secured its admission into the Union in 1959. On
    November 7, 1950, all citizens of the Hawaiian Territory--including
    native Hawaiians--voted to seek admission to the United States. See,
    e.g., Pub. L. No. 86-3, 73 Stat. 4. By a decisive 2-1 margin, native
    Hawaiians themselves voted for statehood, thus voluntarily and
    democratically relinquishing any residual sovereignty to the United
    States. See Slade Gorton & Hank Brown, Wall Street J., A-16 (Aug. 16,
    2005); S. 147/H.R. 309: Process for Federal Recognition of a Native
    Hawaiian Governmental Entity, CRS Report for Congress, at CRS-25 n.111
    (Sept. 27, 2005). And when Hawaii became a state in 1959, there was a
    broad nationwide consensus that native Hawaiians would not be treated
    as a separate racial group or transformed into an Indian tribe. Indeed,
    far from creating any guardian-ward relationship between the Federal
    Government and native Hawaiians, the 1959 Admission Act eliminated
    federal ownership over lands subject to the Hawaii Homes Commission Act
    of 1920, and it ceded other lands to Hawaii for the benefit of all of
    its citizens. See Pub. L. No. 86-3, Sec. 5, 73 Stat. 4. Thus, the push
    to establish a native Hawaiian tribe as a distinct political entity is
    of recent historical vintage. There was no such effort even at the time
    of annexation in 1898, much less at the time of statehood in 1959.
        To the contrary, during the extensive statehood debates of the
    1950s, advocates repeatedly emphasized that the Hawaiian Territory was
    a ``melting pot'' without significant racial divisiveness. For example,
    Senator Herbert Lehman (D-NY) noted that ``Hawaii is America in a
    microcosm--a melting pot of many racial and national origins, from
    which has been produced a common nationality, a common patriotism, a
    common faith in freedom and in the institutions of America.''
    Congressional Record at 4325 (Apr. 1, 1954). Senator Wallace Bennett
    (R-UT) recognized that, ``[w]hile it was originally inhabited by
    Polynesians, and its present population contains substantial numbers of
    citizens of oriental ancestry, the economy of the islands began 100
    years ago to develop in the American pattern, and the government of the
    islands took on an actual American form 50 years ago. Therefore, today
    Hawaii is literally an American outpost in the Pacific, completely
    reflecting the American scene, with its religious variations, its
    cultural, business, and agricultural customs, and its politics.''
    Congressional Record at 2983 (Mar. 10, 1954). And Senator Clair Engle
    (D-CA) stated that, ``[t]here is no mistaking the American culture and
    philosophy that dominates the lives of Hawaii's polyglot mixture.''
    Testimony, Subcommittee on Territories and Insular Affairs of the
    Senate Committee on the Interior and Insular Affairs (Feb. 25, 1959).
        These statements confirm that Hawaiians sought and obtained
    statehood as a single people determined to become citizens, not of any
    racially isolated government for ``Native Hawaiians,'' but of the
    United States. S. 310 inappropriately seeks to undo the specific
    political arrangements secured with respect to statehood--to say
    nothing of the broader national ideal that, by virtue of the American
    melting pot, the United States should become one Nation from many, not
    many nations from one.
        Third, for many of the reasons already discussed, S. 310 would
    encourage other indigenous groups to seek favorable treatment by
    attempting to reconstitute themselves as Indian tribes--and thereby to
    segregate themselves, at least in part, from the United States and its
    government. Under the logic of this bill, favored treatment as an
    ``Indian tribe'' would become potentially available to groups that,
    although defined by race and ancient ancestry, might today consist of
    racially and culturally diverse persons with no single distinct
    community, no distinct territory under control of that group, and no
    distinct leadership or government--a combination of features that sets
    native Hawaiians apart from traditional Indian tribes and native
    Alaskan groups. This new template could potentially be used by several
    other indigenous groups living in the United States, such as the native
    Tejano community in Texas, the native Californio community of
    California, or the Acadians of Louisiana--all of which could argue that
    they are entitled to preferential treatment and even a separatist
    government, no matter how integrated they have become into the American
    mainstream. See Amicus curiae brief, Campaign for a Color-Blind
    America, Americans Against Discrimination and Preferences, and the
    United States Justice Foundation, filed in Rice v. Cayetano, No. 98-
    818, at 19-25 (available at 1999 WL 374577). Indeed, one such Mexican-
    American organization, the Movimiento Estudiantil Chicano de Aztlan
    (MEChA), even seeks to reclaim Aztlan land from nine western states.
    See Statement of Bruce Fein on the Constitutionality of Creating a
    Race-Based Native Hawaiian Government (H.R. 309) Before the House
    Judiciary Subcommittee on the Constitution (July 19, 2005). Whatever
    might be said about past injustices, generations of Americans have
    fought and died to achieve a single, indivisible country that respects
    the freedom, equality, and heritage of all of its citizens. Congress
    should avoid a path that will lead to its balkanization.
        Finally, S. 310 would create a race-based government offensive to
    our Nation's commitment to equal justice and the elimination of racial
    distinctions in the law. Section 3(10) of the bill defines the term
    ``Native Hawaiian'' as ``the indigenous, native people of Hawaii'' who
    are the ``direct lineal descendant[s] of the aboriginal, indigenous,
    native people who . . . resided in the islands that now comprise the
    State of Hawaii on or before January 1, 1893.'' That definition
    incorporates elements of two highly odious classifications--race (by
    reference to the ``indigenous'' Polynesian inhabitants of what is now
    Hawaii) and ancestry (by reference to the ``lineal descendant[s]'' of
    such individuals)--without any redeeming connection to any present or
    past political entity that even remotely resembles an Indian tribe. In
    short, the bill classifies people not based on a political relationship
    like citizenship in a foreign country, or membership in a quasi-
    sovereign Indian tribe, but rather based purely on race and ancestry.
        The corrosive effect of S. 310 is particularly acute given the
    geographic dispersion of its favored class of ``Native Hawaiians.'' As
    noted above, such individuals need not have any political, geographic,
    or cultural connection to Hawaii at all--and in fact live in each of
    the 50 states of the Union. Under this bill, throughout the United
    States, each of those favored persons would be afforded different
    rights and privileges from those afforded to his or her neighbors,
    based solely on race and ancestry classifications. Such differential
    treatment can be expected to encourage significant litigation and, much
    worse, to tear at the very fabric that makes us one Nation.
    II. Constitutional Concerns
        Beyond these fundamental policy concerns, we note that S. 310
    directly and unavoidably engages constitutional questions that the
    Supreme Court has described as being of ``considerable moment and
    difficulty.''
        Unless S. 310 can be justified as an exercise of Congress's unique
    constitutional power with respect to Indian tribes, its creation of a
    separate governing body for native Hawaiians would be subject to (and
    would almost surely fail) strict scrutiny under the equal protection
    component of the Fifth Amendment, because it singles persons out for
    distinct treatment based on their ancestry and race. See Rice v.
    Cayetano, 528 U.S. 495, 512-20 (2000). The Supreme Court has already
    held that separate legal classifications for native Hawaiians can run
    afoul of constitutional constraints. In Rice, the Court considered a
    Hawaii provision that limited the right to vote to trustees of the
    state Office of Hawaiian Affairs (OHA) to descendents of people who
    inhabited the Hawaiian Islands in 1778. Id. at 499. The Court held that
    this provision was ``a clear violation of the Fifteenth Amendment,''
    which prohibits the federal and state governments from denying the
    right to vote on account of race. Id. In reaching this conclusion, the
    Court rejected Hawaii's argument that the restriction was not a suspect
    classification subject to strict scrutiny, explaining that ``[a]ncestry
    can be a proxy for race [and] is that proxy here.'' Id. at 514.
        In further seeking to avoid strict scrutiny, Hawaii sought to rely
    on a prior Supreme Court decision that permitted certain tribal
    classifications in federal law. In Morton v. Mancari, 417 U.S. 535,
    553-55 (1974), the Court rejected an equal protection challenge to an
    employment preference in the Bureau of Indian Affairs for members of
    federally-recognized Indian tribes. The Court concluded that, in light
    of ``the unique legal status of Indian tribes under federal law,'' such
    a provision would be sustained if it was ``reasonably related to
    fulfillment of Congress's unique obligation to the Indians.'' Id. at
    551, 555. The Court stressed that the preference at issue was ``not
    directed towards a `racial' group consisting of `Indians,''' but rather
    ``applie[d] only to members of `federally recognized' tribes,'' and was
    therefore ``political rather than racial in nature.'' Id. at 554, n.24.
    Congress's power with respect to groups appropriately regarded as
    Indian tribes includes the establishment of a mechanism for the tribe
    to assume a greater degree of self-government, as Congress did when it
    enacted the Indian Reorganization Act of 1934. See 25 U.S.C. Sec. 461
    et seq. The question concerning the constitutionality of S. 310 thus
    becomes whether Congress could permissibly recognize native Hawaiians
    as one of ``the Indian Tribes'' referred to in the Constitution.
        Relying on Mancari, Hawaii argued in Rice that, because native
    Hawaiians constituted the legal equivalent of an Indian tribe, the
    voting restriction at issue should be subjected only to rationalbasis
    review as a ``political'' classification. In framing that argument, the
    Court described as ``a matter of some dispute''--and a question ``of
    considerable moment and difficulty''--``whether Congress may treat the
    native Hawaiians as it does the Indian tribes.'' Id. at 519. The Court
    decided to ``stay far off that difficult terrain.'' Id. at 519.
    Instead, it concluded that Mancari represents a ``limited exception''
    to strict scrutiny of classifications based in part on race or
    ancestry, because the hiring preferences in Mancari involved the
    ``political'' status of recognized Indian Tribes and the ``sui
    generis'' nature of the BIA. Id. at 520. For these reasons, the Court
    explained that ``sustain[ing] Hawaii's [voting] restriction under
    Mancari'' would ``require[] [the Court] to accept some beginning
    premises not yet established in our case law.'' Id. at 518.
        Ultimately, the majority in Rice concluded that, ``even if we were
    to take the substantial step of finding authority in Congress,
    delegated to the State, to treat Hawaiians or native Hawaiians as
    Tribes, Congress may not authorize a State to create a voting scheme of
    this sort.'' Id. at 519. In so doing, the Court stressed: ``To extend
    Mancari to this context would be to permit a State, by racial
    classification, to fence out whole classes of its citizens from
    decisionmaking in critical state affairs.'' Id. at 522. The Court
    likewise emphatically rejected Hawaii's contention that the franchise
    could be restricted to native Hawaiians on the theory that the state
    OHA addressed only the interests of native Hawaiians. In response, the
    Court concluded that Hawaii's position ``rests, in the end, on the
    demeaning premise that citizens of a particular race are somehow more
    qualified than others to vote on certain matters. That reasoning
    attacks the central meaning of the Fifteenth Amendment.'' Id. at 523.
        Justice Breyer, joined by Justice Souter, concurred in this result,
    but would have rejected Hawaii's argument in favor of the voting
    restriction at issue on the grounds that: ``(1) there is no ``trust''
    for native Hawaiians, and (2) OHA's electorate, as defined in the
    statute, does not sufficiently resemble an Indian tribe.'' Rice, 528
    U.S. at 525 (Breyer, J., concurring). On the latter point, Justice
    Breyer opined that, by including ``individuals with less than 1/500th
    native Hawaiian blood,'' the State's definition of the restricted
    electorate was ``not like any actual membership classification created
    by any actual tribe'' and went ``well beyond any reasonable limit''
    that could be imposed to define tribal membership. Id. at 526-27.
        The present bill, which purports to recognize a certain group of
    native Hawaiians as the equivalent of a federally-recognized Indian
    tribe, directly implicates the ``difficult'' constitutional question
    that the Supreme Court identified in Rice--whether Congress may
    constitutionally recognize native Hawaiians as an Indian tribe, thus
    rendering strict scrutiny inapplicable to preferences benefiting that
    racial and ancestral group. The bill also raises the further
    constitutional question addressed in Justice Breyer's concurring
    opinion--whether Congress may create a sweeping definition of
    membership depending only on lineal descent over the course of
    centuries.
        The Supreme Court has long recognized the unique legal status of
    Indian tribes under federal law and the ``special relationship''
    between the Federal Government and the Indian tribes. Mancari, 417 U.S.
    at 551-52. The primary source of Congressional authority to recognize
    Indian tribes is the Indian Commerce Clause of the Constitution, which
    states that ``Congress shall have the Power . . . To regulate Commerce
    with . . . the Indian Tribes,'' just as it has power to regulate
    commerce among the States and with foreign nations. See, e.g.,
    McClanahan v. State Tax Comm'n, 411 U.S. 164, 172, n.7 (1973.) The
    Court also has identified the Constitution's Treaty Clause, which
    authorizes the President, with the consent of the Senate, to enter into
    treaties, as a source of federal authority to recognize and deal with
    Tribes. See Id. The Federal Government's authority in this area is thus
    grounded in two constitutional provisions that recognize ``the Indian
    Tribes'' as political entities capable of engaging in commerce and
    making treaties. Indeed, the Court has explained that federally-
    recognized Indian tribes are political entities that retain some of
    their original sovereignty over their internal affairs. United States
    v. Wheeler, 435 U.S. 313, 322 (1978) (``The powers of Indian tribes
    are, in general, `inherent powers of a limited sovereignty which has
    never been extinguished.' '') (citation omitted).
        Although the Supreme Court has consistently acknowledged Congress'
    broad power to determine when and how to recognize and deal with Indian
    tribes, it has also observed that a predicate for the exercise of this
    power is the existence of a ``distinctly Indian communit[y].'' United
    States v. Sandoval, 231 U.S. 28, 45-46 (1913). Moreover, the Court has
    cautioned that Congress may not ``bring a community or body of people
    within the range of this power by arbitrarily calling them an Indian
    Tribe,'' Id. at 46, and that the courts may strike down ``any heedless
    extension of that label'' as a ``manifestly unauthorized exercise of
    that power,'' Baker v. Carr, 369 U.S. 186, 215-17 (1962).
        The Supreme Court has looked to various factors in determining what
    constitutes an Indian Tribe within Congress's power to recognize.
    Compare Worcester v. Georgia, 31 U.S. 515, 557-59 (1832) (describing
    the ``Indian nations'' as distinct and self-governing political
    communities, ```a people distinct from others'''), with Montoya v.
    United States, 180 U.S. 261, 266 (1901) (describing a ``Tribe'' as ``a
    body of Indians of the same or similar race, united in a community
    under one leadership or government, and inhabiting a particular though
    sometimes ill-defined territory''). The decision in Rice v. Cayetano,
    moreover, makes it uncertain how the Supreme Court would analyze the
    particular context of Native Hawaiians. On such uncertain legal
    terrain, it is the Administration's position that it is ill-advised to
    proceed with this legislation--particularly where, as here, there are
    strong policy reasons for not doing so.
        Given the substantial historical, structural and cultural
    differences between native Hawaiians as a group and recognized federal
    Indian tribes, the Administration believes that tribal recognition is
    inappropriate and unwise for native Hawaiians. We are strongly opposed
    to a bill that would formally divide governmental power along lines of
    race and ethnicity.

        Senator Akaka. Thank you very much, Mr. Katsas.
        Now, we will hear from Attorney General Mark Bennett.

       STATEMENT OF MARK J. BENNETT, ATTORNEY GENERAL, STATE OF
                  HAWAII; ACCOMPANIED BY MICAH KANE,
                  CHAIRMAN, HAWAIIAN HOMES COMMISSION

        Mr. Bennett. Thank you, Mr. Akaka, Senator Thomas, Senator
    Inouye, Senator Murkowski. Thank you very much for inviting me
    here to express my and Governor Linda Lingle's strong support
    for S. 310.
        We believe that this bill is fair, equitable, just,
    constitutional and, with respect, long overdue. This bill
    enjoys strong bipartisan support in the State of Hawaii,
    including from the Governor, the State Legislature, our elected
    Mayors, and County Councils.
        I start my analysis of this bill as Hawaii's chief legal
    officer with the organic document admitting Hawaii to the
    Union, the Admissions Act, which contains within it
    specifically identified fiscal and trust obligations to Native
    Hawaiians imposed upon the State of Hawaii by this very
    Congress.
        Congress could not, would not and did not condition
    Hawaii's entry into the Union upon Hawaii's perpetuating
    unceasing violations of the 14th Amendment. The very concept is
    anathema to Hawaii's admission to the Union. Nor has the
    Congress acted unconstitutionally for almost a century in
    passing more than 100 acts for the benefit of Native Hawaiians.
        The legal premise underlying the Department of Justice's
    testimony casts doubt on the constitutionality of all of these
    acts, all of which have been defended when challenged by the
    Department of Justice. Never in the more than two centuries of
    this republic has the Supreme Court of the United States struck
    down the recognition of an aboriginal people by the Congress
    pursuant to the Congress's authority under the Indian Commerce
    Clause of the Constitution.
        The Supreme Court has stated that in affording recognition,
    the Congress must act rationally. Indeed, given the recognition
    that the Congress has afforded all of America's other native
    peoples; given that the framers of the Constitution itself
    would have described the aboriginal inhabitants of the Hawaiian
    archipelago as Indians; given that the very crew members of
    Captain Cook who made the first Western contact with Hawaii
    described the inhabitants of the Hawaiian archipelago as
    Indians, a strong argument could be made that it would be
    irrational for the Congress not to recognize Native Hawaiians.
        The Supreme Court has specifically stated that the
    recognition afforded to our native peoples is political and not
    racial. This bill specifically states that the recognition
    afforded Native Hawaiians is of a type and nature of the
    relationship the United States has with the several federally
    recognized Indian tribes, and indeed the specificity with which
    this recognition is described in the bill, no more and no less,
    is based on suggestions made in negotiations over the language
    of this bill by the Department of Justice.
        If there were any doubt as to the constitutionality of the
    Akaka bill, I would respectfully suggest that that doubt was
    resolved by the recent United States Supreme Court decision in
    the Lara case. I find it curious that there is no citation to
    the Lara case in the Department of Justice's written testimony.
    In Lara, the Supreme Court described the powers of this
    Congress of recognition as ``plenary and exclusive.'' The Court
    also said: ``The Constitution does not suggest that the Court
    should second guess the political branches' own
    determinations.''
        As for Rice v. Cayetano, it was dealing with 15th Amendment
    questions, not the question of the power of the Congress to
    afford recognition under the Indian Commerce Clause. Indeed, I
    would suggest respectfully that the Congress should not let
    fears of judicial activism or overreaching deter it from
    fulfilling an obligation to the last remaining one of our
    Nation's native peoples not yet recognized.
        As the Chair pointed out, we engaged in extensive
    negotiations with the Administration, the Department of
    Justice, the Department of Interior, and the Department of
    Defense over non-constitutional objections to the Akaka bill.
    All of those objections were resolved. The language in the
    Akaka bill today recognizes and addresses those objections.
    There can be no claims against the United States. The Native
    Hawaiian Governing Entity must recognize the civil rights of
    the citizens of the Native Hawaiian Governing Entity, and
    indeed there is nothing in this bill to suggest the possibility
    of secession or separatism.
        Native Hawaiians, Mr. Chairman, do not seek special or
    privileged treatment. Like our Nation's other patriotic native
    peoples, Native Hawaiians have fought in wars and died for our
    Country for almost 100 years, including today in Iraq and
    Afghanistan. Native Hawaiians seek only treatment equal to that
    afforded to other Native Americans. The Akaka bill affords
    Native Hawaiians that treatment, and I respectfully ask that
    you pass the Akaka bill.
        Thank you.
        [The prepared statement of Mr. Bennett follows:]

