[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]




                     H.R. 2314, ``NATIVE HAWAIIAN
                       GOVERNMENT REORGANIZATION
                             ACT OF 2009''

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

                          LEGISLATIVE HEARING

                               before the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                        Thursday, June 11, 2009

                               __________

                           Serial No. 111-23

                               __________

       Printed for the use of the Committee on Natural Resources



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                               index.html
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                     COMMITTEE ON NATURAL RESOURCES

              NICK J. RAHALL, II, West Virginia, Chairman
          DOC HASTINGS, Washington, Ranking Republican Member

Dale E. Kildee, Michigan             Don Young, Alaska
Eni F.H. Faleomavaega, American      Elton Gallegly, California
    Samoa                            John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii             Jeff Flake, Arizona
Frank Pallone, Jr., New Jersey       Henry E. Brown, Jr., South 
Grace F. Napolitano, California          Carolina
Rush D. Holt, New Jersey             Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Louie Gohmert, Texas
Madeleine Z. Bordallo, Guam          Rob Bishop, Utah
Jim Costa, California                Bill Shuster, Pennsylvania
Dan Boren, Oklahoma                  Doug Lamborn, Colorado
Gregorio Sablan, Northern Marianas   Adrian Smith, Nebraska
Martin T. Heinrich, New Mexico       Robert J. Wittman, Virginia
George Miller, California            Paul C. Broun, Georgia
Edward J. Markey, Massachusetts      John Fleming, Louisiana
Peter A. DeFazio, Oregon             Mike Coffman, Colorado
Maurice D. Hinchey, New York         Jason Chaffetz, Utah
Donna M. Christensen, Virgin         Cynthia M. Lummis, Wyoming
    Islands                          Tom McClintock, California
Diana DeGette, Colorado              Bill Cassidy, Louisiana
Ron Kind, Wisconsin
Lois Capps, California
Jay Inslee, Washington
Joe Baca, California
Stephanie Herseth Sandlin, South 
    Dakota
John P. Sarbanes, Maryland
Carol Shea-Porter, New Hampshire
Niki Tsongas, Massachusetts
Frank Kratovil, Jr., Maryland
Pedro R. Pierluisi, Puerto Rico

                     James H. Zoia, Chief of Staff
                       Rick Healy, Chief Counsel
                 Todd Young, Republican Chief of Staff
                 Lisa Pittman, Republican Chief Counsel
                                 ------                                















                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Thursday, June 11, 2009..........................     1

Statement of Members:
    Abercrombie, Hon. Neil, a Representative in Congress from the 
      State of Hawaii............................................     3
    Bordallo, Hon. Madeleine Z., a Delegate in Congress from Guam     4
        Prepared statement of....................................     5
    Faleomavaega, Hon. Eni F.H., a Delegate in Congress from 
      American Samoa.............................................     6
    Hastings, Hon. Doc, a Representative in Congress from the 
      State of Washington........................................     2
    Rahall, Hon. Nick J., II, a Representative in Congress from 
      the State of West Virginia.................................     1

Statement of Witnesses:
    Apoliona, Hon. Haunani, Chairperson, Board of Trustees, 
      Office of Hawaiian Affairs, Honolulu, Hawaii...............    24
        Prepared statement of....................................    27
    Bartolomucci, H. Christopher, Partner, Hogan & Hartson 
      L.L.P., Washington, D.C....................................    55
        Prepared statement of....................................    57
    Heriot, Hon. Gail, Commissioner, U.S. Commission on Civil 
      Rights, San Diego, California..............................    32
        Prepared statement of....................................    34
        Supplemental testimony submitted for the record..........    39
    Hirono, Hon. Mazie K., a U.S. Representative in Congress from 
      the State of Hawaii........................................     8
        Prepared statement of....................................    10
    Kane, Hon. Micah A., Chairman, Hawaiian Homes Commission, 
      Kapolei, Hawaii............................................    22
        Prepared statement of....................................    23
    Yaki, Michael J., Commissioner, U.S. Commission on Civil 
      Rights, Sausalito, California..............................    44
        Prepared statement of....................................    46
        Dissenting Statement of Commissioner Michael J. Yaki to 
          The Native Hawaiian Government Reorganization Act of 
          2005: A Briefing Before The United States Commission on 
          Civil Rights Held in Washington, D.C., January 20, 2006    50

