[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\
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    \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 
[email protected].
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    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. *
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    * 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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