       Prepared Statement of Mark J. Bennett, Attorney General, State of
                                     Hawaii

        Good morning Chairman Dorgan, Vice Chairman Thomas, and members of
    the United States Senate Committee on Indian Affairs. Thank you for
    giving me the opportunity to address this very important bill.
        This legislation, which I will refer to as the ``Akaka Bill,'' in
    honor of its chief author and this body's only Native Hawaiian Senator,
    simply put, provides long overdue federal recognition to Native
    Hawaiians, a recognition that has been extended for decades to other
    Native Americans and Alaska Natives. It provides Native Hawaiians with
    a limited self-governing structure designed to restore a small measure
    of self-determination. American Indians and Alaska Natives have long
    maintained a significant degree of self-governing power over their
    affairs, and the Akaka Bill simply extends that long overdue privilege
    to Native Hawaiians.
        The notion of critics that S. 310 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's decisions on
    such matters. It is for this Congress to exercise its best judgment on
    matters of recognition of native peoples. Although some have expressed
    constitutional concerns, those fears are unjustified. Congress should
    not let unwarranted fears of judicial overreaching curb its desire, and
    responsibility, to fulfill its unique obligation to this country's
    native peoples.
        Native Hawaiians are not asking for privileged treatment--they are
    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. Native Hawaiians
    are simply asking for similar recognition, as the native indigenous
    peoples of the Hawaiian Islands who have suffered comparable 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. United States v.
    Sandoval. \1\ 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, it cannot possibly 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 dispossession, cultural
    disruption, and loss of full self-determination, it would be
    ``arbitrary,'' in a logical sense, to not recognize Native Hawaiians.
    ---------------------------------------------------------------------------
        \1\ 231 U.S. 28, 46 (1913).
    ---------------------------------------------------------------------------
        The Supreme Court has never in its history struck down any decision
    by the Congress to recognize a native people. And the Akaka Bill
    certainly gives the Court no reason to depart from that uniform
    jurisprudential deference to Congress's decisions over Indian affairs.
    The Supreme Court long ago stated that ``Congress possesses the broad
    power of legislating for the protection of the Indians wherever they
    may be,'' United States v. McGowan, \2\ ``whether within its original
    territory or territory subsequently acquired.'' Sandoval, 231 U.S. at
    46.
    ---------------------------------------------------------------------------
        \2\ 302 U.S. 535, 539 (1938).
    ---------------------------------------------------------------------------
        Critics, including some in the Justice Department, \3\ wrongly
    contend that the Akaka Bill creates 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 ``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.''
    \4\ 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.
    ---------------------------------------------------------------------------
        \3\ The Justice Department had other ``non-constitutional''
    objections to or concerns with a previous draft of the bill, which were
    expressed in a July 13, 2005 letter from Assistant Attorney General
    William Moschella to Senator John McCain. Among the objections and
    concerns were that the then-bill did not include language explicitly
    precluding certain claims, that the bill needed to make clear that
    military facilities and military readiness would not be affected, that
    the bill need to specify the entity or entities that would have certain
    criminal jurisdiction, and that the bill needed to explicitly state
    that the Indian Gaming Regulatory Act would not apply and that the
    Native Hawaiian Governing Entity would not have gaming rights. Through
    negotiations which included the Indian Affairs Committee, Hawaii's
    Senators, the White House, the Justice Department, the Defense
    Department, and the State of Hawaii, all of these ``non-
    constitutional'' objections and concerns were resolved by new language
    which is preserved in S. 310.
        \4\ See, e.g., Hawaiian Homelands Homeownership Act of 2000, Pub.
    L. No. 106-568, Section 202 (13) (B).
    ---------------------------------------------------------------------------
        This is not just clever word play, but is rooted in 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.
        Those who contend that the Supreme Court in Rice v. Cayetano \5\
    found the category consisting of Native Hawaiians to be ``race-based''
    under the Fourteenth Amendment and unconstitutional are simply wrong.
    The Supreme Court's decision was confined to the limited and special
    context of Fifteenth Amendment voting rights, and made no distinction
    whatsoever between Native Hawaiians and other Native Americans.
    ---------------------------------------------------------------------------
        \5\ 528 U.S. 495 (2000).
    ---------------------------------------------------------------------------
        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.'' \6\
    The Akaka Bill simply takes this recognition one step further, by
    providing Native Hawaiians with the means to reorganize a formal self-
    governing entity, something Native Americans and Native Alaskans have
    had for decades.
    ---------------------------------------------------------------------------
        \6\ See, e.g., Native Hawaiian Education Act, 20 U.S.C.
    Sec. 7512(D); Hawaiian Homelands Homeownership Act of 2000, Pub. L. No.
    106-568, Section 202 (13)(D).
    ---------------------------------------------------------------------------
        Importantly, when Congress admitted Hawaii to the Union in 1959, it
    expressly imposed upon the State of Hawaii as a condition of its
    admission two separate obligations to native Hawaiians. First, it
    required that Hawaii adopt as part of its Constitution the federal
    Hawaiian Homes Commission Act, providing homesteads (for a nominal
    rent) to native Hawaiians. \7\ Second, Congress required that the
    public lands therein granted to the State of Hawaii be held in public
    trust for five purposes, including ``the betterment of the conditions
    of native Hawaiians.'' \8\ In admitting Hawaii on such terms, Congress
    obviously did not believe it was creating an improper racial state
    government, in violation of the Fourteenth Amendment, or any other
    constitutional command. Likewise, Congress should have no
    constitutional concern as to this bill, which simply (but importantly)
    formalizes the United States's longstanding special political
    relationship with the Native Hawaiian people.
    ---------------------------------------------------------------------------
        \7\ The Admission Act, Pub. L. No. 86-3, 73 Stat. 4 (1959), Section
    4.
        \8\ Id., Section 5.
    ---------------------------------------------------------------------------
        Some opponents of the bill have noted that Native Hawaiians no
    longer have an existing governmental structure with which to engage in
    a formal government-to-government relationship with the United States.
    That objection is not only misguided and self-contradictory, but
    directly refuted by the Supreme Court's Lara decision \9\ just 3 years
    ago. 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 helping to facilitate
    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 a small measure of sovereignty to the
    Native Hawaiian people.
    ---------------------------------------------------------------------------
        \9\ United States v. Lara, 541 U.S. 193 (2004).
    ---------------------------------------------------------------------------
        The objection is also self-contradictory because one of the very
    purposes and objects of the Akaka Bill is to allow Native Hawaiians to
    reform 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, and perhaps most importantly, the objection violates the
    Supreme Court's recent Lara decision, in which the Court acknowledged
    Congress' ability to ``restorer[] previously extinguished tribal
    status--by re-recognizing a Tribe whose tribal existence it previously
    had terminated.'' \10\ Indeed, Lara single-handedly eliminates this
    constitutional objection to the Akaka Bill, by recognizing Congress'
    ability to restore tribal status to a people who had been entirely
    stripped of their self-governing structure.
    ---------------------------------------------------------------------------
        \10\ 541 U.S. at 203.
    ---------------------------------------------------------------------------
        Those who say that Native Hawaiians do not fall within Congress'
    power to deal specially with ``Indian Tribes'' because Native Hawaiians
    are not ``Indian Tribes,'' 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.'' \11\ And the term
    ``tribe'' at that time simply meant ``a distinct body of people as
    divided by family or fortune, or any other characteristic.'' \12\
    Native Hawaiians easily fit within both definitions. \13\
    ---------------------------------------------------------------------------
        \11\ Declaration of Independence paragraph 29 (1776); see also
    Thomas Jefferson, Notes on the State of Virginia 100 (William Peden ed.
    1955) (1789) (referring to Indians as ``aboriginal inhabitants of
    America''). Indeed, Captain Cook and his crew called the Hawaiian
    Islanders who greeted their ships in 1778 ``Indians.'' See 1 Ralph S.
    Kuykendall, The Hawaiian Kingdom at 14 (1968) (quoting officer
    journal).
        \12\ Thomas Sheridan, A Complete Dictionary of the English Language
    (2d ed. 1789).
        \13\ 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. 528 U.S. at 524. 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. Id. at 527.
    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.
    ---------------------------------------------------------------------------
        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, whether by choice or coercion,
    maintained 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 they believe it contradicts our nation's commitment
    to equal rights and racial harmony would use the historical
    inclusiveness of the Kingdom of Hawaii, allowing non-Hawaiians to
    participate in their government, as a reason to deny Native Hawaiians
    the recognition other native groups receive. \14\
    ---------------------------------------------------------------------------
        \14\ The same irony underlies the objection that Native Hawaiians
    should not be given recognition because they are not a fully segregated
    group within the Hawaiian Islands but are often integrated within
    Hawaii society at large, and sometimes marry outside their race. Those
    concerned about promoting racial equality and harmony should be
    rewarding Native Hawaiians for such inclusive behavior, or as we say in
    Hawaii, their ``aloha'' for people of all races, rather than using it
    against them. In any event, American Indians, too, have intermarried--
    at rates as high as 50 percent or more--and often venture beyond
    reservation borders, and yet those facts do not prevent them or their
    descendants from receiving 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 earlier, has made clear that Congress's power
    to recognize native peoples is virtually unreviewable.
        At the very least, Congress should not refrain from exercising its
    authority and obligation to recognize native people because of a mere
    theoretical possibility the judicial branch could cast aside centuries
    of uniform precedent to assert judicial supremacy. Congress ought to
    act when it believes that what it is doing is just and right and within
    its constitutional authority. It should not allow unfounded fears of
    judicial activism to hamstring its responsibility to do the right
    thing.
        And so I emphasize and repeat, that Native Hawaiians are not asking
    for privileged treatment--they are 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. To use the
    poignant words Justice Jackson employed 60 years ago: ``The generations
    of [Native people] who suffered the privations, indignities, and
    brutalities of the westward march . . . have gone . . . , and nothing
    that we can do can square the account with them. Whatever survives is a
    moral obligation . . . to do for the descendants of the [Native people]
    what in the conditions of this twentieth century is the decent thing.''
    \15\
    ---------------------------------------------------------------------------
        \15\ Northwestern Bands of Shoshone Indians v. United States, 324
    U.S. 335, 355 (1945) (Jackson, J., concurring).
    ---------------------------------------------------------------------------
        The Akaka Bill does not permit secession; 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, it should be noted, 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.
        As the Attorney General of Hawaii, I humbly and respectfully ask
    that you support this important legislation.

        Senator Akaka. Thank you very much, Mr. Bennett.
        Now, we will hear from Ms. Apoliona.

    STATEMENT OF HAUNANI APOLIONA, CHAIRPERSON, BOARD OF TRUSTEES,
                      OFFICE OF HAWAIIAN AFFAIRS;
    ACCOMPANIED BY WILLIAM MEHEULA, LEGAL COUNSEL TO THE OFFICE OF
                            HAWAIIAN AFFAIRS

        Ms. Apoliona. Senator Akaka, Senator Thomas, Senator
    Inouye, Senator Murkowski, and all present, on behalf of the
    indigenous native people of Hawaii, I extend our aloha.
        I am Haunani Apoliona. I serve as Chairperson of the Board
    of Trustees of the Office of Hawaiian Affairs. Seated behind me
    are Trustees Akana, Mossman and Stender. To my right is William
    Meheula, Counsel to the Board of Trustees.
        The Office of Hawaiian Affairs was established in 1978 when
    the citizens of Hawaii participated in a statewide referendum
    to ratify amendments to the Hawaii State Constitution. The
    record of proceedings of this 1978 constitutional convention is
    clear that the Office of Hawaiian Affairs was established in
    order to provide the native people of Hawaii with the means by
    which to give expression to their rights under Federal policy
    to self-determination and self-governance.
        In 1849, the government that represented the Native
    Hawaiian people entered into a treaty of friendship, commerce
    and navigation with the United States. In 1893, our native
    government was removed from power by force, but the United
    States Congress did not abandon us. One hundred years later,
    the Congress adopted a resolution extending an apology to the
    Native Hawaiian people for the United States' involvement in
    the overthrow of our native government.
        In the intervening years, the Congress enacted well over
    150 statutes that defined the contours of our political and
    legal relationship with the United States. Today, we, the
    indigenous native people of Hawaii seek enactment of S. 310. We
    do so in recognition of the fundamental principle that the
    Federal policy of self-determination and self-governance is
    intended to assure that the three groups of America's
    indigenous native people--American Indians, Alaska Natives, and
    Native Hawaiians--have an equal status under Federal law.
        Mr. Meheula will continue with our comments.
        Mr. Meheula. Good morning, Mr. Chairman, Mr. Vice Chairman,
    members of the Committee. After reading many, many cases
    concerning this issue, learning the history of Hawaii and the
    history of American Indians and Alaska Natives, and reading the
    many statutes that concern this issue, these are the five
    reasons why the Akaka bill is constitutional and not race-
    based.
        The first one is, Native Hawaiians are the first aboriginal
    peoples of Hawaii. Number two, the Hawaiian Kingdom was an
    indigenous government that had treaties with the United States.
    Number three, the United States, by threat of force, overthrew
    the Hawaiian Kingdom, and the Hawaiian Kingdom lands were
    turned over to the United States. Number four, since
    annexation, there have been over 150 acts of Congress that have
    recognized the political status of Native Hawaiians, including
    the Admission Act. And number five, the Apology Resolution
    stated that Native Hawaiians have never relinquished their
    claims to their inherent sovereignty.
        If you take all of those five factors and apply it to any
    of the cases, it says that Congress has the power to pass the
    Akaka bill and it will not be struck down in a court of law. A
    court of law will not second guess Congress on this issue.
        Thank you very much.
        Senator Akaka. Thank you very much, Mr. Meheula.
        [The prepared statement of Ms. Apoliona follows:]