Additional materials supplied:
    Bennett, Hon. Mark J., Attorney General, State of Hawaii, 
      Statement submitted for the record.........................    94
    Burgess, H. William, Aloha for All, Statement submitted for 
      the record.................................................    97
    Conklin, Kenneth R., Ph.D., Kane'ohe, Hawaii, Statement 
      submitted for the record...................................   101
    Landow, Kai, Vice Consul, Hawaiian Embassy, Germantown, New 
      York, Statement submitted for the record...................   103

 
    LEGISLATIVE HEARING ON H.R. 2314, ``NATIVE HAWAIIAN GOVERNMENT 
                     REORGANIZATION ACT OF 2009.''

                              ----------                              


                        Thursday, June 11, 2009

                     U.S. House of Representatives

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Committee met, pursuant to call, at 10:04 a.m. in Room 
1324, Longworth House Office Building, Hon. Nick J. Rahall, 
[Chairman of the Committee] presiding.
    Present: Representatives Rahall, Hastings, Young, Kildee, 
Faleomavaega, Abercrombie, Napolitano, Bordallo, Wittman, 
Fleming, Coffman, and Lummis.

STATEMENT OF THE HONORABLE NICK J. RAHALL, II, A REPRESENTATIVE 
          IN CONGRESS FROM THE STATE OF WEST VIRGINIA

    The Chairman. The Committee on Natural Resources will come 
to order. We are meeting today to conduct a hearing on H.R. 
2314, the Native Hawaiian Government Reorganization Act of 2009 
introduced by our colleague from Hawaii, Congressman Neil 
Abercrombie. This is not the first time we have seen this 
legislation. It has been passed by the House over and over 
again, and it pains me that our efforts to establish a process 
to re-recognize the Native Hawaiian government have thus far 
been unsuccessful.
    Native Hawaiians have a long history of a strong and 
vibrant government and culture. It is a dark chapter in United 
States history that despite several treaties with the Kingdom 
of Hawaii, the United States military actively participated in 
the overthrow of the Native Hawaiian government in 1893. 
Nevertheless, Native Hawaiians have endured, and they have kept 
their traditions, their cultural identify and community alive 
and well.
    We have with us this morning several Native Hawaiians and 
other individuals from Hawaii who have come here to give 
testimony of great importance. I would also like to welcome our 
dear colleague from Hawaii, Mazie Hirono, along with a good 
friend, Mr. Abercrombie, who is a valued member of this Natural 
Resources Committee. Both have worked so hard for the rights 
and the recognition of Native Hawaiians. I just cannot say 
enough about both of these individual's leadership.
    In closing, I can assure you that the Committee will 
continue to press forward with the re-establishment of a 
government-to-government relationship with the Native Hawaiians 
and reaffirm their indigenous sovereign rights. With that, I 
recognize the Ranking Minority Member, Mr. Hastings.

 STATEMENT OF DOC HASTINGS, A REPRESENTATIVE IN CONGRESS FROM 
                    THE STATE OF WASHINGTON

    Mr. Hastings. Thank you very much, Mr. Chairman, and I want 
to thank you also for scheduling this hearing on H.R. 2314, 
which as you mentioned is sponsored by our good friend, Mr. 
Abercrombie. Mr. Chairman, if effort and persistence were all 
that were necessary to enact a bill, this bill would have 
become law the first year that Mr. Abercrombie sponsored it. 
Because of my high regard for him and the bipartisan approach 
that he took in pursuing enactment of this bill, it really is 
with a sense of regret that I find myself in opposition to this 
bill.
    The House debated identical legislation in the 110th 
Congress in Committee and on the Floor subsequent to which the 
House did pass that bill. At that time, I was a member of the 
Rules Committee, and I managed the rule for the consideration 
of this bill for the Republicans. As in the last Congress, I am 
opposed to enacting this bill for the same reasons that I 
described on the Floor then.
    No new circumstantial or legal evidence has come to light 
to change my opinion. If anything, the latest nine to nothing 
Supreme Court ruling on Hawaii v. Office of Hawaiian Affairs 
decided on March 31 of this year casts a larger shadow than 
before on the doubtful proposition that Congress 
constitutionally can and should extend a recognition to a 
governing entity for Native Hawaiians. It bears noting that the 
Bush Administration threatened to veto that bill.
    Though President Obama is not bound by this, the previous 
administration's position largely rested on constitutional 
concerns raised by the Department of Justice, constitutional 
concerns with granting recognition to an entity that is 
effectively based on race.
    Unfortunately, because no one from the Department of 
Justice and Interior and the White House are here today, we 
really have no idea how the President came to the conclusion 
that this bill does not cross a constitutional boundary 
separating recognition of an Indian tribe from recognition of 
race-based government prohibited under the 14th Amendment.
    In 2006, the Department of Justice sent letters to the 
Senate expressing deep concern that this legislation, ``divide 
people by their race,'' and that the Supreme Court and lower 
Federal Courts have been invalidating certain state laws 
providing race-based qualifications for certain state programs. 
It would have been helpful to have someone from the Justice 
Department present today to expand on these concerns.
    I recognize this is a different administration, but it 
would have been helpful. Their absence only makes me wonder if 
the White House does not want the Justice Department's prior 
legal analysis to trump the President's political support for 
Native American recognition. Along these lines, the Bush 
Administration's Office of Management and Budget issued a 
strongly worded veto threat saying the bill would, ``grant 
broad powers to a racially defined group of Native Hawaiians to 
include all living descendants of the original Polynesian 
inhabitants of what is now modern-day Hawaii.''
    It went on to note that members of this class, ``need not 
have geographic, political or culture connections to Hawaii, 
much less some discrete Native Hawaiian community.'' Finally, 
the U.S. Civil Rights Commission represented here today at the 
second panel objects to recognizing the Native American 
governing entity, so I will look forward to hearing testimony 
from them and from other witnesses, and with that, Mr. 
Chairman, I yield back my time.
    The Chairman. The gentleman from Hawaii, Mr. Abercrombie.

  STATEMENT OF NEIL ABERCROMBIE, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF HAWAII