        Senator Akaka. Mr. Katsas, doesn't the Department of
    Justice have to defend the constitutionality of any law that
    Congress enacts?
        Mr. Katsas. Senator, the Department will defend the
    constitutionality of any law you enact, subject to two
    exceptions. One is if there is no reasonable argument in favor
    of constitutionality. The other is if there is a conflict
    between the legislative and executive branches. The second
    exception is not at issue here.
        I can't speak for the Solicitor General. I can tell you
    that if he concludes that the constitutional questions here are
    close and difficult ones, I assume that applying that standard,
    he would defend the law. But the question whether the
    department would defend the law in litigation is different from
    the question of whether, in our best judgment, it raises tough
    constitutional issues, and also different from our policy
    judgment about whether or not it is an appropriate exercise of
    the Congress' power.
        Senator Akaka. In your testimony, Mr. Katsas, you reference
    a January, 2006 briefing report by the United States Commission
    on Civil Rights.
        Mr. Katsas. Yes.
        Senator Akaka. Given that the Department of Accountability
    published a May, 2006 report titled United States Commission on
    Civil Rights: The Commission Should Strengthen Its Quality
    Assurance Policies and Make Better Use of Its State Advisory
    Committees. During that briefing, was the Hawaii State Advisory
    Committee allowed to contribute to the briefing?
        Mr. Katsas. I don't know the answer to that. I think we
    sight the Commission on Civil Rights' report as evidence of the
    strong feelings on the other side of this question. We
    recognize there are strong disagreements and strong feelings on
    both sides.
        Senator Akaka. Let me ask you, do you know whether there
    were any dissenting views on the USCCR briefing report?
        Mr. Katsas. I believe there were.
        Senator Akaka. Well, I have a May 2, 2006 press release
    where the HICAC condemns the USCCR for planning and
    implementing its briefing without seeking or obtaining input
    from HICAC or acknowledging the past three HICAC reports on
    issues affecting Native Hawaiians. Do you know about that?
        Mr. Katsas. I am not familiar with the press release.
        Senator Akaka. It is my understanding that there were, and
    you did say there were dissenting views by Commissioners
    Melendez and Yaki, and that both raised grave concerns about
    the recent USCCR report opposing the bill, without listing
    findings or having a factual analysis.
        My final question to you is, would you support a report
    that did not include findings or having factual analysis?
        Mr. Katsas. Obviously, Senator, the more analysis, the
    better. We are willing to have our constitutional and policy
    objections reviewed on the merits, and I am here to present
    them on the merits without any particular deference to the
    processes of one of many groups that have looked at this.
        Senator Akaka. Thank you.
        Mr. Mark Bennett, does this bill create a race-based
    government?
        Mr. Bennett. No, Senator, absolutely not. If one accept the
    premise of the Supreme Court in Morton v. Mancari, which I
    believe we all must, that recognition afforded to aboriginal
    groups is based upon a political recognition, rather than a
    racial recognition. That is why Congress's judgments are
    reviewed under the rational basis test, rather than any other,
    and the recognition afforded here, which the bill explicitly
    states is of a type and nature of the recognition afforded
    American Indians, then clearly this is not racial recognition,
    but political.
        Senator Akaka. How will the bill affect personal property,
    social services and citizenship rights?
        Mr. Bennett. Senator, what the bill first expressly
    provides is that unless and until there are negotiations
    between the three governments, the status quo is completely
    maintained. The bill makes that clear in a number of different
    areas. This was, again, part of our negotiations with the
    Department of Justice and the Administration.
        One of their textual objections to the bill was it didn't
    make clear what powers were and were not transferred upon
    recognition. The bill now makes absolutely clear that the
    status quo is absolutely maintained, except for the
    recognition, unless and until there is implementing legislation
    by the Congress.
        The bill also makes clear that nothing in the recognition
    can affect land title or can give rise to any particular claim
    that didn't exist prior to the passage of the bill. Indeed, at
    the request of the Department of Justice, the bill even
    extinguishes for a period of time until further negotiations
    any extant claims that Native Hawaiians might have had against
    the Department of Justice. So at the Department of Justice's
    request, the bill improves the position of the United States
    vis-a-vis possible claimants.
        So the short answer, which I recognize I haven't given, is
    that the status quo is maintained.
        Senator Akaka. Let me be more specific and ask, would this
    bill allow Native Hawaiians to bring action against private
    landowners?
        Mr. Bennett. Absolutely not.
        Senator Akaka. There are some claims that extending Federal
    recognition to Native Hawaiians will result in neighbors in
    Hawaii being subject to different civil and criminal laws.
    Would that be the case?
        Mr. Bennett. Well, the bill itself provides, again Senator,
    that the status quo as to jurisdiction is maintained. It is
    possible that the negotiations between the three governments
    could provide, for example, that similar to some type of tribal
    autonomy that Indian tribes have over their own members or
    other Indians on reservation land, that it is possible that
    negotiations could provide for jurisdiction over Native
    Hawaiians with regard to some matters similar to the type of
    jurisdiction that Native Americans exercise over their members,
    but there is no preordination of that. There is no requirement
    of that, and the bill contemplates that that could only come
    into place after negotiations between the Native Hawaiian
    governing entity, the United States and the State of Hawaii.
        Senator Akaka. Thank you.
        Senator Thomas?
        Senator Thomas. Okay. Mr. Katsas, in your testimony, you
    cited cases suggesting Congress might not have the authority to
    recognize Native Americans as proposed here. The other
    witnesses, of course, have suggested it does have the
    authority. You seem both to rely on the Rice case. Is the Rice
    case about a Native Hawaiian organization like this one
    contemplated in S. 310?
        Mr. Katsas. Senator, it is about a classification like the
    one at issue here, namely a scheme in which there is a
    distinction in the law made with respect to all descendants of
    the original settlers of Hawaii. There are several aspects of
    Rice that raise constitutional questions.
        The Supreme Court, looking at that kind of distinction, a
    majority of the Supreme Court concluded that it was race and
    ethnicity based. It sets up the tribal principles that General
    Bennett referred to under Morton v. Mancari as a limited
    exception to the fundamental constitutional norms preventing
    discrimination based on race and ancestry.
        It makes clear that the Mancari principle may be less
    favored where issues of voting come into play, as they do here.
    And with respect to the exact question that we are discussing,
    whether Congress can mitigate these problems by recognizing
    Native Hawaiians as a tribe, a majority of the Supreme Court
    says that is a close and difficult question, and two concurring
    Justices, Justice Breyer and Justice Souter, addressed that
    question and concluded that a broad definition of Native
    Hawaiians, like the one at issue in Rice and like the one at
    issue here, is impermissible. It is too broad to encompass the
    constitutional notion of an Indian tribe.
        Senator Thomas. Okay. You indicated, and tell me very
    briefly, the number of authorities that you cite that would go
    to the Native Hawaiians under this arrangement. You listed a
    number of things in your statement.
        Mr. Katsas. Right.
        Senator Thomas. Like what?
        Mr. Katsas. I am sorry. Authorities that can be exercised
    by the government?
        Senator Thomas. No, by the Native Hawaiians, challenges to
    do things there, if they were given this authority.
        Mr. Katsas. I think General Bennett is exactly right that
    the final configuration of this government remains unknown and
    would need further implementing legislation to effect. Our
    point in citing both what is decided by referendum at the
    initial constitutional convention stage, and then what the
    governing entity can negotiate with the United States, our
    point in citing all of those things is that sovereignty is on
    the table. What is contemplated under this bill is the creation
    of a separate government. The department's concern is that goes
    substantially beyond a program providing a discrete benefit
    like access to land or health care. When you create a discrete
    government along these problematic lines, we start to have real
    policy concerns, as well as constitutional concerns.
        Senator Thomas. Okay, very quickly, Mr. Bennett, who
    currently own the lands conveyed to the Hawaii Homes Commission
    Act? Would these lands become Native Hawaiian reservations?
        Mr. Bennett. The State of Hawaii holds the fee title in
    trust for the benefit of Native Hawaiians of a particular blood
    quantum as required by the Admissions Act. The United States
    holds the right to enforce the trust obligations against the
    State of Hawaii. This is an asset that theoretically could be
    conveyed to the Native Hawaiian governing entity, but it would
    require substantial changes in Federal law and the Hawaii
    Constitution after negotiations. So the transfer of that asset
    is possible, but it would require changes to Hawaii's organic
    law and to the Federal statutes.
        Senator Thomas. How would this legislation determine whose
    is a Native Hawaiian? It doesn't mention limits. What would the
    membership be? What standards do you have regarding blood
    quantum or residential requirements or any of those things?
        Mr. Bennett. Senator, what the bill does is it provides who
    initially can vote, in determining, among other things, the
    requirements for being a member of the entity. So this bill
    does not predetermine who can be a member of the Native
    Hawaiian governing entity, as I would respectfully say it
    shouldn't. That should be up to the people who will be voting,
    and they are people with a particular blood quantum who can
    trace their ancestry to the original aboriginal inhabitants of
    the Hawaiian archipelago.
        So they will define who is a member of the Native Hawaiian
    governing entity. If I may add, that is why I would
    respectfully say Mr. Katsas's comment about Justice Souter's
    and Breyer's concurrence is inapt because what they were
    talking about are Government-imposed membership criteria. There
    is nothing in their concurrence, I would respectfully suggest,
    that would say that there is a problem if it is the members
    themselves of the entity who define the criteria in that way.
        Senator Thomas. So they can expand it wherever they chose?
        Mr. Bennett. I would suggest that if they were to expand it
    to beyond shared racial characteristics of Native Hawaiians,
    that it would likely not be constitutional, but they could
    certainly contract is to a subset of that.
        Senator Thomas. Thank you.
        Thank you, Mr. Chairman.
        Senator Akaka. Thank you very much, Senator Thomas.
        Senator Inouye?
        Senator Inouye. Mr. Katsas, are you really serious that if
    this bill passes and the process is carried out, that the
    people in this entity would seek independence and practice
    separatism?
        Mr. Katsas. I hope that is not likely, Senator.
        Senator Inouye. But you mentioned that.
        Mr. Katsas. Well, we mention that because for some
    supporters of the bill, that is an issue that is up for grabs.
        Senator Inouye. There are a few people who might say that,
    but this nation went to war and killed thousands of people.
    Just recently, we shot up a family in the mountains because
    they refused to abide by the laws of the land. Do you think
    this Congress and our President would tolerate any move like
    this seriously?
        Mr. Katsas. I hope not, Senator, but the point is that the
    bill puts sovereignty on the table. Whether it is the more
    temperate version of some supporters who seek to preserve
    particular programs, or the more extreme version of some
    supporters who seek a high degree of independence, it is
    sovereignty on the table. The people eligible to engage in this
    government-forming process are defined by reference to race and
    ancestry.
        Senator Inouye. Don't you agree that every step in this
    process involves the Justice Department and the State?
        Mr. Katsas. I would agree that there are checks and
    balances as the process goes forward, but again, number one,
    sovereignty is on the table; and number two, our constitutional
    and policy concerns really go to what happens at the front end.
        Senator Inouye. At best, it is limited sovereignty, isn't
    it? No Indian tribe has the right to have coins and currency.
    No Indian tribes may declare war. No Indian tribes may have
    ambassadors sent to other countries. It is a limited
    sovereignty. In fact, most Indian tribes even don't have police
    departments.
        Mr. Katsas. I would hope that the product of the
    negotiations would not put anything like that on the table. But
    whether it is a broader or narrower notion of sovereignty, we
    still are talking about a separate government, and we still are
    talking about a process where the people who get to design the
    government are defined by reference to race and ancestry.
        Senator Inouye. So in the negotiations, you would not
    recognize or approve separatism or the right to issue coins, or
    the right to send ambassadors, the right to have uniformed
    forces and declare war, would you?
        Mr. Katsas. I would hope not, but again, the negotiations
    encompass sovereignty issues like land transfers, like the
    exercise of civil and criminal jurisdiction, and like the
    redress of historic wrongs. It is an open-ended category. But
    our constitutional position, I want to be clear, does not
    depend on where the negotiations end up at the end of the
    process.
        Senator Inouye. You have indicated that you are against
    this because it covers Hawaiians who do not live in Hawaii.
        Mr. Katsas. It defines a class of people that is broader in
    its geographic dispersion, in its racial and cultural
    diversity, and in its lack of connection to an actual or de
    facto self-governing process.
        Senator Inouye. So if I am a Navajo and I want to be a part
    of the Navajo Nation, I must live in Navajo lands. Is that what
    you are saying?
        Mr. Katsas. No, that is not what we are saying. What we are
    saying is when you look at this particular class, and you look
    at all of the indicia of discreteness suggested in the Supreme
    Court cases, which are cultural, geographic, and political,
    this definition seems to us broader than all others, and that
    was the conclusion of Justice Breyer and Justice Souter
    speaking on the Supreme Court.
        Senator Inouye. Do you believe that the sovereignty of
    Indian nations is based on race?
        Mr. Katsas. I think when the Federal Government has
    relations with an existing tribe, or recognizes a tribe qua
    tribe as a political entity, the Supreme Court has said that is
    a political classification.
        Senator Inouye. Why can't that apply to Hawaiians?
        Mr. Katsas. Because the Supreme Court has also said that
    there are judicially enforceable limits on Congress's power to
    recognize tribes and the Supreme Court has made quite clear
    that if the case of Hawaii falls outside the scope of those
    limits, then we are left with a naked classification based on
    race and ancestry.
        Senator Inouye. The activity we are embarking on at this
    moment is unconstitutional?
        Mr. Katsas. It raises serious constitutional questions.
        Senator Inouye. The Administration is telling us that this
    is unconstitutional?
        Mr. Katsas. We are telling you that we think the
    constitutional questions are close. We think there is a
    litigation risk. The same considerations that make this a close
    constitutional question also cause us to oppose the bill on
    policy grounds, those considerations that the Federal
    Government should not seek to divide sovereignty on lines of
    race and ethnicity.
        Senator Inouye. General Bennett, do you agree in your
    responses?
        Mr. Bennett. No. I don't. I certainly couldn't dispute that
    there is a constitutional issue here, but it strikes me that in
    a circumstance where the court has never overturned the
    Congress' recognition of an aboriginal entity, that the
    conservative viewpoint on this is that it should be up to the
    particular political branch at issue, the Congress, to first
    define the limits of its authority, and it should not be
    deterred from that because of the possibility that a court, for
    the first time in our Nation's history, might overrule the
    political branch's exercise of its authority, especially given
    the Lara case in which the Supreme Court went to great lengths
    to talk about the plenary nature of the Congress' authority.
        It is, of course, always possible that a court could rule
    that an action by a political branch is outside the limits of
    the Constitution, but the mere possibility that the court could
    do that, I would respectfully say, should not deter one of the
    political branches from acting. I don't believe it has deterred
    the political branches from acting to the limits of their
    authority in the court of our Nation's history, given again
    that there has never been the overturning of a determination by
    Congress, given the Supreme Court's recent discussion of the
    Menominee Restoration Act, that Congress has the power to
    recognize, to un-recognize, and then to recognize again.
        And given at least the philosophical similarity of that
    situation to the instant situation, I would urge the Congress
    to act to do what it believes is right, and to let the court
    case sort itself out when it comes.
        Senator Inouye. Thank you very much, sir.
        Senator Akaka. Senator Murkowski?
        Senator Murkowski. Thank you, Mr. Chairman. I know we have
    a vote underway, so I will try to make my questions brief.
        Mr. Katsas, I guess I am listening to your responses to
    Senator Inouye about sovereignty and the sovereignty issue
    being on the table. This is where the concern is coming from
    from the Department of Justice.
        We certainly heard this in Alaska when we were dealing with
    our Alaska Native Land Claims Settlement. You know, we are
    going to have all these independent nations up there and the
    world as we knew it was going to come to an end. It was a cast
    of horribles. I think we look to what has happened in Alaska
    and how the Alaska Natives have truly demonstrated through
    their form of governments a model.
        I think for the Department of Justice to say, well, for
    policy reasons, because this small aspect may be on the table,
    and to kind of inflame the issue, I think, by suggesting that
    we are going to have a separatist entity. We are going to see
    this factionalism, I think is doing an injustice to the
    argument from the get-go.
        Several times now in the questioning, we have referred back
    to Rice v. Cayetano. I guess my question to you will be simple
    because it will require a yes or a no response. But do you
    believe that the Supreme Court holding in Rice expressly
    deprives Congress of the ability to determine that the Native
    Hawaiians fall within the ambit of the Indian Commerce Clause?
        Mr. Katsas. The one-word answer is no. The qualification is
    that although Rice has no explicit holding to that effect, it
    does have analysis that underscores our concerns.
        Senator Murkowski. You know that case well, but in Rice,
    the majority expressly states we are going to stay far away
    from that difficult terrain, and that was a comment that I had
    made in my opening as well.
        Mr. Bennett, let me ask you, you have mentioned several
    times that the Department of Justice has apparently neglected
    to mention the Lara case. I will admit that I am not familiar
    with that holding, but based on what you have given the
    Committee this morning, I guess we have not yet specifically
    concluded, either from Rice, or perhaps you find greater
    assurances in the Lara case, that in fact the constitutional
    issue that is being raised here is one that, in your opinion,
    is not as problematic as Justice is laying it out at this
    point.
        Mr. Bennett. Yes. I think that even the concurrence and the
    difficult terrain comment in Rice has to be viewed through the
    lens of Lara, where the court went to great pains to discuss
    the plenary authority of Congress, where it even said we are
    not going to suggest what the metes and bounds are of the
    Congress' authority.
        I think that that is part of the philosophy that underlay
    Morton v. Mancari, that when you were talking about the
    Congress exercising its constitutional right to develop
    political relationships, that those are determinations uniquely
    suited to the political branches of government, and not to the
    courts. I believe that that was the point made by the majority
    in Lara, that these kinds of political decisions ought to be
    left to the political branches.
        Senator Murkowski. In the statement provided by the
    Department of Justice, it suggests that the State of Hawaii is
    somehow or other backing out on the bargain by which Hawaii was
    granted statehood, just by the nature of this Akaka bill. Was
    there any such bargain? I believe your statement initially was
    that you couldn't and there were no conditions such as this to
    statehood. But I would just like you to repeat that again.
        Mr. Katsas. Is that for me?
        Senator Murkowski. No, that is for Mr. Bennett.
        Mr. Bennett. I would say two things. First of all, I find
    in this regard the department's comments ironic because the
    Admissions Act specifically requires fiscal and trust
    obligations by the State of Hawaii toward Native Hawaiians.
    What underlays the department's testimony that benefits for
    Native Hawaiians are perhaps unconstitutionally racial in
    nature, that it is part of the bargain that the State of Hawaii
    must fulfill these obligations. If they are somehow illegal
    under the 14th Amendment, then I find the comments about the
    breaking a political bargain ironic.
        But putting that aside, there is nothing in the Admissions
    Act or the debate preceding the Admissions Act which suggests
    that the type of recognition afforded other Native Americans
    could not be afforded at sometime in the future to Native
    Hawaiians, that that somehow is breaking the bargain either
    philosophically, legally, or in some other sense. There is no
    historic basis for that. America is a great melting pot and
    there is nothing about that that is inconsistent with affording
    recognition to Alaska Natives, to American Indians, or to
    Native Hawaiians.
        Senator Murkowski. And then just to quickly follow up on
    that, Ms. Apoliona, it has been suggested that Native Hawaiians
    have somehow or other chosen to abandon their distinct culture
    and community and truly their ways at the time of Statehood in
    order to become Americans. I look at our situation in Alaska,
    and just because you are an Eskimo does not mean that you are
    not an American.
        I guess the question to you is whether or not you believe
    that Native Hawaiians have sought to retain their very distinct
    culture since the overthrow of the monarchy, or whether, as the
    Department of Justice insists, that you are completely
    assimilated?
        Ms. Apoliona. We are not completely assimilated. Since the
    overthrow, Native Hawaiians have continued to assert our
    culture and our traditions by practice, by continuation of our
    language. The Native Hawaiians have continued their bridge from
    governance from a traditional time to the present time, through
    our royal societies. There is a continuing effort by Native
    Hawaiians, through the organization of our civic clubs,
    Hawaiian civic clubs that continue to today. There are
    homesteaders who continue to assert their role and their
    traditions and practices as well.
        And even at the time of the overthrow, Native Hawaiians
    asserted opposition to the annexation and it is documented. We
    have continued to carry our traditions and our ancestors
    forward with us, even to today. We certainly are not
    assimilated. I am an example sitting before you today of the
    Office of Hawaiian Affairs, and our efforts to continue to
    advocate for Native Hawaiians going forward for continuing
    benefits and the well-being of our native people.
        Senator Murkowski. Thank you.
        Thank you, Mr. Chairman.
        Senator Akaka. Thank you, Senator Murkowski.
        We have a vote here on the Floor. We can have a second
    round after this recess. I would like at this time for this
    Committee to stand in recess until the vote is concluded.
        [Recess.]
        Senator Akaka. The Committee will be in order. We will
    resume questioning of the first panel.
        Mr. Meheula, we recognize that some in the native community
    seek independence from the United States, while others prefer
    to seek Federal recognition. From your point of view, do you
    think that Native Hawaiian supporters of this bill seek to
    secede from this Union?
        Mr. Meheula. No, Senator Akaka. There is a loud small
    minority that sometimes voices independence, but they do not
    support the bill. The supporters of the bill want to work
    within the Indian Commerce Clause power. The way the bill is
    set up, it provides that before there is even an election of
    officers for the Native Hawaiian Governing Entity, that the
    Department of Interior has to certify the organic documents.
    One of the criteria that they have to satisfy themselves of is
    that the organic documents are consistent with applicable
    Federal law, which of course would not allow independence.
        I think the other way to look at that issue is that the
    majority, in fact about 75 out of 77 State Senators and
    Representatives in our State support the Akaka bill. A poll was
    taken that showed that 84 percent of the Hawaii residents
    support Federal recognition for Native Hawaiians. That would
    not be the case if they thought that there was even a small
    possibility of independence.
        Senator Akaka. Along the line of the native peoples, I
    would like to ask Mr. Micah Kane a question, and give you an
    opportunity to answer Senator Mikulski's question. My question
    to you is, are the Native Hawaiians assimilated?
        Mr. Kane. I think the irony of that question is that in
    Hawaii, Americans have assimilated to Hawaiians. Hawaiians have
    not assimilated to Americans. You have seen in the cultural
    practices of our hula, where non-Hawaiians, thousands of them,
    participate in hula festivals practicing our cultural hula. It
    is seen in the thousands of non-Hawaiians who practice in our
    language in our charter schools and in our immersion schools.
    It is seen in the practices of our cultural practices on a
    family basis, in celebrating a child's one year luau, where
    non-Hawaiians practice that.
        So it is quite ironic where the question is posed in a way
    where are Hawaiians assimilating to American, when in Hawaii is
    it non-Hawaiians who have assimilated to our culture and the
    value set of welcoming people to our lands.
        Taking it one step further, that value set of welcoming
    others as a melting pot in Hawaii has brought us to defending
    our trust in Hawaii in Hawaiian lands. I find that quite
    ironic.
        Senator Akaka. Mr. Kane, what is your feeling about the
    Akaka bill and what significance it has for the Native
    Hawaiians?
        Mr. Kane. As the Chairman of the Hawaiian Homelands
    Commission, we spend an inordinate amount of time defending our
    right to exist as a native trust in Hawaii. We spend millions
    of dollars defending our right to exist, when our efforts
    should be put in fulfilling the fiduciary responsibilities that
    are stated in the Hawaiian Homes Commission Act.
        So this Act has a tremendous impact on our ability to
    continue to serve the Hawaiian people and to serve the State of
    Hawaii. Today, the Hawaiian Homes Commission and the Department
    of Hawaiian Homelands is the largest residential developer in
    the State of Hawaii. One hundred percent of the homes that we
    build are affordable. We are part of the fabric of Hawaii. We
    are part of the success of Hawaii, and we are part of helping
    our State address many of the crisis issues that are important
    to us, like housing.
        Our lands in many ways are used to generate revenue that
    provide us with a self-sufficient opportunity to operate. Many
    of our non-Native family members use our lands in order to
    work. We manage over 400 different land dispositions that
    provide employment to companies throughout our State. It
    generates millions of Federal tax dollars and State tax
    dollars.
        So this bill is critical to allowing our department to
    exist as it does today. The issue at hand today and the
    consideration by Congress by some, especially by people in
    Justice, may seem like a quantum leap for them, but for us in
    Hawaii it is just a natural progression. People in Hawaii see
    the operation of the Department of Hawaiian Homelands. They
    embrace it. They see the operation of the Office of Hawaiian
    Affairs. They embrace it. And for those reasons, they embrace
    this Act.
        Senator Akaka. Thank you very much, Mr. Kane.
        Senator Inouye?
        Senator Inouye. I thank you very much, Mr. Chairman.
        I just wanted to provide a few statistics. During the
    Vietnam War, only one National Guard infantry brigade was sent
    to Vietnam. That brigade was the Hawaii National Guard. Many
    were wounded. Many were killed. We did not complain. A
    disproportionately large number of the members of that Guard
    were Native Hawaiians.
        At this moment, we have National Guard members from Hawaii
    in Iraq. A disproportionately large number of members of that
    brigade are from the Native Hawaiian community. They are just
    as American as anyone else and to suggest that they may involve
    themselves in separatist movements I think is an insult to
    them.
        As for involvement in our government, they are in the
    highest leadership position in every category. The last
    Governor of the Territory of Hawaii was a distinguished member
    of the Native Hawaiian community. One of the first governors of
    Hawaii was a distinguished Native Hawaiian. We have an
    abundance of Native Hawaiians in the legislature, as mayors.
    Right now, the Mayor of Honolulu and the Mayor of Maui are all
    Polynesians.
        So I am certain that the Native Hawaiian community in
    Hawaii is well prepared to run a very responsible government
    entity. We are looking forward to that, sir.
        Thank you.
        Senator Akaka. I want to thank you all for the questions. I
    want to thank our first panel for being here today and for your
    responses. I want to thank those who have come so far to attend
    this hearing. As you know, this hearing has been focused on the
    legal aspects of the bill. I want to thank all of your for
    contributing towards that for the Committee. It may well be
    very helpful.
        So mahalo noeloa. Thank you very much.
        Now, I would like to have our second panel come forward.
        Mr. William Burgess represents Aloha for All. Mr. Burgess
    is a retired attorney who now advocates against the
    reorganization of a Native Hawaiian government. Mr. Burgess
    will testify in opposition to S. 310, raising various concerns,
    including his concern that the bill would divide the State into
    separate racial jurisdictions and violate the equal protection
    of the laws.
        Mr. Viet Dinh is a professor of law at Georgetown
    University Law Center. Professor Dinh will testify about
    Congress's authority to establish a process for the
    reorganization of a Native Hawaiian entity. Mr. Dinh is one of
    the authors of a recent paper on this matter.
        Mr. Burgess, will you please proceed with your statement?

             STATEMENT OF H. WILLIAM BURGESS, ALOHA FOR ALL

        Mr. Burgess. Aloha and thank you.
        Senator Akaka. Aloha.
        Mr. Burgess. Mr. Chairman, thank you.
        S. 310 would be the first step in the breakup of the United
    States. Its premise is that Hawaii needs two governments, one
    in which everyone can vote and that government must become
    smaller and weaker; and one in which only Native Hawaiians can
    vote, and that one must become bigger and stronger as the other
    government becomes smaller and weaker.
        In the negotiation process called for by S. 310, transfers
    go only one way. Those transfers are unlimited in scope and in
    duration. It can and very likely will, that process of
    negotiation, continue slice by slice, year after year, until
    the State of Hawaii is all gone.
        But even then, the process won't be over because there are
    today living descendants of the indigenous people of every
    State in the Union. Surely, they will take notice and demand
    their own governments.
        In 1778 when Captain Cook's ships happened upon the
    Hawaiian Islands, they found the most stratified of the
    Polynesian chiefdoms. They found a system that was referred to
    as the kapu system, in which high rank holds the rule and
    possesses the land title. Commoners were landless and subject.
        At that very time in history, when Captain Cook's ships
    arrived in Hawaii, the people of the United States were engaged
    in a rebellion against a monarchy which attempted to subjugate
    them. They were in the process of creating on that continent a
    new Nation conceived in liberty and dedicated to the principle
    that all men are created equal.
        Pretty soon after that, the histories of the Kingdom of
    Hawaii and the people of Hawaii and the people of the United
    States intertwined, not by conquest, but by trade, by mutual
    exchanges between people that were mutually beneficial. Soon,
    Hawaiians themselves liked the new system. They liked being
    part of the world trade because it brought them benefits. In
    1840, Hawaii adopted its first constitution. That constitution
    began with a preamble that said God hath made of one blood all
    nations of men to dwell on the earth in unity and blessedness.
    God hath also bestowed certain rights alike on all men and all
    chiefs and all people of all lands.
        Since that time, the people of Hawaii began progressing
    from the harsh kapu system and moved slowly and inexorably
    toward freedom and liberty and equality.
        And then that process at some point reversed itself. I
    believe the time at which that reversal of direction took place
    was in 1921. Ironically, it happened because of the Congress of
    the United States adopting the Hawaiian Homes Commission Act.
    For the first time in Hawaii, and for the first time in the
    United States, explicit race was used and imposed on the people
    of Hawaii and on the people, indirectly, of the United States.
    It said that the beneficiaries of the Hawaiian Homes Commission
    Act were those of not less than one half part of the races that
    inhabited the Hawaiian Islands previous to 1778.
        Since that time, the people of Hawaii have been going back
    down the dark path toward racial supremacy and separatism.
    Today, the control of the State of Hawaii is not in the people.
    Sovereignty of the people has been eroding, and today, because
    as we have seen from the Broken Trust article recently and the
    book that was recently published, the book by several
    distinguished citizens of Hawaiian ancestry, including Sam
    King, the senior Federal judge, and the other distinguished
    Hawaiian people who wrote that Broken Trust article, the
    government of the State of Hawaii has been compromised. The
    separation of powers has been erased in Hawaii. It is not the
    people who rule.
        But now the Akaka bill would polish it off. It would be the
    end of Hawaii as being governed by the people of Hawaii, and it
    would reimpose the dark rule that existed before and the dark
    rule that has existed everywhere in the world in which racial
    governments have held the rule.
        Hawaiians don't need it. The census 2000 showed, and an
    even more recent survey last year showed, and particularly in
    the example of California, where people of Hawaiian ancestry,
    that is the largest population of Hawaiians outside of the
    State of Hawaii, with 60,000 at that time and slightly more
    estimated now. It happens that in the recent survey by the
    census, that the sample of people of Hawaiian ancestry happened
    to be almost exactly similar to the age of the sample
    population of the entire State of California.
        The demographics showed that Hawaiians are fully capable
    without governmental assistance, without the Akaka bill, of
    succeeding in free enterprise under the regime of equality,
    because their family incomes and their household incomes
    exceeded that of the median population of California, and the
    ages were similar.
        The people of Hawaii don't want the Akaka bill. The vote
    that was taken in the 1959 plebiscite was 94 percent in favor
    of statehood. That means that at least two our of three of
    every Native Hawaiian that voted in 1959 said yes for
    statehood. They said yes for the State boundaries. In the two
    more recent comprehensive polls, the answers were by all the
    people of Hawaii, including Native Hawaiians, the answers were
    two to one no to the question of, do you want Congress to pass
    the Akaka bill.
        With all due respect to our distinguished Senators, I would
    respectfully submit that the best system for Hawaiians and for
    all the rest of us is one in which like, as in sports, everyone
    plays the game by the same rules. I ask you to resoundingly and
    finally and firmly say no to this bill.
        [The prepared statement of Mr. Burgess follows:]

          Prepared Statement of H. William Burgess, Aloha for All \1\
    ---------------------------------------------------------------------------
        \1\ Aloha for All, is a multi-ethnic group of men and women, all
    residents, taxpayers and property owners in Hawaii. We believe that
    Aloha is for everyone; every citizen is entitled to the equal
    protection of the laws without regard to her or his ancestry.
        For further information about the Akaka bill see: http://
    www.aloha4all.org (click on Q&A's) and http://www.angelfire.com/hi2/
    hawaiiansovereignty/OpposeAkakaBill.html or email
    hwburgess@hawaii.rr.com.
    ---------------------------------------------------------------------------
        Aloha and thank you for inviting me to testify about this bill
    which would brush aside core underpinnings of the United States itself.
        Two years and three months ago, Sen. Inouye, in his remarks on
    introduction of the then-version of the Akaka bill (S. 147) at 151
    Congressional Record 450 (Senate, Tuesday, January 25, 2005) conceded
    that federal Indian law does not provide the authority for Congress to
    create a Native Hawaiian governing entity.
        ``Because the Native Hawaiian government is not an Indian tribe,
    the body of Federal Indian law that would otherwise customarily apply
    when the United States extends Federal recognition to an Indian tribal
    group does not apply.''
        ``That is why concerns which are premised on the manner in which
    Federal Indian law provides for the respective governmental authorities
    of the state governments and Indian tribal governments simply don't
    apply in Hawaii.''
        There being no tribe, the Constitution applies. The Akaka bill
    stumbles over the Constitution virtually every step it takes.

       As soon as the bill is enacted, a privileged class would be
            created in America. Sec. Sec. 2(3) & (22)(D) and Sec. Sec. 3(1)
            & (8) would ``find'' a ``special political and legal
            relationship'' between the United States and anyone with at
            least one ancestor indigenous to lands now part of the U.S.
            that ``arises out of their status as aboriginal, indigenous,
            native people of the United States.'' Creation of a hereditary
            aristocracy with a special legal and political relationship
            with the United States is forbidden by the Anti-Titles of
            Nobility clause of the Constitution.

        This ``sleeper'' provision would also have profound international
    and domestic consequences for the United States. For over 20 years, a
    draft Declaration of Indigenous Rights has circulated in the United
    Nations. The U.S. and other major nations have opposed it because it
    challenges the current global system of states; is ``inconsistent with
    international law''; ignores reality by appearing to require
    recognition to lands now lawfully owned by other citizens.'' In
    November 2006, a subsidiary body of the U.N. General Assembly rejected
    the draft declaration proposing more time for further review. Enactment
    of the Akaka bill would undo 20 years of careful diplomatic protection
    of property rights of American citizens abroad and at home.

       Also immediately upon enactment, superior political rights
            are granted to Native Hawaiians, defined by ancestry: Sec. 7(a)
            The U.S. is deemed to have recognized the right of Native
            Hawaiians to form their own new government and to adopt its
            organic governing documents. No one else in the United States
            has that right. This creates a hereditary aristocracy in
            violation of Article I, Sec. 9, U.S. Const. ``No Title of
            Nobility shall be granted by the United States.''

       Also, under Sec. 8(a) upon enactment, the delegation by the
            U.S. of authority to the State of Hawaii to ``address the
            conditions of the indigenous, native people of Hawaii'' in the
            Admission Act ``is reaffirmed.'' This delegation to the State
            of authority to single out one ancestral group for special
            privilege would also seem to violate the prohibition against
            hereditary aristocracy. The Constitution forbids the United
            States from granting titles of nobility itself and also
            precludes the United States from authorizing states to bestow
            hereditary privilege.

       Sec. 7(b)(2)(A)&(B) Requires the Secretary of the DOI to
            appoint a commission of 9 members who ``shall demonstrate . . .
            not less than 10 years of experience in Native Hawaiian
            genealogy; and . . . ability to read and translate English
            documents written in the Hawaiian language,'' This thinly
            disguised intent to restrict the commission to Native Hawaiians
            would likely violate the Equal Protection clause of the Fifth
            Amendment, among other laws, and would require the Secretary to
            violate his oath to uphold the Constitution.

       Sec. 7(c)(1)(E) & (F) require the Commission to prepare a
            roll of adult Native Hawaiians and the Secretary to publish the
            racially restricted roll in the Federal Register and thereafter
            update it. Since the purpose of the roll is to deny or abridge
            on account of race the right of citizens of the United States
            to vote, requiring the Secretary to publish it in the Federal
            Register would cause the Secretary to violate the Fifteenth
            Amendment and other laws.

       Sec. 7(c)(2) Persons on the roll may develop the criteria
            and structure of an Interim Governing Council and elect members
            from the roll to that Council. Racial restrictions on electors
            and upon candidates both violate the Fifteenth Amendment and
            the Voting Rights Act.

       Sec. 7(c)(2)(B)(iii)(I) The Council may conduct a referendum
            among those on the roll to determine the proposed elements of
            the organic governing documents of the Native Hawaiian
            governing entity. Racial restrictions on persons allowed to
            vote in the referendum would violate the 15th Amendment and the
            Voting Rights Act.

       Sec. 7(c)(2)(B)(iii)(IV) Based on the referendum, the
            Council may develop proposed organic documents and hold
            elections by persons on the roll to ratify them. This would be
            the third racially restricted election and third violation of
            the 15th Amendment and the Voting Rights Act.

       Sec. 7(c)(4)(A) Requires the Secretary to certify that the
            organic governing documents comply with 7 listed requirements.
            Use of the roll to make the certification would violate the
            Equal Protection clause of the Fifth Amendment, among other
            laws, and would, again, require the Secretary to violate his
            oath to uphold the Constitution.

       Sec. 7(c)(5) Once the Secretary issues the certification,
            the Council may hold elections of the officers of the new
            government. (If these elections restrict the right to vote
            based on race, as seems very likely) they would violate the
            15th Amendment and the Voting Rights Act.)

       Sec. 7(c)(6) Upon the election of the officers, the U.S.,
            without any further action of Congress or the Executive branch,
            ``reaffirms the political and legal relationship between the
            U.S. and the Native Hawaiian governing entity'' and recognizes
            the Native Hawaiian governing body as the ``representative
            governing body of the Native Hawaiian people.'' This would
            violate the Equal Protection clause of the 5th and 14th
            Amendments by giving one racial group political power and
            status and their own sovereign government. These special
            relationships with the United States are denied to any other
            citizens.

       Sec. 8(b) The 3 governments may then negotiate an agreement
            for:

             transfer of lands, natural resources & other assets; and
            delegation of governmental power & authority to the new
            government; and exercise of civil & criminal jurisdiction by
            the new government; and ``residual responsibilities'' of the
            U.S. & State of Hawaii to the new government.

        This carte blanche grant of authority to officials of the State and
    Federal governments to agree to give away public lands, natural
    resources and other assets to the new government, without receiving
    anything in return, is beyond all existing constitutional limitations
    on the power of the Federal and State of Hawaii executive branches.
    Even more extreme is the authority to surrender the sovereignty and
    jurisdiction of the State of Hawaii over some or all of the lands and
    surrounding waters of some or all of the islands of the State of Hawaii
    and over some or all of the people of Hawaii. Likewise, the general
    power to commit the Federal and State governments to ``residual
    responsibilities'' to the new Native Hawaiian government.

       Sec. 8(b)(2) The 3 governments may, but are not required to,
            submit to Congress and to the Hawaii State Governor and
            legislature, amendments to federal and state laws that will
            enable implementation of the agreement. Treaties with foreign
            governments require the approval of \2/3\ of the Senate.
            Constitutional amendments require the consent of the citizens.
            But the Akaka bill does not require the consent of the citizens
            of Hawaii or of Congress or of the State of Hawaii legislature
            to the terms of the agreement. Under the bill, the only mention
            is that the parties may recommend amendments to implement the
            terms they have agreed to.

        Given the dynamics at the bargaining table created by the bill:
    where the State officials are driven by the same urge they now exhibit,
    to curry favor with what they view as the ``swing'' vote; and Federal
    officials are perhaps constrained with a similar inclination; and the
    new Native Hawaiian government officials have the duty to their
    constituents to demand the maximum; it is not likely that the agreement
    reached will be moderate or that any review by Congress or the Hawaii
    legislature will be sought if it can be avoided. More likely is that
    the State will proceed under the authority of the Akaka bill to
    promptly implement whatever deal has been made.
        The myth of past injustices and economic deprivations. Contrary to
    the claims of the bill supporters, the U.S. took no lands from
    Hawaiians at the time of the 1893 revolution or the 1898 Annexation (or
    at any other time) and it did not deprive them of sovereignty. As part
    of the Annexation Act, the U.S. provided compensation by assuming the
    debts of about $4 million which had been incurred by the Kingdom. The
    lands ceded to the U.S. were government lands under the Kingdom held
    for the benefit of all citizens without regard to race. They still are.
    Private land titles were unaffected by the overthrow or annexation.
    Upon annexation, ordinary Hawaiians became full citizens of the U.S.
    with more freedom, security, opportunity for prosperity and sovereignty
    than they ever had under the Kingdom.
        The political and economic power of Hawaiians increased
    dramatically once Hawaii became a Territory. University of Hawaii
    Political Science Professor Robert Stauffer wrote:
        It was a marvelous time to be Hawaiian. They flexed their muscle in
    the first territorial elections in 1900, electing their own third-party
    candidates over the haole Democrats and Republicans . . . The governor-
    controlled bureaucracy also opened up to Hawaiians once they began to
    vote Republican.
        By the 1920s and 1930s, Hawaiians had gained a position of
    political power, office and influence never before--nor since--held by
    a native people in the United States.
        Hawaiians were local judges, attorneys, board and commission
    members, and nearly all of the civil service. With 70 percent of the
    electorate--but denied the vote under federal law--the Japanese found
    themselves utterly shut out. Even by the late 1930s, they comprised
    only just over 1 percent of the civil service.
        This was ``democracy'' in a classic sense: the spoils going to the
    electoral victors.