    Mr. Abercrombie. Yes. Thank you very much, Mr. Chairman. 
Mr. Chairman and Mr. Hastings, members of the Committee, I am 
grateful that the Committee is holding the hearing today on the 
Native Hawaiian Government Reorganization Act of 2009. By 
coincidence, it is especially fitting that the hearing is today 
as Hawaii is celebrating King Kamehameha Day. It is a public 
holiday honoring the king who united the Hawaiian Islands and 
began the monarchy that reigned over the Hawaiian Islands.
    All over the State, there will be hula festivals, floral 
parades, many local festivities honoring the king. Thus, it 
seems right on this day that we begin the Congressional process 
that all Native Hawaiians be recognized as indigenous people of 
Hawaii. The irony here, Mr. Chairman, in the light of Mr. 
Hastings remarks is that this, in fact, unites everyone in 
Hawaii regardless of their racial extraction to the degree or 
extent that is at issue at all, and I believe it is not.
    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, one that exists in numerous instances throughout 
the nation. On this day 114 years ago, the monarchy of the 
Kingdom of Hawaii was overthrown by agents of the United States 
government. This injustice created wounds and issues that have 
never been healed or resolved.
    Fourteen years ago, the United States government took a 
step toward reconciling this part of the history by passing a 
resolution which acknowledged the overthrow of the Kingdom of 
Hawaii and offered an apology to Native Hawaiians. The Native 
Hawaiian Government Reorganization Act would take another step 
in the reconciliation process by providing Native Hawaiians 
with the same right of self-government and self-determination 
that are afforded to other indigenous people on the continent 
of North America.
    Since Hawaii was annexed as a territory, the United States 
has treated Native Hawaiians in a manner similar to that of 
American Indians and Alaskan Natives. This bill would formalize 
that relationship and establish parity in Federal policies 
toward all of our indigenous people. This bill would also 
provide a structured process to address the longstanding issues 
resulting from the overthrow of the Kingdom 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 issues are discussed. The bill provides a 
structured process to negotiate and resolve these issues with 
Federal and state governments and will alleviate a growing 
mistrust, misunderstanding, anger and frustration about these 
matters. Mr. Chairman, I hesitate and will not at this time 
give a lecture on land tenure issues in Hawaii that extend back 
to the kingdom.
    I can assure you that I am well aware of them and that as a 
result of this history that I have so briefly outlined here, 
the bill is before us. We believe it will resolve all these 
issues and resolve it in such a way as to have the overwhelming 
support of virtually everybody in Hawaii. This measure is 
supported by Hawaii's Governor, Linda Lingle. I was going to 
say a Republican, but I hesitate to do that because we have 
never had this as a majority/minority or a party issue in 
Hawaii--never.
    As Mr. Hastings acknowledged, it has never been addressed 
that way in the Congress, so I want to emphasize at this point 
that the Governor, Hawaii's Congressional Delegation, and the 
State Legislature are unanimously in support of the bill. The 
bill is also supported by a number of organizations in Hawaii 
and nationally is supported by organizations who have an 
interest in native issues and indigenous people issues. They 
have passed resolutions in support of enacting this bill which, 
of course, I will make available to the Committee.
    At this point, recognizing that we have passed this bill in 
previous Congresses under control of both Democrats and 
Republicans, I ask support of this measure and to advance the 
reconciliation process for one of the nation's indigenous 
people.
    I do want to thank you, Mr. Chairman and Mr. Hastings, for 
giving us the opportunity to recognize on our first panel Mazie 
Hirono, my colleague from Hawaii, and members of the Office of 
Hawaiian Affairs, which was constituted as a result of 
legislative activity in which I was involved in the Hawaii 
State Legislature. We thought it was going to be the definitive 
way of handling some of the issues at stake in the bill today.
    The Chair is here, and members of the OHA board are here as 
well, as well as friends of Hawaii, and I am pleased to have 
this opportunity to greet them and to ask for your 
consideration today. Thank you, Mr. Chairman.
    The Chairman. Thank you, Neil. Madeleine, Eni, do either of 
you wish recognition? I am sorry. Anybody on the Republican 
side wish recognition? No?
    Ms. Bordallo. Mr. Chairman, I would like to make a few 
statements before we----
    The Chairman. The gentlelady from Guam is recognized.

STATEMENT OF MADELEINE Z. BORDALLO, A DELEGATE IN CONGRESS FROM 
                              GUAM

    Ms. Bordallo. I stand in solidarity with our colleagues 
from Hawaii in supporting H.R. 2314 and am a close sponsor, and 
I also join you, Mr. Chairman, in extending a warm aloha and 
welcome to our colleague from the 2nd District, Ms. Hirono, and 
to all those that are here this morning for this important 
hearing. We know today's hearing marks continued work on this 
legislation since the House first passed it by voice vote as 
H.R. 4904 in the 106th Congress.
    Trustees and representatives of the Office of Hawaiian 
Affairs have visited my office to discuss this matter on more 
than one occasion. As a Member of Congress representing a non-
self-governing territory that is home to an indigenous people, 
the Chamorros of Guam, I come to this discussion with an added 
appreciation for and a sensitivity to the inherent rights of 
the indigenous peoples.
    Native Hawaiians continue to engage in traditional cultural 
practices spanning all aspects of daily life and industry 
including traditional agricultural methods, fishing and 
substance practices. It is important that Congress recognize, 
protect and respect these indigenous practices. The bill before 
us today, Mr. Chairman, would authorize a long over-due process 
of Federal reorganization for the Native Hawaiian government 
entity, and our acting favorably on it would be entirely 
consistent with the responsibilities and the principles that 
this Committee is called to uphold.
    I, therefore, strongly support the efforts to bring just 
and due Federal recognition for the Native Hawaiians in 
recognizing the steadfast work of the Hawaiian delegation, 
especially my colleagues, Mr. Neil Abercrombie and Ms. Hirono, 
as well as Senators Akaka and Inouye for developing a good bill 
that outlines a process for appropriate Federal recognition for 
the Native Hawaiian people.
    As we continue this discussion, it is important for all of 
us to remember and understand that the Kingdom of Hawaii was 
overthrown with the involvement of the United States Minister 
and the U.S. Military. Congress recognized this injustice 
through the passage of the Apology Resolution in 1993, and now 
it is time for us to act to address the consequences of that 
moment in history by advancing H.R. 2314 and again, Mr. 
Chairman, I thank you for the opportunity to make this 
statement.
    This bill has my support, and I hope we can move it to the 
Floor quickly after this hearing today.
    [The prepared statement of Ms. Bordallo follows:]