                        ***

        Higher-paying professions were often barred to the disenfranchised
    Asian Americans. Haoles or Hawaiians got these. The lower ethnic
    classes (Chinese, Japanese and later the Filipinos) dominated the
    lower-paying professions.
        But even here an ethnic-wage system prevailed. Doing the same work,
    a Hawaiian got paid more per hour than a Portuguese, a Chinese, a
    Japanese or a Filipino--and each of them, in turn, got paid more than
    the ethnic group below them.

        Robert Stauffer, ``Real Politics'', Honolulu Weekly, October 19,
    1994 at page 4.

        The alliance between Hawaiians, with a clear majority of voters
    through the 1922 election, and more than any other group until 1938,
    and the Republican party is described in more depth in Fuchs, Hawaii
    Pono: A Social History, Harcourt, Brace & World, Inc., 1961, at 158-
    161.
    Hawaiians prosper without ``entitlements'' or the Akaka bill
        The 2005 American Community Survey (ACS) for California, recently
    released by the U.S. Census Bureau, confirms Native Hawaiians' ability
    to prosper without special government programs. The estimated 65,000
    Native Hawaiian residents of California, with no Office of Hawaiian
    Affairs or Hawaiian Homes or other such race-based entitlements,
    enjoyed higher median household ($55,610) and family ($62,019) incomes,
    relative to the total California population ($53,629 and $61,476
    respectively) despite having smaller median household and family sizes.
    California is particularly appropriate for comparing earning power,
    because California has the greatest Native Hawaiian population outside
    of Hawaii; and it happens that the median age of Native Hawaiians
    residing in California (33.7 years) is almost identical to that of the
    general population of California (33.4 years).
        The fact that Native Hawaiians are quite capable of making it on
    their own was suggested by Census 2000 which showed the then-60,000
    Native Hawaiian residents of California enjoyed comparable relative
    median household and family incomes despite their 5 year younger median
    age.
        See Jere Krischel, Census: Native Hawaiians Do Better When Treated
    Equally, CERA Journal Special Akaka Bill Edition included in our
    packets for Committee members. *
    ---------------------------------------------------------------------------
        * The information referred to has been retained in Committee files.

        Hawaiians today are no different, in any constitutionally
    significant way, from any other ethnic group in Hawaii's multi-ethnic,
    intermarried, integrated society. Like all the rest of us, some do
    well, some don't and most are somewhere in between.
    The people of Hawaii don't want the Akaka bill
        Grassroot Institute of Hawaii commissioned two comprehensive
    automated surveys of every household in the telephone universe of the
    State of Hawaii, one in July 2005 and the second in May 2006. Of the
    20,426 live answers to the question, two to one consistently answered
    ``No'' when asked, ``Do you want Congress to pass the Akaka bill? ''
        In 1959, in the Hawaii statehood plebiscite, over 94 percent voted
    ``Yes'' for Statehood.
    Racial Tensions are simmering in Hawaii's melting pot
        So said the headline on the first page of USA Today 3/7/07
    describing the attack Feb. 19th 2007 in the parking lot of the Waikele
    mall on Oahu, when a Hawaiian family beat a young soldier and his wife
    unconscious while their three year old son sat in the back seat of
    their car. The attack, ``unusual for its brutality,'' sparked
    impassioned public debate.
        Tenured University of Hawaii Professor Haunani Kay Trask's picture
    is displayed in the USA today article and the caption quotes her,
    ``Secession? God I would love it. I hate the United States of
    America.''
        The USA Today article and related links may be found at http://
    tinyurl.com/2jle2e. See also, The Gathering Storm, Chapter 1 of
    Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the
    Aloha State by Kenneth R. Conklin, Ph.D. http://tinyurl.com/2f7p8b.
        The brutality at Waikele mall is a flashing red light. Over 1
    million American citizens in Hawaii are under siege by what can fairly
    be called an evil empire dedicated to Native Hawaiian Supremacy.
        Red shirted protesters march often and anti-American signs are
    regularly posted along King Street on the Grounds of Iolani Palace. Our
    Governor wears the red protest shirts and tells them she supports their
    cause. Last August at a statehood day celebration at Iolani Palace,
    thugs with bull horns in the faces of the high school band members
    there to play patriotic music, drove them away.
        Passage of the Akaka bill would encourage the Hawaiian
    Supremacists. Even if the bill is declared unconstitutional after a
    year or two or more of litigation, it may well be too late to put the
    Aloha State back together again.
        A firm rejection of the Akaka bill by this Committee would reassure
    the people of Hawaii that racial supremacy and separatism are not
    acceptable. That, in the eyes of government, there is only one race
    here. It is American.
        Mahalo.

        Senator Akaka. Thank you, Mr. Burgess.
        At this time, I would like to ask for the testimony of Viet
    Dinh.
        Before you begin, I am going to ask Senator Inouye to take
    the Chair for a few minutes. Thank you.
        Senator Inouye. [Presiding.] Professor Dinh?

             STATEMENT OF VIET D. DINH, PROFESSOR OF LAW,
     GEORGETOWN UNIVERSITY LAW CENTER AND BANCROFT ASSOCIATES, PLLC

        Mr. Dinh. Thank you very much, Mr. Chairman and members of
    the Committee. Thank you for the opportunity, indeed the honor
    and privilege, to be here today.
        I would note that, as the Chairman has noted earlier, Neil
    Katyal, Chris Bartolomucci and I prepared a formal legal
    opinion on the question before us today, and submitted it to
    the State of Hawaii and the Office of Hawaiian Affairs earlier
    this year. Our joint opinion forms much of the basis for my
    testimony here today.
        Like the Native American tribes that once covered the
    continental United States, Native Hawaiians were a sovereign
    people for hundreds of years, until a U.S. military-aided
    uprising overthrew the Hawaiian monarchy in 1893, and a
    subsequent government acceded to U.S. annexation.
        A century later, as so many members of this Committee have
    noted, in 1993 Congress formally apologized to the Hawaiian
    people for U.S. involvement in this regime change.
        S. 310, the Native Hawaiian Government Reorganization Act
    of 2007, would establish a commission to certify a roll of
    Native Hawaiians willing to participate in the reorganization
    of the Native Hawaiian Government Entity. Those Native
    Hawaiians would set up an interim governing council which in
    turn would hold elections and referenda among Native Hawaiians
    to draw up the governing documents and elect officers for their
    native government. That entity, eventually, would be recognized
    by the United States as a domestic dependent sovereign
    government, similar to the government of an Indian tribe.
        Mr. Chairman, based on the constitutional text and judicial
    precedent that we have studied, I firmly believe that the
    Supreme Court would uphold the Congressional authority under
    the Constitution to enact S. 310 and recognize a Native
    Hawaiian government entity as a dependent sovereign government
    within the United States. In other words, to treat Native
    Hawaiians just as Congress treats continental natives and
    Alaska Natives.
        First, there is little question that Congress has the power
    to recognize and to restore the sovereignty of Native American
    tribes. The Supreme Court has acknowledged Congress' ``plenary
    and exclusive power,'' power that is inherent in the
    Constitution and explicit in the Indian Commerce Clause and the
    Treaty Clause of our Constitution. More importantly, Congress
    has used that power to restore the relationship with tribal
    governments that were previously terminated by the United
    States.
        For example, in 1954, Congress terminated by legislation
    the Menominee Tribe in Wisconsin. Two decades later, in 1973,
    Congress reversed course and enacted a restoration in the
    Menominee Restoration Act, restoring the Federal relationship
    with the tribe and assisting in its reorganization. This is the
    process that the court cited with approval in the United States
    v. Lara case that General Bennett has cited earlier. The bill
    before Congress is patterned after the Menominee Restoration
    Act and would do for Native Hawaiians exactly that which
    Congress did for the Menominees in 1973.
        Second, Congress has the power to treat Native Hawaiians
    just as it treats other Native Americans. This is because
    Congress' decision to treat a group of people as a native group
    and to use its broad Indian affairs powers to pass legislation
    regarding that group, is a political decision, one the courts
    are not likely to second guess. Indeed, the Supreme Court has
    said that so long as Congress's decision is not ``arbitrary,''
    the courts have no further say in the matter.
        S. 310 passes that test. Congress has long considered, for
    example, Alaska Natives to be Native Americans and recognized
    Native Alaskan governing bodies even though Alaska Natives
    differ from Native Americans in the continent historically and
    culturally. The Supreme Court has not questioned Congress's
    power to so treat the Alaska Natives. If Congress may treat
    Alaska Natives as an dependent sovereign people, it follows
    that Congress may do the same for Native Hawaiians.
        It seems to me that the principal constitutional objection
    to S. 310, that it impermissibly classifies on the basis of
    race, fails fundamentally to recognize that congressional
    legislation dealing with indigenous groups is a political, not
    racial, decision, and therefore is neither discriminatory nor
    unconstitutional. Rice v. Cayetano, of course, specifically
    declined to address whether ``Native Hawaiians have a status
    like that of Indians in organized tribes,'' and ``whether
    Congress may treat the Native Hawaiians as it does the Indian
    tribes.''
        On those specific questions, these questions that Congress
    must grapple with in enacting S. 310, the court has spoken
    clearly in other contexts. For example, in United States v.
    Antelope, 430, U.S. 645, a case decided in 1977, and I quote
    here at length: ``The decisions of this court leave no doubt
    that Federal legislation with respect to Indian tribes,
    although relating to Indians as such, is not based upon
    impermissible racial classifications. Quite the contrary,
    classifications expressly singling out Indian tribes as
    subjects of legislation are expressly provided for in the
    Constitution and supported by the ensuing history of the
    Federal Government's relations with Indians.''
        Mr. Katsas has pointed to Justices Breyer and Souter's
    concurring opinion, casting doubt as to whether or not the
    class of people at issue in Rice v. Cayetano would legitimately
    constitute under our Constitution an Indian tribe. General
    Bennett has pointed out one way to distinguish that analysis,
    given the fact that the Act here only establishes the process
    and the membership of the tribe is ultimately to be determined
    by the Native Hawaiians themselves.
        However, I would like to point out further that at issue in
    Rice v. Cayetano is a completely different class of people, and
    the specific quote that Mr. Katsas and others have pointed to
    as casting doubt on that broad class of people as not
    legitimately constituting a tribe, differs significantly from
    the definition of Native Hawaiians under Section 310 of this
    legislation.
        For example, and here allow me again to read the class that
    Justice Breyer and Justice Souter objected to: ``But the
    statute does not limit the electorate to Native Hawaiians.
    Rather, it adds to approximately 80,000 Hawaiians, about
    130,000 additional Hawaiians, defined as including anyone with
    one ancestor who lived in Hawaii prior to 1778, thereby
    including individuals who are less than 1/50th original
    Hawaiian, assuming nine generations since 1778 and the present.
        That was the class of people that Justice Breyer and
    Justice Souter expressed doubt that could constitute an Indian
    tribe. If you read carefully Section 310 of the legislation at
    issue, S. 310 defines the class of Native Hawaiians as those
    persons who are lineally descendant from Native Hawaiians in
    existence at the time of 1873. So it is a much more
    significantly limited class and one that traces direct legal
    descendants from the Native Hawaiian tribes directly.
        So I think that on its own facts, Justice Breyer's and
    Justice Souter's concurrence and objections thereto would not
    apply. Given these facts, one does not know how they would vote
    in this regard.
        One other point that has been made that I want to address
    here very briefly is the continuity aspects of Federal
    recognition of sovereignty. Aside from the legal point, which I
    will address in a moment, it strikes me as supreme and somewhat
    tragic irony that the actions of the United States military,
    and by extrapolation the United States Government, in
    dispossessing a person of their sovereignty and culture and
    self-determination, would then become the basis to deprive the
    United States Government of the authority to restore that
    sovereignty and self-determination.
        The D.C. Circuit has a quite famous doctrine called the
    Chutzpa doctrine, that is, you kill your father and mother and
    beg leniency for being an orphan. It seems to me that it is a
    tragic irony that the argument that there has not been a
    continuous self-representing people and sovereignty, when we
    have dispossessed by our own action those very characteristics,
    is now being used in order to argue that Congress does not have
    the authority to restore them.
        Aside from that, as a legal matter, it is of very little
    purchase. I have already recounted the history of the
    Menominees and the courts have upheld that restoration power in
    Congress. More importantly in a case called United States v.
    John, the court faced this question precisely with respect to
    the Choctaw Indians originally of Mississippi. After the
    Congress failed to recognize them, the Choctaw Indians
    dispersed throughout the United States and only remnants are in
    Mississippi. The United States Supreme Court says clearly that
    that dispersal does not deprive Congress of the ability to
    treat the Choctaw as sovereign within Mississippi and to define
    their status as Indian Country.
        I think this question without doubt has been decided and
    therefore is of little constitutional moment.
        Mr. Chairman, members of this Committee and this body will
    undoubtedly debate whether, as a policy matter, Congress should
    recognize Native Hawaiians as a dependent sovereignty and
    facilitate the reorganization of their government. This is a
    legitimate and important debate, one in which there are many
    views, but I think the Constitution already answers the legal
    question. Congress has the power to help restore and recognize
    Native Hawaiian sovereignty.
        Thank you very much.
        [The prepared statement of Mr. Dinh follows:]

       Prepared Statement of Viet D. Dinh, Professor of Law, Georgetown
              University Law Center and Bancroft Associates, PLLC