           Statement of The Honorable Madeleine Z. Bordallo, 
                    a Delegate in Congress from Guam

    Mr. Chairman: I have brief remarks to offer. I stand in solidarity 
with our colleagues from Hawaii in supporting, H.R. 2314, and am a 
cosponsor.
    I also join you, Mr. Chairman, in extending a warm Aloha and 
welcome to our colleague from the 2nd District, Ms. Hirono, and to all 
those who are here this morning for this important hearing.
    We know today's hearing marks continued work on this legislation 
since the House first passed it by voice vote as H.R. 4904 in the 106th 
Congress.
    Trustees and representatives of the Office of Hawaiian Affairs have 
visited my office to discuss this matter on more than one occasion.
    As a Member of Congress representing a non-self governing territory 
that is home to an indigenous people, the Chamorros of Guam, I come to 
this discussion with an added appreciation for and sensitivity to the 
inherent rights of indigenous peoples.
    Native Hawaiians continue to engage in traditional cultural 
practices spanning all aspects of daily life and industry, including 
traditional agriculture methods, fishing and subsistence practices. It 
is important that Congress recognize, protect, and respect these 
indigenous practices.
    The bill before us today would authorize a long overdue process of 
federal recognition for the Native Hawaiian governing entity, and our 
acting favorably on it would be entirely consistent with the 
responsibilities and principles this Committee is called to uphold.
    I, therefore, strongly support the efforts to bring just and due 
federal recognition for Native Hawaiians and recognize the steadfast 
work of the Hawaiian Delegation, especially Mr. Abercrombie, and Ms. 
Hirono, as well as Senators Akaka and Inouye, for developing a good 
bill that outlines a process for appropriate federal recognition for 
the Native Hawaiian people.
    As we continue this discussion, it is important for all of us to 
remember and understand that the Kingdom of Hawaii was overthrown with 
the involvement of the United States Minister and the U.S. military. 
Congress recognized this injustice through the passage of the Apology 
Resolution in 1993, and now it is time to for us to act to address the 
consequences of that moment in history by advancing H.R. 2314.
    Again, this bill has my support, and I hope we can move it to the 
floor quickly after this hearing today.
                                 ______
                                 
    The Chairman. The Gentleman from American Samoa, Eni 
Faleomavaega.