        Senator Inouye. I thank you very much, sir.
        I have just one question, Mr. Burgess. In your written
    statement, you indicated that this violates Article I, Section
    9 of the Constitution. Is that correct?
        Mr. Burgess. That is the anti-nobility clause of the
    Constitution. Yes, that is correct.
        Senator Inouye. Does that also suggest that the Statehood
    Act was a violation of that clause?
        Mr. Burgess. The Statehood Act, Senator Inouye, in Section
    4, required the new State of Hawaii as a condition of statehood
    to adopt the Hawaiian Homes Commission Act. That, I believe, is
    unconstitutional. That is the subject of litigation which is
    now pending.
        Senator Inouye. Thank you.
        Mr. Burgess. May I add, Senator, that in the lawsuit in
    which we challenged the constitutionality of the Hawaiian Homes
    Commission Act, we do not seek to dispossess Native Hawaiians
    who have homesteads. We ask that the court permit the
    negotiation between the State and the homesteaders, so that
    they can become homeowners, fee simple homeowners of their
    property, and then terminate the Hawaiians Homes Commission,
    and Native Hawaiians could be treated just like everyone else,
    have the same joys and the same responsibilities of home
    ownership.
        Senator Inouye. Thank you.
        Professor Dinh, does this bill, S. 321, suggest that Native
    Hawaiians are not citizens of the United States?
        Mr. Dinh. No, sir, it does not. Indeed, as you cited to
    Article I, Section 9, I had to pull out my Constitution and
    read it because our research has shown that no court, not the
    Supreme Court or any other courts in the United States, have
    ever held anything unconstitutional under this provision. Let
    me read that provision. It says, ``No title of nobility shall
    be granted by the United States.'' On its face, this law does
    no such thing, and that is I think why this clause has never
    been relied upon by any court in order to strike down any
    legislation because the United States simply does not engage in
    the process of making lords or knights or prince potentates.
    Nothing in this bill offends or upsets that tradition.
        Senator Inouye. Does this bill suggest that upon its
    passage, Native Hawaiians would not be subjected to the laws of
    the United States?
        Mr. Dinh. No, sir, it does not.
        Senator Inouye. They would be subject to pay taxes, obey
    the laws, to the draft, et cetera?
        Mr. Dinh. Yes, sir.
        Senator Inouye. Do you believe that this is a race-based
    bill?
        Mr. Dinh. No, sir, I do not, for the exact reason that the
    Supreme Court has never considered legislation dealing with
    Indian affairs to be race-based bills. Sure, it does single out
    a class, that is, the tribe itself, but that in and of itself
    is a power that is expressly granted in the Constitution under
    the Indian Commerce Clause and the Treaty Clause. The courts
    have very clearly and consistently characterized this as a
    political decision, not a race-based classification.
        Senator Inouye. Do Native American Indians lose their
    citizenship when they leave their reservation?
        Mr. Dinh. Absolutely not, Mr. Chairman.
        Senator Inouye. And you have absolutely no question as to
    the constitutional authority on the part of Congress to enact
    this bill?
        Mr. Dinh. We are very confident in our constitutional
    analysis, based upon the constitutional text and the precedents
    we have studied. Like General Bennett, I am not so confident as
    to say that we are 100 percent confident of anything that the
    nine members of the Supreme Court do, but we are very
    confident, based upon the Constitution and the precedents up to
    this point that Congress has ample authority to enact this
    legislation.
        Senator Inouye. Under the Constitution, if this bill is
    enacted, it could also be repealed?
        Mr. Dinh. Absolutely, sir. One of the aspects of this bill
    is that it does give those who challenge it and think it to be
    unconstitutional an immediate basis for standing in order to
    challenge it in Federal court. For example, the Department of
    Interior and the commission it sets up would have to create a
    roll of Native Hawaiians eligible to vote for the interim
    governing council. Anybody who applied and is excluded from the
    roll based upon noncompliance with statutory criteria has
    immediate standing to challenge that decision. So in that way,
    this constitutional question will be very quickly and favorably
    resolved in favor of congressional authority.
        Senator Inouye. Does this bill upon its passage create a
    separate entity?
        Mr. Dinh. It does not create a separate entity of Native
    Hawaiian sovereignty. It creates a commission in order to
    facilitate the process of drafting the organic document. That
    is a question that is very important to note because it does
    not empower the Department of Interior or the State of Hawaii
    or any other government agency to conduct the polling and the
    election necessary in order to reconstitute the Native Hawaiian
    Governing Entity. All that it does is that it reestablishes the
    sovereign status of the Native Hawaiians and puts in place a
    process through which Native Hawaiians who fit the criteria as
    specified in Section 310 to start the process of self-
    governance.
        This, as I noted before, is precisely the process that
    Congress employed in the 1973 Menominee Restoration Act, which
    has been cited with approval by the United States Supreme
    Court.
        Senator Inouye. And in this process, the government of the
    United States and the government of the State of Hawaii would
    be involved?
        Mr. Dinh. They would be as part of the three way
    negotiation process that Mr. Chairman and members of the
    Committee have noted. Obviously, nobody is going to pre-judge
    the results of the negotiation process.
        Senator Inouye. Do you believe realistically that we would
    permit separatism?
        Mr. Dinh. It would be not only contrary to everything that
    we believe in as Americans, but I think it would be contrary to
    everything that all of Native Hawaiians believe as Americans
    and as Native Hawaiians.
        Senator Inouye. I thank you very much, sir.
        Senator Akaka. [Presiding]. Thank you very much, Senator
    Inouye.
        Mr. Burgess, the language in the bill is the result of
    successful negotiations between representatives from the
    Department of Justice and the Administration, the Office of
    Management and Budget, the Hawaii State Attorney General, and
    the Hawaii congressional delegation.
        In your testimony, you mention about the certification
    commission. This language was modified as introduced and
    replaced at the urging of the Department of Justice. Are you
    saying that the Department of Justice would approve language
    that would violate the Constitution?
        Mr. Burgess. Senator Akaka, I understand the Department of
    Justice's position pretty much as it was expressed by the
    Attorney General here today, and as it was expressed in June of
    last year by the Administration through William Moschella of
    the Department of Justice, and that is that they strongly
    oppose the Akaka bill, and that they have not signed off on the
    provisions of the Akaka bill.
        I personally, my analysis does not indicate that the
    questions, not only the constitutional questions, but the
    possibility, for example, of gaming. I don't think the bill
    puts those questions to rest. I might say that as to the
    question of whether this bill could lead eventually to
    secession, it is my understanding that you, Senator Akaka,
    actually acknowledged that that is a possible outcome of this
    bill, and that you would leave it to your grandchildren.
        There are many people in Hawaii, I agree with Bill Meheula,
    that it is probably a minority, and I hope so, but they have
    expressed a desire for independence. I have heard Haunani-Kay
    Trask, a tenured professor at the University of Hawaii, say
    that, ``God, I would love to see secession; I hate the United
    States of America.'' And there is an active and vocal group of
    Native Hawaiians who want independence. As I understand it, the
    proponents of the bill have gone out of their way to assure
    those people that this Akaka bill is just the first step, and
    it does not rule out eventual secession from the United States.
    That is what concerns me.
        Senator Akaka. Is General Bennett here? May I ask you,
    General Bennett, the same question that I asked Mr. Burgess?
        Mr. Bennett. There is no possibility that this bill could
    lead to secession or anything like that. The Constitution of
    the United States does not provide for secession. There is no
    nullification process or provisions of the Constitution. The
    negotiators would not have the ability to negotiate anything
    like that. The bill simply provides and makes clear in its
    provisions that since the recognition afforded the Native
    Hawaiian Governing Entity is of the precise type and nature
    afforded the American Indian tribes, that the type of limited
    dependent self-government is limited to that afforded to those
    Native American tribes.
        Senator Akaka. Thank you. Thank you very much.
        Professor Dinh, does Congress have the power to treat
    Native Hawaiians just as it treats Native Americans?
        Mr. Dinh. Absolutely, sir.
        Senator Akaka. What is your view as a former head of legal
    counsel in the Department of Justice, and constitutional law
    professor, is there any Federal law that imposes criteria
    preventing groups seeking Federal recognition from acquiring
    such recognition because of the form of government that
    indigenous people had?
        Mr. Dinh. No, sir, and that is for a very obvious reason,
    because prior to the enactment of our Constitution, the Native
    Americans who inhabited our land had various types of
    government, be it a monarchy in Hawaii to a smaller form of
    chief-based monarchy, if you will, of hereditary chieftains in
    the United States. Notwithstanding those differences in
    governmental structures, obviously they have become the
    dependent sovereign entities within the United States and
    Congress has the power under the Treaty Clause and the Indian
    Commerce Clause to establish full relations.
        Senator Akaka. There was mention of the Lara case here. In
    your written testimony, you mention that the Lara case relates
    to Congress's authority to deal with Indian tribes. How does
    this case relate to Native Hawaiians, in your opinion?
        Mr. Dinh. In a number of ways, Mr. Chairman. Of course, the
    exact question of the Lara case, whether or not there is double
    jeopardy from a Federal prosecution after a tribal prosecution,
    is not at issue before this Committee. But as part of its
    analysis of that ultimate question of double jeopardy, the
    court has to go through a number of steps that are of quite
    significant relevance.
        First, as General Bennett has pointed out, and I repeat it,
    the court recognized the traditional and unbroken line of cases
    establishing the whole plenary and exclusive authority of the
    Congress to deal with Indian Affairs. Secondly, it recognizes
    the unbroken line of cases that says absent arbitrary
    determinations, courts will not likely second guess the
    political determinations of Congress as to what constitutes an
    Indian tribe.
        More significantly, it cited with approval the Menominee
    restoration process, a termination and restoration process in
    1954 and 1973, upon which this bill is patterned after.
    Incidentally, while it cited with approval that process as
    evidence of Congress's power to terminate and restore Indian
    sovereignty, it cited to the Native Hawaiian example with
    respect to the Hawaiian Homes Act and the Admissions Act.
        Senator Akaka. Thank you.
        Senator Inouye, do you have any further questions?
        I want to thank our witnesses on the second panel and also
    the first panel. I am hopeful and confident that our colleagues
    on this Committee will once again support our efforts to extend
    the Federal policy of self-governance and self-determination to
    Native Hawaiians.
        Just yesterday, the House Committee on Natural Resources
    favorably reported the House companion bill, H.R. 505, without
    amendments.
        In closing here, respecting the rights of Native Hawaiians
    does not impede or diminish the rights of non-Native Hawaiians.
    Hawaii is truly an aloha State as its people have demonstrated,
    that can foster an appreciation for culture that does not come
    at the expense of any individual or community. For me, the
    aloha spirit is something that unifies and brings us together.
    When we are guided by the spirit of compassion and love, we are
    able to bring about outcomes that benefit all of the people of
    Hawaii.
        I appreciate the testimony of our witnesses. At this time,
    I would like to let the witnesses know that they can
    voluntarily supplement their written testimony. My colleagues
    and I may wish to submit written questions to you in response
    to your testimony today.
        For those not present to testify in this hearing, the
    record will open until May 17, 2007.
        Again, I want to thank all of you for being here and
    responding and contributing to this hearing.
        Senator Inouye?
        Senator Inouye. Mr. Chairman, may I join you in thanking
    all of the witnesses who have participated, not just those who
    are for it, but those who are opposed to it. It has resulted in
    a fine discussion, which is necessary for legislation. We thank
    you very much.
        Senator Akaka. Thank you very much.
        This hearing is adjourned.
        [Whereupon, at 12:10 p.m., the Committee was adjourned.]
                                A P P E N D I X

       Prepared Statement of Hon. Tom Coburn, U.S. Senator from Oklahoma
        The indigenous peoples of Hawaii have a proud and distinguished
    history and remain a vibrant part of the State of Hawaii and this
    nation. Throughout their rich history, the people of Hawaii have served
    as one of the finest examples of the ``melting pot.'' While we have
    sometimes fallen short of this ideal as a nation, the people of Hawaii
    have shown how a diverse society can become a single, unique and
    vibrant culture and economy.
        In the words of Frank Fasi, Democratic National Committeeman for
    Hawaii in 1953 testimony before the Senate: ``Hawaii is the furnace
    that is melting that melting pot. We are the light. We are showing the
    way to the American people that true brotherhood of man can be
    accomplished. We have the light and we have the goal. And we can show
    the peoples of the world. \1\ ''
    ---------------------------------------------------------------------------
        \1\ Testimony of Frank Fasi, Democratic National Committeeman for
    Hawaii, before the Senate Committee on Interior and Insular Affairs,
    June 30, 1953. http://www.heritage.org/Research/LegalIssues/wm1117.cfm.
    ---------------------------------------------------------------------------
        E Pluribus Unum--From many, one: that uniquely American concept may
    have it roots in Philadelphia and points eastward, but it was given
    renewed meaning when Hawaii entered the Union.
        To the casual observer, the bill before the Committee today--the
    Native Hawaiian Government Reorganization Act (the Akaka bill)--appears
    non-controversial; Yet, it poses the single greatest risk to ``e
    pluribus unum'' that this Congress will face during the 110th.
        This bill does not restore ``tribal status'' where it once existed;
    It creates an entirely new government based solely on race. The Kingdom
    of Hawaii was a diverse society and government (much like the state
    today). The new ``tribe'' will not reflect that tradition and will
    create a government just for those deemed ``indigenous.''
        Unlike the many Indian tribes in my state whose governments were
    subsequently terminated, no such history exists for a Native Hawaiian
    entity. As a recent at 1998, the State of Hawaii agreed with this
    statement. In a brief before the Supreme Court, the state argued: ``the
    tribal concept simply has no place in the context of Hawaiian history.
    \2\ ''
    ---------------------------------------------------------------------------
        \2\ Brief in Opposition to Petition for Writ of Certiorari at p.
    18, Rice v Cayetano, 528 US 495 (2000).
    ---------------------------------------------------------------------------
        American Indians weren't even formally given full citizenship until
    1924. \3\ In contrast, Native Hawaiians became citizens of this country
    in 1900, twenty four years earlier. \4\ Native Hawaiians took part in
    the referendum that brought Hawaii into the Union as a state, and as
    one government.
    ---------------------------------------------------------------------------
        \3\ http://memory.loc.gov/ammem/today/jun02.html.
        \4\ http://www.capitol.hawaii.gov/hrscurrent/Vol01_Ch0001-0042F/03-
    ORG/ORG_0004.HTM.
    ---------------------------------------------------------------------------
        In Oklahoma, and even in Alaska, there were distinct tribal
    populations with existing governments at the time of statehood. That
    was not the case in Hawaii. In Alaska, distinct tribal communities
    existed at the time of statehood and were addressed in that state's
    organic documents. Again, that is not the case in Hawaii.
        We must not overlook the fact that Congress lacks the authority to
    create governments based on ``indigenous status,'' and that doing so
    now creates a precedent for other indigenous peoples that existed in
    parts of the United States. Consider vast territories once occupied by
    Mexico in the Southwest; Consider the vast territory gained as a result
    of the Louisiana Purchase. There are many other examples. The
    Constitution very clearly gives Congress the power to regulate commerce
    among the ``Indian tribes.'' It does not speak to ``indigenous
    peoples.'' This bill begins the balkanization of America.
        Proponents must answer this question: if the law allowed for Native
    Hawaiians to seek recognition as a tribe through the established
    regulatory framework (at the Department of Interior) would it qualify?
    If the answer is yes, we should simply alter this proposal to allow a
    Native Hawaiian entity to apply for recognition as a tribe. It cannot,
    because no tribe ever existed and because it fails the basic seven step
    process established to determined tribal status recognition.
        That is the paradox of this legislation: On the one hand,
    proponents argue that Native Hawaiians are eligible for recognition
    just like Indian tribes; on the other hand, they argue that they are
    not an Indian tribe and must be treated separately (creates an Office
    of Native Hawaiian Affairs within Interior).
        Is this bill good for Native Hawaiians? I have the great privilege
    of representing the members of 38 recognized tribes in Oklahoma. I
    doubt you will find one that appreciates the efficiency or
    effectiveness of the Department of Interior, yet this bill will require
    significant interaction between the Native Hawaiian and the Department.
    Consider that Interior is now subject to a multi-billion dollar lawsuit
    for gross mismanagement of trust resources; Consider that Bureau of
    Indian Affairs schools are among the worst in the nation; Consider the
    grave conditions present at most federally run hospitals and clinics
    for American Indians.
        The bill before us doesn't even guarantee that Native Hawaiians
    will be subject to Constitutional protections. Instead, it leaves that
    and many other critical, basic issues up to negotiation between the
    state, federal, and new Native Hawaiian governments. The Bill of
    Rights--which guarantees our most basic liberties--should never be left
    to negotiation. This bill should make clear that the U.S Constitution
    remains the supreme law of the land.
        Furthermore, it does not preclude the eventual secession of the new
    government from the United States. Consider what Senator Akaka said
    last year: According to Hawaiian press, ``When asked during a National
    Public Radio interview whether the bill `could eventually go further,
    perhaps even leading to outright independence.' he replied, ``That
    could be. That could be. As far as what's going to happen at the other
    end, I'm leaving it up to my grandchildren and great-grandchildren. \5\
    ''
    ---------------------------------------------------------------------------
        \5\ http://www.hawaiireporter.com/story.aspx?9abaa598-e962-4238-
    be26-67b473a20aa3.
    ---------------------------------------------------------------------------
        Despite the very noble intentions of many who support this
    legislation, I am concerned this is less about obtaining tribal
    government status or self-determination and more about protecting the
    many federal funding streams for Native Hawaiians, which have been
    called into question in recent litigation. The only way one can
    guarantee these programs in perpetuity is to manufacture tribal status.
    That is an affront to the many tribes in my state who labored to regain
    their status, and the many hundreds around the country who are standing
    in line seeking recognition.
        My hope is that this bill will never reach the Senate floor. It is
    bad policy for America, and it is bad policy for Native Hawaiians. If
    we proceed, however, I intend to offer dozens of amendments that will
    minimize many of the potential dangers present in the current bill.
        Mr Chairman, I thank you for conducting this important hearing
    today. I ask that my full statement be made part of the record, that I
    be allowed to submit additional documents for submission in the record,
    and that I have the ability to submit additional questions once I have
    reviewed today's testimony.
                                     ______

        Prepared Statement of Hon. Ted Stevens, U.S. Senator from Alaska

        Chairman Dorgan, Vice Chairman Thomas, distinguished Members of the
    Committee, thank you for holding this hearing. I appreciate the
    opportunity to testify in support of S. 310, the Native Hawaiian
    Government Reorganization Act of 2007.
        As a Senator for Alaska, the decision to support S. 310 is a simple
    one. Native cultures and traditions are an important part of the
    heritage and history of both Alaska and Hawaii. Preserving the rights
    of Alaska Natives has been my priority for more than forty years, and
    it is my firm belief that Native Hawaiians deserve these protections as
    well.
        As you know, the Constitution and a series of federal laws
    establish our nation's policy of self-determination and self-governance
    for Native Americans. In 1971, Alaska Natives were granted the same
    status through the passage of the Alaska Native Claims Settlement Act,
    or ANCSA. Now, more than 100 years after Hawaii was annexed by the
    United States, S. 310 would formally--and finally--expand this policy
    to include Native Hawaiians.
        S. 310 contains three principal elements to help Native Hawaiians
    achieve legal parity with Native Americans and Alaska Natives. The
    first would establish a process for federal recognition of a Native
    Hawaiian governing entity, which would be authorized to negotiate with
    the United States and the State of Hawaii. These negotiations would
    address the unique issues faced by Native Hawaiians--from the transfer
    of lands to natural resource rights--and help ensure their future well-
    being.
        This Act would also create two bodies dedicated to the best
    interests of Native Hawaiians. A new office focused solely on Native
    Hawaiian issues would be established in the Department of the Interior.
    A working group of officials from federal agencies with programs
    affecting Native Hawaiians would also be formed.
        Many agree that governmental reorganization is the best way to
    improve the position of Native Hawaiians, and my good friends in the
    Hawaiian delegation have now introduced legislation to do so in five
    consecutive Congresses.
        In the past, this legislation has been endorsed by the Governor of
    Hawaii, the Hawaii State Legislature, and thousands of individual
    Hawaiians. The National Congress of American Indians, the Alaska
    Federation of Natives, the American Bar Association, and dozens more
    groups and organizations all support its purpose. The current version
    of this bill also satisfies concerns raised by the Department of
    Justice in 2005.
        Of course, this legislation is not without critics. Several members
    of Congress, the news media, and the general public contend it would
    create a race-based government. Last year, for example, the Wall Street
    Journal called this measure ``secessionist, unconstitutional, and un-
    American.''
        Similar arguments were made during the debate over ANCSA, and they
    are as mistaken today as they were nearly four decades ago. Those
    opposed to ANCSA claimed it would create a state within a state, a
    movement for secession by that state, and ultimately a separate nation
    within our nation. None of these predictions have come true--instead,
    ANCSA's clarification of the relationship between the Federal
    Government and Native communities has empowered them to achieve great
    success. Alaska Native corporations now have thousands of employees and
    annually distribute dividends to their shareholders. Alaska Natives
    have preserved their culture and identity--but they have also continued
    to abide by the laws of our land. Nothing suggests Native Hawaiians
    will not do the same.
        The bill being considered today, S. 310, would provide Native
    Hawaiians with many of the same opportunities ANCSA offered to Alaska
    Natives. Although these bills are structured differently, their
    objectives are the same. S. 310 would create a framework to help Native
    Hawaiians address their unique circumstances, afford them greater
    control over their natural resources and assets, and, in my view, right
    a long-standing wrong.
        Our Federal Government has a responsibility to promote the welfare
    of all indigenous peoples. To properly fulfill this commitment, we must
    extend our federal policy of self-determination and self-governance to
    Native Hawaiians. I hope each of you will support this Act and join in
    our efforts to see it signed into law.
                                     ______

     Prepared Statement of Hon. Neil Abercrombie, U.S. Representative from
                                     Hawaii

        Chairman Dorgan, Vice-Chairman Thomas and Members of the Committee,
    I would like to express my wholehearted support for S. 310, the Native
    Hawaiian Government Reorganization Act of 2007. This legislation has
    been introduced by Senator Daniel Akaka and Senator Daniel Inouye. I,
    along with my colleague Congresswoman Mazie Hirono, have introduced the
    companion measure in the House of Representatives.
        The purpose of the bill is to provide a process for the
    reorganization of the Native Hawaiian governing entity for the purposes
    of a federally recognized government-to-government relationship. The
    Native Hawaiian Government Reorganization Act would provide Native
    Hawaiians the same right of self-governance and self-determination that
    are afforded to other indigenous peoples.
        Since Hawaii was annexed as a territory, the United States has
    treated Native Hawaiians in a manner similar to that of American
    Indians and Alaska Natives. This bill would formalize that relationship
    and establish parity in federal policies towards all of our indigenous
    peoples.
        As a requirement of Hawaii's admission to the United States in
    1959, the State of Hawaii was required to take over administration of
    the Hawaiian Home Lands and other former Hawaiian government lands for
    Native Hawaiians. Since that time, the State of Hawaii has administered
    that trust with the Federal Government retaining oversight and the
    ability to enforce that trust.
        One of the goals of H.R. 505 is to allow Native Hawaiians to take
    responsibility for assets already set aside for them by law--without
    taking anything away from all others who have worked hard and make up
    the diversity of people who are Hawaii today.
        H.R. 505 provides a democratic process for the reorganization of
    the Native Hawaiian governing entity, including the development of a
    base roll of the adult members of the Native Hawaiian community and the
    election of a Native Hawaiian Interim Governing Council charged with
    developing the organic governing documents of the Native Hawaiian
    governing entity. This governing instrument will be subject to the
    approval of the Secretary of the Interior.
        This bill will also provide a structured process to address the
    longstanding issues resulting from the annexation of Hawaii. This
    discussion has been avoided for far too long because no one has known
    how to address or deal with the emotions that arise when these matters
    are discussed. There has been no structured process. Instead, there has
    been fear as to what the discussion would entail, causing people to
    avoid the issues. Such behavior has led to high levels of anger and
    frustration, as well as misunderstandings between Native Hawaiians and
    non-Native Hawaiians.
        The bill provides a structured process to negotiate and resolve
    these issues with the federal and state governments and will alleviate
    the growing mistrust, misunderstanding, anger, and frustration about
    these matters.
        This measure is supported by Hawaii's Republican Governor, Linda
    Lingle, Hawaii's Congressional delegation, and the Hawaii State
    Legislature. The bill is also supported by a number of local and
    national organizations in Hawaii who have passed resolutions in support
    of this bill.
        Mahalo Chairman Dorgan and Vice-Chairman Thomas for your
    consideration of this legislation.
                                     ______

         Prepared Statement of Micah A. Kane, Chairman, Hawaiian Homes
                                   Commission

        Aloha kakou, Chairman Dorgan, Vice Chairman Thomas, Senator Inouye,
    Senator Akaka and Members of this Committee.
        I am Micah Kane, Chairman of the Hawaiian Homes Commission, and I
    thank you for this opportunity to express strong support for this bill
    and to address how federal recognition plays a critical role in
    sustaining our Hawaiian Home Lands program.
        In 1921, the United States Congress adopted the Hawaiian Homes
    Commission Act and set aside more than 200,000 acres of land in Hawaii
    to rehabilitate the native Hawaiian people. With Statehood in 1959, the
    Hawaiian home lands program and its assets were transferred to the
    State of Hawaii to administer. The United States, through its
    Department of the Interior, maintains an oversight responsibility and
    major amendments to the Act require Congressional consent.
        For more than 80 years, the Department of Hawaiian Home Lands has
    worked determinedly to manage the Hawaiian Home Lands trust effectively
    and to develop and deliver lands to native Hawaiians. Currently, there
    are over 35,000 native Hawaiians living in 25 homestead communities
    throughout the State. Although unique and distinct, our communities are
    an integral part of each state's economic, social, cultural, and
    political fabric. About one percent of our lands are dedicated to
    commercial and industrial uses, producing revenues to help sustain our
    programs.
        Passage of S. 310 will enable the Hawaiian Homes Commission to not
    only continue fulfilling the mission Congress entrusted to us, but to
    reach incredible successes that we are only starting to realize.
        These five reasons are why we need this bill to be passed:

       Our housing program benefits the entire state.

             Today, the Department of Hawaiian Home Lands is the largest
            single family residential developer in the State of Hawaii. In
            the past four years our program has provided more than 2,250
            families a homeownership opportunity and we are planning
            several thousand more over then next four years. Each home we
            build represents one more affordable home in the open market or
            one less overcrowded home. Homeownership opportunities have
            also lead us to focus on financial literacy in order to ensure
            that our beneficiaries will be successful and responsible
            homeowners. In a state with high living costs and an increasing
            homeless population, there is no question that we are doing our
            part in raising the standard of living for all residents of our
            great state.

       The Department of Hawaiian Home Lands builds and maintains
            partnerships that benefit the entire communities.

             We think regionally in our developments and we engage the
            whole community in our planning processes. Our plans
            incorporate people, organizations (e.g. schools, civic clubs,
            hospitals, homeowner associations), all levels of government
            and communities from the entire region-not only our
            beneficiaries. It is a realization of an important Hawaiian
            concept of ahupuaa-in order for our Hawaiian communities to be
            healthy; the entire region must also be healthy. This approach
            encourages a high level of cooperation, promotes respect among
            the community, and ensures that everyone understands how our
            developments are beneficial to neighboring communities and the
            region.

       The Department of Hawaiian Home Lands is becoming a self-
            sustaining economic engine.

             Through our general lease program, we rent nonresidential
            parcels to generate revenue for our development projects. Since
            2003, the Department has doubled its income through general
            lease dispositions. We have the ability to be self-sufficient.
            Revenue generation is the cornerstone to fulfilling our mission
            and ensuring the health of our trust.

       Hawaiian communities foster Native Hawaiian leadership.

             Multi-generational households are very common in our Hawaiian
            homestead communities. This lifestyle perpetuates our culture
            as knowledge and values are passed through successive
            generations. These values build strong leaders and we are
            seeing more leaders rising from our homesteads and the Hawaiian
            community at-large. It is common to see Native Hawaiians in
            leadership positions in our state. Three members of Governor
            Lingle's cabinet are Hawaiian, as are almost one-fifth of our
            state legislators. Hawaiian communities grow Hawaiian leaders
            who make decisions for all of Hawaii.

       Hawaiian home lands have similar legal authority as proposed
            under S. 310.

             Because of our unique legal history, the Hawaiian Homes
            Commission exercises certain authority over Hawaiian home
            lands, subject to state and federal laws, similar to that being
            proposed under S. 310.

             The Commission exercises land use control over our public
            trust lands, but complies with State and County infrastructure
            and building standards. The Commission allocates land within
            its homestead communities for public and private schools,
            parks, churches, shopping centers, and industrial parks.

             Amendments to the trust document, the Hawaiian Homes
            Commission Act, require State legislative approval and, in some
            instances, Congressional consent. Hawaiian home lands cannot be
            mortgaged, except with Commission approval, and cannot be sold,
            except by land exchanges upon approval of the United States
            Secretary of the Interior.

             The State and Counties exercise criminal and civil
            jurisdiction on Hawaiian home lands. Gambling is not allowed
            and the Commission cannot levy taxes over Hawaiian home lands.

        Ultimately, I envision our program becoming so successful that we
    will work ourselves out of a job. I envision a time when we will not
    need the Department of Hawaiian Home lands, a time when our native
    people, as defined in the Hawaiian Homes Commission Act, will be fully
    rehabilitated. We will be self-sufficient, self-governing native
    Hawaiians contributing to an island society. The first step toward
    achieving this vision is passage of this legislation.
        The Hawaiian Home Lands Trust and our homesteading program are part
    of the fabric of Hawaii. It is part of the essence of Hawaii. On behalf
    of the Hawaiian Homes Commission, I ask that you approve this bill so
    we can work toward recognition and continue doing good work for all the
    people of Hawaii.
                                     ______

         Response to Written Questions Submitted by Hon. Tom Coburn to
                                Haunani Apoliona

        Question 1. Do you believe that the State of Hawaii will be a more
    cohesive society after this legislation is enacted?
        Answer. Yes. In 1978, the citizens of Hawaii convened a
    constitutional convention, at which amendments to the Hawaii State
    Constitution were considered, debated, and ultimately approved for
    adoption. Following the convention, the proposed amendments to Hawaii's
    constitution were ratified by a majority of the voting citizens of
    Hawaii.
        Principal amongst the amendments to Hawaii's State constitution
    adopted by the citizens of Hawaii in 1978 was an amendment to establish
    the Office of Hawaiian Affairs. The stated purpose for establishing the
    Office of Hawaiian Affairs was to provide the indigenous, native people
    of Hawaii with a means by which to give expression to their rights as
    one of three groups of America's indigenous, native people to self-
    determination and self-governance. In establishing the Office of
    Hawaiian Affairs, the citizens of Hawaii sought to address the long-
    standing injury to the Native Hawaiian people that arose out of the
    illegal overthrow of the Native Hawaiian government.
        Since that time, the State of Hawaii has supported the rights of
    the indigenous, native people of Hawaii through numerous legislative
    enactments, including legislation to implement the amendment to the
    State's constitution establishing the Office of Hawaiian Affairs. Three
    successive Governors of the State of Hawaii have expressed their strong
    support for Federal legislation that would extend the United States'
    policy of self-determination and self-governance to the Native Hawaiian
    people through the formal recognition of a reorganized Native Hawaiian
    government. The State legislature has also repeatedly adopted
    resolutions of support for such Federal legislation.
        In 1993, the United States Congress enacted Public Law 103-150,
    also known as the Apology Resolution, which extended an apology to the
    Native Hawaiian people for the United States' role in the overthrow of
    the Native Hawaiian government and announced a policy of reconciliation
    between the United States and the Native Hawaiian people.
        All of these actions, by both State and Federal governments,
    reflect an effort to provide justice to the Native Hawaiian people so
    that the State of Hawaii might become a more cohesive society.

        Question 2. In 1998, the State of Hawaii argued that ``the tribal
    concept simply has no place in the context of Hawaiian history.'' What
    has changed since that time?
        Answer. Please refer to the response of the Attorney General of the
    State of Hawaii to this question.

        Question 3. Given that this legislation modified the vote of the
    Hawaiian people in the late 1950s, should the people of Hawaii be given
    an opportunity to vote in a referendum on the new proposal?
        Answer. In 1959, as part of the compact between the United States
    and the new State of Hawaii, the Hawaii Admissions Act provided that
    the United States would transfer lands held in trust by the United
    States for Native Hawaiians under the authority of the Hawaiian Homes
    Commission Act of 1920 to the State of Hawaii provided that the State
    held those lands in trust for Native Hawaiians. The United States
    retained the authority to enforce against any breach, by the State, of
    its trust responsibility for the Hawaiian homelands. The United States
    also insisted that any amendment to the Hawaiian Homes Commission Act
    proposed by the State would have to be ratified by the U.S. Congress.
        In addition, as a condition of its admission into the Union of
    States, the United States required that the State of Hawaii include the
    provisions of the Hawaiian Homes Commission Act in the State's
    Constitution.
        Another provision of the Hawaii Statehood Act of 1959 provided for
    the return of lands previously ceded to the United States, and required
    that the revenues derived from the ceded lands be used for five
    purposes, one of which is the betterment of the conditions of Native
    Hawaiians.
        As indicated above, in 1978, the citizens of the State of Hawaii
    adopted amendments to the State's constitution to establish the Office
    of Hawaiian Affairs. The State Constitution thereafter provided that
    the Office of Hawaiian Affairs was charged with administering the
    revenues derived from the ceded lands for the betterment of the
    conditions of Native Hawaiians and such other resources, including
    land, natural resources, and other financial resources that may be
    transferred to the Office of Hawaiian Affairs.
        Upon the Federal recognition of the Native Hawaiian government, S.
    310 authorizes the United States, the State of Hawaii and the Native
    Hawaiian government to enter into a process of negotiations to address
    the transfer of lands, natural resources and financial resources to the
    Native Hawaiian government.
        It is generally anticipated that among the lands that would be
    considered for transfer to the Native Hawaiian government would be the
    lands that were set aside under Federal law, the Hawaiian Homes
    Commission Act, that are now held in trust by the State of Hawaii for
    Native Hawaiians.
        In addition, it is also generally anticipated that among the
    resources that would be transferred to the Native Hawaiian government
    would be the resources that are currently administered by the Office of
    Hawaiian Affairs.
        However, as contemplated by the provisions of S. 310, the transfer
    of lands and resources will require changes in existing Federal and
    State law, as well as amendments to the Hawaii State Constitution.
        Amendments to the Hawaii State Constitution require the approval of
    the citizens of Hawaii. Accordingly, before lands now held in trust for
    Native Hawaiians by the State of Hawaii can be transferred to the
    Native Hawaiian government, the portion of the Hawaii State
    Constitution that contains the provisions of the Hawaiian Homes
    Commission Act, will have to be amended--through a vote of the eligible
    voters in the State of Hawaii.
        Likewise, before the resources currently administered by the Office
    of Hawaiian Affairs can be transferred to the Native Hawaiian
    government, the provisions of the Hawaii State Constitution that vest
    authority in the Office of Hawaiian Affairs to administer such
    resources, will have to amended--and again, those amendments will have
    to be approved by the citizens of Hawaii.
        Thus, while there is no authority in Hawaii State law for statewide
    referenda, the citizens of Hawaii do have to vote and approve any
    amendments to the State's constitution--an opportunity that will be
    afforded to them if lands and resources now addressed in the State's
    constitution are to be transferred to the Native Hawaiian government.

        Question 4. If there is no difference between Congress' power to
    regulate ``Indian tribes'' and ``indigenous peoples'' why does this
    legislation treat Native Hawaiians differently from Native Americans by
    segregation of programs and the creation of a new Office of Native
    Hawaiian Affairs [sic Relations]?
        Answer. The Congress has enacted laws to carry out its political
    and legal relationship with the indigenous, native people of the United
    States that are designed to address the unique conditions of each of
    America's three groups of indigenous, native people--American Indians,
    Alaska Natives and Native Hawaiians.
        As a general proposition, programs and services provided to members
    of Federally-recognized Indian tribes are carried out through the
    Bureau of Indian Affairs within the U.S. Department of the Interior and
    the Indian Health Service within the U.S. Department of Health and
    Human Services, and to a lesser extent, through other Federal agencies.
        In Alaska, as a function of Congress' enactment in 1971 of the
    Alaska Native Claims Settlement Act, the United States' political and
    legal relationship with Alaska Natives is reflected in the Act's
    authorization of Alaska Native regional and village corporations in
    which Alaska Natives are shareholders. Many Federal programs are
    administered by non-profit Native corporations that are affiliated with
    the Native regional and village corporations.
        Beginning in 1910, the Congress has enacted over 160 Federal
    statutes designed to address the conditions of Native Hawaiians. In the
    same manner that the Congress elected to fashion its political and
    legal relationship with Alaska Natives in a different manner than its
    relationship with Indian tribes, the Congress has provided unique
    authority for the provision of Federal programs and services to Native
    Hawaiians.
        The authority for the establishment of the Office of native
    Hawaiian Relations contained in S. 310, is--as is stated in the bill--
    for the purpose of carrying out the Federal policy of reconciliation
    with the Native Hawaiian people that was articulated in the Apology
    Resolution referenced above, Public Law 103-150.

        Question 5. If existing law was modified, and Native Hawaiians were
    allowed to apply for tribal recognition through the established
    process, would it [sic] (Native Hawaiians) qualify for such status?
        Answer. The Congress has repeatedly recognized that Native
    Hawaiians have a political and legal relationship with the United
    States through the enactment of over 160 Federal laws, including the
    Hawaiian Homes Commission Act, the Hawaii Statehood Act, the Native
    Hawaiian Education Act, the Native Hawaiian Health Care Improvement
    Act, the Native Hawaiian Homelands Recovery Act, and Title VIII of the
    Native American Housing Assistance and Self-Determination Act, to name
    a few.
        As indicated in the response of Hawaii's Attorney General to this
    question, we agree that Native Hawaiians clearly meet the Federal
    acknowledgment criteria and could qualify for Federal acknowledgment
    under the existing regulatory criteria.

        Question 6. Do you believe that the Bill of Rights, and the
    essential protections it provides, is up for negotiation for any
    American citizen?
        Answer. The provisions of the United States Constitution apply to
    all citizens of the United States and the citizens of each State.
    Nothing in S. 310 alters the framework or application of the U.S.
    Constitution.

        Question 7. Can you discuss with this committee all studies that
    have been completed demonstrating the impact of the new Native Hawaiian
    governing entity, its assumption of all appropriate lands, and any
    other appropriate factors, on the Hawaiian economy?
        Answer. Once the Native Hawaiian government is reorganized and the
    United States extends Federally-recognized status to the Native
    Hawaiian government, S. 310 provides for a process of negotiation
    amongst the United States, the State of Hawaii, and the Native Hawaiian
    government. Until such negotiations take place and the parties to the
    negotiations reach agreement and thereafter propose recommendations to
    the U.S. Congress and the State of Hawaii for amendments to existing
    Federal and State laws to implement their agreements, any assessment of
    economic impact would have to be based on conjecture.

        Question 8. If the State of Hawaii and the new governing entity are
    unable to reach agreement on measures outlined in the legislation,
    please describe how potential conflicts will be settled.
        Answer. The provisions of S. 310 provide that any claims against
    the United States or the State of Hawaii are to be addressed through a
    process of negotiations, and S. 310 further provides that such claims
    are nonjusticiable. As to other matters to be addressed by the three
    governments, it is likely that as part of the negotiations process, the
    three governments will identify the manner in which potential conflicts
    will be resolved. S. 310 does not confine the three governments to
    anyone means of resolving potential conflicts.

        Question 9. Do you believe that the Native Hawaiian entity should
    receive consideration before the roughly 300 entities currently seeking
    recognition as a tribe before the Department of the Interior?
        Answer. The Federal Acknowledgment Process does not operate on the
    basis of chronological order. Although they are assigned numbers,
    petitions are not considered on the basis of when a letter of intent is
    first filed. Rather, petitions are considered on the basis of when they
    are complete and deemed ready for active consideration. Some petitions
    have been pending in the Federal Acknowledgment Process for many years
    and have yet to be deemed either complete or ready for active
    consideration.
        As stated above, the Federal Acknowledgment Process applies only to
    Native groups within the continental United States, thereby excluding
    Native Hawaiians.

        Question 10. In the question and answer period, Attorney General
    Bennett mentioned that ``nothing in this Act suggests secession''.
    Would you support an explicit statement barring future secession
    efforts?
        Answer. In our view, there is no need for such a statement. Neither
    the U.S. Constitution nor any Federal law provides authority for
    secession from the Union of States.

        Question 11. Similarly, would you support an explicit ban on all
    gaming activities by the new governing entity?
        Answer. The provisions of S. 310 already provide that the Native
    Hawaiian governing entity shall not conduct gaming in the State of
    Hawaii or any other state. In addition, Hawaii is one of only two
    states in the Union (the other is Utah) that criminally prohibit all
    forms of gaming.
                                     ______

         Response to Written Questions Submitted by Hon. Tom Coburn to
                                Mark J. Bennett

        Question 1. Do you believe the State of Hawaii would be a more
    cohesive society after this legislation is enacted?
        Answer. Yes. By providing Native Hawaiians with a sense that some
    measure of justice has been attained, the bill would promote harmony
    between Hawaii's native and non-native populations. Also, non-Native
    Hawaiians living in Hawaii recognize the just and fair nature of
    recognition.