STATEMENT OF ENI F.H. FALEOMAVAEGA, A DELEGATE IN CONGRESS FROM 
                         AMERICAN SAMOA

    Mr. Faleomavaega. Thank you, Mr. Chairman. I would like to 
ask unanimous consent that my statement be made part of the 
record?
    The Chairman. Without objection.
    Mr. Faleomavaega. And I do want to again personally welcome 
our colleague, Ms. Hirono, from the great State of Hawaii for 
her presence and to hear from her as well as Ms. Haunani 
Apoliona, the Chairwoman of the Office of Hawaiian Affairs with 
us and members of the Board of OHA.
    Mr. Chairman, I had a statement. It was about 100 pages 
that I was going to share with the members of the Committee 
this morning, but in the essence of time, I am going to be 
somewhat brief on the matter. I do want to thank our 
distinguished Ranking Member, Mr. Hastings, for his presence 
and realizing that we may not necessarily agree on the issues 
of the bill that is now before this Committee.
    While it is true that there is no presence of the 
Administration to testify before the Committee, I am certain 
that in the coming weeks, in the near future that we will 
definitely receive an official position from the Administration 
rather than from the Department of the Interior or even from 
the White House. It is no secret, Mr. Chairman, that the Bush 
Administration for some eight years has always been against 
supporting this bill based on some of the Court cases that have 
come before the Supreme Court as it relates to the rights of 
Native Hawaiians.
    It is interesting that we can legalize an issue and say 
that that is the correct way to move and to say that it was a 
legal decision that was made so, therefore, it is true. I think 
we only need to think of the fact that one of the Supreme Court 
decisions called Plessy v. Ferguson where the doctrine of equal 
but separate clause came into being.
    For many, many years, our whole country was following that 
Supreme Court decision saying separate but equal, meaning that 
different races in our community throughout the country and the 
states were able to practice this ``equal but separate'' 
provision where blacks had to sit at the back of the bus; they 
had to eat in separate restaurants. The bottom line, Mr. 
Chairman, it was racism at its best, and it was not until 1954 
that another Supreme Court decision came about.
    It was Brown v. Board of Education, and that decision 
overturned the entire doctrine but separate dividing the races 
or dividing the peoples in our great country to the extent now 
that we have the Civil Rights Act, the Voting Rights Act where 
African Americans finally after a hundred some years have come 
to realize their constitutional rights with the presumptive 
belief most of us to think that the Constitution is blind.
    It doesn't give any preference to any certain class, race 
or people but that it should be equal under the law. I want 
just to note I suppose because I have cultural links the Native 
Hawaiian people, Mr. Chairman, I for one not only treasure this 
understanding, and I call them my Native Hawaiian cousins 
because they are related to me ethnically by heritage, by 
legacy and our history. I just wanted to note as a little 
matter of history, Mr. Chairman, some 2000 years B.C. 
Polynesians settled on these Hawaiian Islands.
    Some came from Tahiti. Some came from Samoa. There were 
other Polynesian groups that came and settled on these islands. 
At the time of Captain Cook, there were some 300,000 Native 
Hawaiians living there. Interestingly enough, it wasn't until 
about 2,000 years later that finally, as my colleague, from 
Hawaii has stated earlier that this great warrior king by the 
name of Kamehameha for the first time united the Hawaiian 
Islands with the warriors, some 30,000 warriors.
    Can you just picture now, Mr. Chairman, if you can just 
kind of picture, imagine what the Hawaiian Islands look like, 
and from the big Island of Hawaii, this warrior king with 
30,000 warriors and some 900 war canoes started a task which 
took him almost 10 years to finally unite all of the Hawaiian 
Islands in one rule. From King Kamehameha, there was an 
organized duly recognized sovereign nation for some 100 years 
before the illegal and unlawful overthrow of Queen 
Liliuokalani's kingdom in the late 1890s.
    I can go through that whole rendition of the history, Mr. 
Chairman, but I just wanted to share that this is not the 
question of race. I know that critics and my colleagues on the 
other side of the aisle have always said that they don't like 
this bill because it is race-based. It gives special preference 
for Native Hawaiians.
    I think we need to understand with a clear perspective that 
Native Hawaiians are the only other indigenous native peoples 
under the administration of this great nation very similar, in 
fact exactly the same, as the American Indians as well as the 
Native Alaskans. I think all we are trying to do is to complete 
the circle to the extent that the Native Hawaiians ought to be 
given the same treatment as we give Native Alaskans and the 
American Indians, and I don't see what is so complicated by 
this.
    This suggests well, this is racial preference. If it is, 
then why are we giving racial preferences in countless numbers 
of Congressional enactments and laws as well as Supreme Court 
decision recognizing the special relationship, the trust 
responsibility that Congress has under the Constitution. I wish 
my good friend from Michigan was here because the first thing 
he will do is hand out the Constitution to our colleagues 
reminding our colleagues about the important and special 
relationship existing between the Congress and Native American 
tribes.
    What we are trying to fulfill here, Mr. Chairman, with this 
legislation simply is going to try to complete the cycle of 
allowing Native Hawaiians the same privileges, same 
opportunities that have been given this right to establish a 
government within our national government just as we have done 
for the Navajo Nation or some 562 other Native American tribes 
that have been officially recognized by the Congress.
    I wanted to share with my colleagues, Mr. Chairman, that I 
think at the time that our friends in Europe were trying to 
determine if the planet was round or was flat and for fear that 
they are going to fall over the edge of the planet they had to 
stay close to the mountains to make sure that they don't get 
off the edge, but I wanted to share with my colleagues this 
photo here.
    Mr. Chairman, it is a picture of what my Hawaiian cousins 
built in the 1970s. It is a replica of the Polynesian voyaging 
double-hull canoe that was built for which the Native Hawaiian 
community and their leaders set sail from Hawaii to Tahiti to 
the Cook Islands, the Cook Islands to New Zealand to Tonga to 
Samoa, my own islands, back to Tahiti then to Hawaii, and it 
was my privilege to serve as a crew member of this Polynesian 
voyage in canoe, Mr. Chairman, for which took us about 27 days 
to sail from Tahiti to Hawaii.
    The point I wanted to make here, Mr. Chairman, there are 
some 400,000 Native Hawaiians living right now, the largest 
indigenous inhabitants living under the sovereignty of our 
country are Native Hawaiians, and I think it would be a 
travesty in justice and fairness to our whole system if this 
bill is not passed. They are not asking, they are not begging 
for anything. They just want to be treated fairly as other 
indigenous native peoples.
    I think this is what this bill is about, and I sincerely 
hope that in the course of our hearings in the coming weeks 
that my good friend from Washington might have a change of 
heart in understanding and appreciating what the Native 
Hawaiians have had to endure for the last 100 years, and again 
I commend and thank my good friend from Hawaii, Congressman 
Abercrombie.
    I associate myself with all that he has said about the need 
for this legislation to again pass this Committee, pass by the 
House, and hopefully we will get it to the White House and have 
President Obama sign off on it. Thank you, Mr. Chairman. I 
yield back.
    The Chairman. Thank you, Eni. Mazie, we welcome you to the 
Committee, and again thank you so much for your leadership on 
this issue. You may proceed as you desire.