        Question 2. In 1998, the State of Hawaii argued that the ``the
    tribal concept simply has no place in the context of Hawaiian
    history.'' What has changed since that time?
        Answer. That reference has repeatedly been taken out of context. It
    simply meant that Native Hawaiians were never organized in the same
    manner, nor did they possess identical anthropological characteristics,
    as Native American Indian tribes on the Continent. It was never meant
    to suggest that Native Hawaiians are not ``Indian Tribes'' within the
    meaning of the Indian Commerce Clause, U.S. Const., Article I, Section
    8, Clause 3.

        Question 3. Given that this legislation modifies the vote of the
    Hawaiian people in the late 1950s, should the people of Hawaii be given
    an opportunity to vote in a referendum on the new proposal?
        Answer. First, this legislation does not in any way modify the vote
    for Statehood by Hawaii's people in 1959. The vote for statehood was
    not a vote against eventual federal recognition of an entity providing
    limited self-governing authority for Native Hawaiians. Second,
    Congress's power to recognize native peoples is plenary. In any event,
    in order to amend Hawaii's Constitution, Hawaii citizens will need to
    vote, and therefore, if this bill leads eventually to the creation of a
    sovereign entity, and the transfer of assets, that will necessitate a
    change in Hawaii's Constitution, and a vote of its people. And third,
    there is no current provision in Hawaii law for any type of referendum
    on any subject.

        Question 4. If there is no difference between Congress' power to
    regulate ``Indian tribes'' and ``indigenous peoples'' why does this
    legislation treat Native Hawaiians differently from Native Americans by
    segregation of programs and the creation of a new Office of Native
    Hawaiian Affairs?
        Answer. Congress clearly has the power to recognize a Native
    Hawaiian governing entity, like it has the power to recognize Indian
    tribes. That does not logically mean, however, that from the start,
    Native Hawaiians, who do not currently have official recognition, ought
    to be governed by the exact same recognition process as Native
    Americans. Alaska Natives were not treated exactly the same either,
    even though Congress's power to recognize them springs from the same
    authority in the Constitution. It could be that after recognition, and
    through negotiations, Congress could decide that similar structures and
    interrelationships are appropriate, but there is no reason to
    foreordain or require that.

        Question 5. If existing law was modified, and Native Hawaiians were
    allowed to apply for tribal recognition through the established
    process, would it qualify for such status?
        Answer. Current law does not allow Native Hawaiians to apply. If
    Native Hawaiians were allowed to apply, the result would depend upon
    how Congress modified existing law, but it would be fair to expect that
    those modifications would be responsive to any unique circumstances of
    Native Hawaiians, and thus the answer would be ``yes.''
        But Native Hawaiians do satisfy the most relevant existing
    criteria, including: (a) the group has been identified from historical
    times to the present, on a substantially continuous basis, as Indian--
    that is, aboriginal inhabitants; (b) a predominant portion of the
    petitioning group comprises a distinct community and has existed as a
    community from historical times until the present; (c) the group has
    maintained political influence or other authority over its members as
    an autonomous entity from historical times until the present; (d) the
    group has lists of members demonstrating their descent from a tribe
    that existed historically; and (e) most of the members are not members
    of any other acknowledged Indian tribe. To the extent Native Hawaiians
    may meet certain criteria less strongly, that is only because the
    United States's demolition of their sovereignty was more complete and
    unjust.

        Question 6. Do you believe that the Bill of Rights, and the
    essential protections it provides, is up for negotiation for any
    American citizen?
        Answer. No, and this bill does nothing that is contrary to or
    inconsistent with that answer.

        Question 7. How does the recognition of Native Hawaiians impact
    potential claims by other ``indigenous groups,'' such at those in the
    Southwest?
        Answer. It doesn't affect such ``potential'' claims at all. Native
    Hawaiians, like American Indians and Native Alaskans, were the
    aboriginal inhabitants of a geographic area they occupied at the time
    of the first Western contact. Those within the continental United
    States, who also meet that definition, are Indians. Likely the other
    ``indigenous'' groups mentioned do not meet that definition.

        Question 8. Can you discuss with this committee all studies that
    have been completed demonstrating the impact of the new Native Hawaiian
    governing entity, its assumption of all appropriate lands, and any
    other appropriate factors, on the Hawaiian economy?
        Answer. Since there have been no negotiations yet, and no product
    of such negotiations, it is premature to conduct such a study. I note,
    however, that Hawaii's newspapers, banks, and many businesses fully
    support recognition for Native Hawaiians, because it is fair, just, and
    long overdue.

        Question 9. If the State of Hawaii and the new governing entity are
    unable to reach agreement on measures outlined in the legislation,
    please describe how potential conflicts will be settled.
        Answer. The status quo is maintained. There is no mandate for
    agreement.

        Question 10. How do ``indigenous sovereign peoples'' compare to
    Indian tribes, as defined in the U.S. Constitution? If similar, please
    describe how the new Native Hawaiian governing entity will operate in a
    manner consistent with established tribal governments, and how it will
    interact with the Department of Interior.
        Answer. The question is unclear. Congress has the right to
    recognize Native Hawaiians, pursuant to its power under the Indian
    Commerce Clause. The governing entity will, at first, interact with the
    Department of the Interior, as specified in the bill. After
    negotiations, Congress will specify the precise method of interaction.

        Question 11. Do you believe the Native Hawaiian entity should
    receive consideration before the roughly 300 entities currently seeking
    recognition as a tribe before the Department of Interior?
        Answer. Hundreds of tribes on the continent are currently
    recognized. No Native Hawaiian governing entity is. We believe it is
    fair and just that Congress now afford the recognition this bill
    provides. In any event, this bill does not interfere in any manner with
    the process for recognition those other entities are currently
    pursuing.

        Question 12. In the question and answer period, Attorney General
    Bennett mentioned that ``nothing in this Act suggests secession.''
    Would you support an explicit statement barring future secession
    efforts?
        Answer. I would have no objection, although it is not an Act of
    Congress that does and would bar secession--it is the Constitution of
    the United States. No secession of any part of the United States is
    legally possible without an amendment to the United States
    Constitution.

        Question 13. Similarly, would you support an explicit ban on all
    gaming activities by the new governing entity? For example, ``the new
    Native Hawaiian governing entity shall not engage in any form of
    gaming.''
        Answer. The bill already has such a ban, using language suggested
    by the Department of Justice, as the bill explicitly bars using any
    federal law as authority for gambling. However, I would not object to
    the proposed language. I am against any legalized gambling in Hawaii.
                                     ______

         Response to Written Questions Submitted by Hon. Tom Coburn to
                               H. William Burgess

        Question 1. Do you believe the State of Hawaii would be a more
    cohesive society after this legislation is enacted?
        Answer. No. I believe the opposite would be more likely. The Akaka
    bill (S. 310) defines ``Native Hawaiian'' as anyone with at least one
    ancestor indigenous to Hawaii, essentially the same definition the
    Supreme Court in Rice v. Cayetano, 528 U.S. 495, 514-516 (2000) held to
    be a racial classification because it uses ancestry as a proxy for
    race. The bill would give Native Hawaiians political power superior to
    that of all other citizens (i.e., the right to create their own
    separate sovereign government and still retain all their rights as
    citizens of the U.S. and the State of Hawaii).
        Racial distinctions are especially ``odious to a free people,''
    Rice 528 U.S. at 517 where they undermine the democratic institutions
    of a free people by instigating racial partisanship. This was the
    fundamental evil that the Rice Court detected in Hawaii's law: ``using
    racial classifications'' that are ``corruptive of the whole legal
    order'' of democracy because they make ``the law itself . . . the
    instrument for generating'' racial ``prejudice and hostility.'' Rice,
    528 U.S. at 517.
        It ``is altogether antithetical to our system of representative
    democracy'' to create a governmental structure ``solely to effectuate
    the perceived common interests of one racial group'' and to assign
    officials the ``primary obligation . . . to represent only members of
    that group.'' Shaw v. Reno, 509 U.S. 630, 648 (1983). Shaw quoted
    Justice Douglas:
        When racial or religious lines are drawn by the State, the multi-
    racial . . . communities that our Constitution seeks to weld together
    as one become separatist; antagonisms that relate to race . . . rather
    than to political issues are generated; communities seek not the best
    representative but the best racial . . . partisan. Since that system is
    at war with the democratic ideal, it should find no footing here.
        Wright v. Rockefeller, 376 U.S. 52, 67 (1964) (Douglas,
    dissenting).
        In Shaw, the racial partisanship was fostered indirectly by
    gerrymandering legislative districts. By contrast, as in Rice, the
    ``structure'' in the Akaka bill ``is neither subtle nor indirect;'' The
    Akaka bill would specifically sponsor the creation of a new sovereign
    government by ``persons of the defined ancestry and no others.'' Rice,
    528 U.S. at 514.
        To advance ``the perceived common interests of one racial group,''
    Shaw, 509 U.S. at 648, the Akaka bill vests public officials with
    authority to give away public funds and public lands. This cannot
    stand: ``Simple justice requires that public funds, to which all
    taxpayers of all races contribute, not be spent in any fashion which
    encourages, entrenches, subsidizes, or results in racial
    discrimination.'' Lau v. Nichols, 414 U.S. 563, 569 (1974) (quoting
    Senator Humphrey during the floor debate on Title VI of the Civil
    Rights Act of 1964, a provision that is coextensive with the Equal
    Protection Clause, Alexander v. Sandoval, 532 U.S. 275, 280-81 (2001)).
        The government is even forbidden to give money to private parties
    ``if that aid has a significant tendency to facilitate, reinforce and
    support private discrimination.'' Norwood v. Harrison, 413 U.S. 455,
    466 (1973). Norwood instructed the District Court to enjoin state
    subsidies for private schools that advocated the ``private belief that
    segregation is desirable'' and that ``communicated'' racial
    discrimination as ``an essential part of the educational message.'' Id.
    at 469. A fortiori, federal or state agencies, even with the
    acquiescence of their legislatures, cannot institutionalize racial
    classifications that are ``odious to a free people'' and ``corruptive''
    of democracy. Rice, 528 U.S. at 517.

        Question 2. In 1998, the State of Hawaii argued that ``the tribal
    concept simply has no place in the context of Hawaiian history.'' What
    has changed since that time?
        Answer. Amid many changes in our lives since 1998, one thing has
    stayed the same: There is no tribe or governing entity of any kind
    presiding over a separate community of the Native Hawaiian people as
    defined in the Akaka bill (any person anywhere in world who has at
    least one ancestor indigenous to Hawaii). Senator Daniel K. Inouye
    acknowledged this on January 25, 2005 on the floor of the Senate (151
    Congressional Record 450).
        ``Because the Native Hawaiian government is not an Indian tribe,
    the body of Federal Indian law that would otherwise customarily apply
    when the United States extends Federal recognition to an Indian tribal
    group does not apply.''
        ``That is why concerns which are premised on the manner in which
    Federal Indian law provides for the respective governmental authorities
    of the state governments and Indian tribal governments simply don't
    apply in Hawaii.''

        Question 3. Given that this legislation modifies the vote of the
    Hawaiian people in the late 1950s, should the people of Hawaii be given
    an opportunity to vote in a referendum on the new proposal?
        Answer. Yes. The Akaka bill would usurp the power of the people of
    Hawaii to govern the entire State of Hawaii as promised by Congress in
    the 1959 Admission Act. In 1959 Congress proposed, subject to
    ``adoption or rejection'' by the voters of the Territory of Hawaii,
    that Hawaii ``shall be immediately admitted into the Union'' and that
    ``boundaries of the State shall be as prescribed.'' ``The State of
    Hawaii shall consist of all the [major] islands, together with their
    appurtenant reef and territorial waters.'' ``The Constitution of the
    State of Hawaii shall always be republican in form and shall not be
    repugnant to the Constitution of the United States and the principles
    of the Declaration of Independence.''
        The voters decisively accepted: 94.3 percent ``Yes'' for Statehood
    and 94.5 percent ``Yes'' for the State boundaries.
        Yet the Akaka bill would authorize negotiations unlimited in scope
    or duration to break up and giveaway lands, natural resources and other
    assets, governmental power and authority and civil and criminal
    jurisdiction. The avowed purpose of the promoters of the bill is to
    remove vast lands in Hawaii from the jurisdiction of the United States
    Constitution and to create an unprecedented sovereign empire ruled by a
    new hereditary elite and repugnant to the highest aspirations of
    American democracy.
        At the very least, the Akaka bill must be amended to require:

             Prior consent to the process by the voters of Hawaii before
            any ``recognition'' or other provision of the bill takes
            effect; and

             If the electorate approves the process, limit the negotiations
            both in scope and duration, and, if any transfer is to be made
            to the new entity the agreement must include a final global
            settlement of all claims and be subject to ratification by
            referendum of the entire electorate of the State of Hawaii.

        Question 4. If there is no difference between Congress' power to
    regulate ``Indian tribes'' and ``indigenous peoples'' why does this
    legislation treat Native Hawaiians differently from Native Americans by
    segregation of programs and the creation of a new Office of Native
    Hawaiian Affairs?
        Answer. Excellent question. It pinpoints the deceptive sales pitch
    that the Akaka bill would just give Native Hawaiians the same
    recognition as Native Americans. No Native American group has the right
    to be recognized as a tribe merely because its members share Indigenous
    ancestors, as the Akaka bill proposes for Native Hawaiians.
        By giving superior political power to Native Hawaiians based on
    blood alone; and by equating them with Native Americans and Native
    Alaskans, the Akaka bill would put all three groups into the ``race''
    category and would either threaten the continued existence of real
    Indian tribes or erase the Civil Rights movement and the Civil War
    itself from our history.
        For over 20 years, a draft Declaration of Indigenous Rights has
    circulated in the United Nations. The United States and other major
    countries have opposed it because it challenges the current global
    system of states; is ``inconsistent with international law''; ignores
    reality by appearing to require recognition to lands now lawfully owned
    by other citizens; and ``No government can accept the notion of
    creating different classes of citizens.'' In November 2006, a
    subsidiary body of the U.N. General Assembly rejected the draft
    declaration, proposing more time for further study.
        Thus, by enacting the Akaka bill, Congress would brush aside core
    underpinnings of the United States itself both as to the special
    relationship with real Indian tribes; and as to the sacred
    understanding of American citizenship as adherence to common principles
    of equal justice and the rule of law, in contrast to common blood,
    caste, race or ethnicity.

        Question 5. If existing law was modified, and Native Hawaiians were
    allowed to apply for tribal recognition through the established
    process, would it qualify for such status?
        Answer. No. The United States has granted tribal recognition only
    to groups that have a long, continuous history of self-governance in a
    distinct community separate from the non-Indian community. But there
    has never been, even during the years of the Kingdom, any government
    for Native Hawaiians separate from the government of all the people of
    Hawaii.
        Census 2000 counted some 400,000 persons who identified themselves
    as of some degree of Native Hawaiian ancestry. About 60 percent of them
    or about 240,000, live in the State of Hawaii and are spread throughout
    all the census districts of the State of Hawaii. The other 40 percent,
    or about 160,000, live throughout the other 49 states. The Akaka bill
    would recognize these 400,000 people plus everyone anywhere else in the
    world with at least one ancestor indigenous to Hawaii, as a tribe. Such
    widely scattered and disconnected persons would not be eligible for
    recognition under CFR by the DOI or by Congress under the standards set
    by the Supreme Court.
        If blood alone were sufficient for tribal recognition (as the Akaka
    bill proposes for Native Hawaiians), Indian law would change radically.
    Millions of Americans with some degree of Indian ancestry, but not
    currently members of recognized tribes, would be eligible. Some 60
    tribes from all parts of the country were relocated to Oklahoma in the
    1800s. Descendants of each of those tribes would be arguably entitled
    to create their own new governments in the states where they
    originated. Indian tribes and Indian Casinos would surely proliferate.

        Question 6. Do you believe that the Bill of Rights, and the
    essential protections it provides, is up for negotiation for any
    American citizen?
        Answer. Yes, the Akaka bill would put the Bill of Rights of every
    American citizen in Hawaii and in all other states on the table as
    bargaining chips. If this bill should become law, it would be the first
    step in the breakup of the United States. Its premise is that Hawaii
    needs two governments: One in which everyone can vote which must become
    smaller and weaker; The other in which only Native Hawaiians can vote,
    growing more powerful as the other government shrinks away.
        In the negotiation process called for by S. 310, the transfers of
    lands, reefs, territorial waters, power and civil and criminal
    jurisdiction go only one way; and are unlimited in scope or duration.
    The bargaining can and likely will continue slice by slice, year after
    year, until the State of Hawaii is all gone, and 80 percent of Hawaii's
    citizens are put into servitude to the new Congressionally sponsored
    hereditary elite.
        But even then it will not be over, because there are today living
    descendants of the indigenous people of every state. Surely they will
    take notice and demand their own governments.

        Question 7. How does the recognition of Native Hawaiians impact
    potential claims by other ``indigenous groups,'' such at those in the
    Southwest?
        Answer. The impact would be ominous. Today, over 1 million American
    citizens residing in Hawaii are under siege by what can fairly be
    called an evil empire dedicated to Native Hawaiian Supremacy. A
    remarkable book has revealed that America's largest charitable trust,
    Kamehameha Schools Bishop Estate (KSBE), has used its $8.5 Billion in
    assets and vast land holdings to so corrupt the political process in
    the State of Hawaii that the legislative, executive and judiciary
    powers have been, and still seem to be, concentrated in the hands of
    those who facilitated a ``World Record for Breaches of Trust'' by
    trustees and others of high position, without surcharge or
    accountability. Broken Trust: Greed, Mismanagement & Political
    Manipulation at America's Largest Charitable Trust, King and Roth,
    2006. KSBE openly flaunts its association with others in supporting
    passage of the Akaka bill. KSBE and its Alumni Associations of Northern
    and Southern California are members of CNHA, Council for Native
    Hawaiian Advancement, http://www.hawaiiancouncil.org/members.html.
        The nativehawaiians.com website, lists the co-conspirators: CNHA,
    the Kamehameha Alumni Association, the prominent entities [many under
    KSBE's hegemony] that support the Akaka bill; and a number of
    questionable groups such as the National Council of La Raza, the
    organization that seeks to ``liberate'' the Southwest. http://
    www.nativehawaiians.com/listsupport.html.
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            * Copies of individual letters have been retained in Committee
            files.
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