 STATEMENT OF MAZIE K. HIRONO, U.S. CONGRESSWOMAN, HAWAII 2ND 
                            DISTRICT

    Ms. Hirono. Thank you, Mr. Chairman and Ranking Member 
Hastings and all of the members of the Committee. Aloha. Thank 
you for this opportunity to testify on H.R. 2314. I 
particularly appreciate the comments made by my colleagues, 
Abercrombie of course, Bordallo and Faleomavaega as well as 
your comments, Mr. Chairman, because I feel as though I can 
just rest on your comments. However, I am here, so I am going 
to proceed with my testimony.
    I begin, of course, by wishing all of you a Happy 
Kamehameha Day. In Hawaii today is a holiday. We celebrated 
Kamehameha Day here in Washington, D.C., on Sunday where more 
than 400 people came to drop leis around the Kamehameha statue 
in Emancipation Hall. King Kamehameha I was the king who united 
the Hawaiian Kingdom and established the Kingdom of Hawaii in 
1810, and it is for his people, the Native Hawaiians, that H.R. 
2314 seeks to end years of injustice and provide a path to 
self-determination.
    The kingdom of Hawaii was overthrown in 1893. Hawaii's last 
monarch queen, Liliuokalani, was deposed by an armed group of 
businessmen and sugar planters who were American by birth or 
heritage, but they were aided and abetted by U.S. Troops. The 
Queen agreed to relinquish her throne under protest to avoid 
bloodshed. She believed the United States with which Hawaii had 
diplomatic relations, not to mention treaties, would restore 
her to the throne.
    As we now know, despite the objections of President Grover 
Cleveland, the injustice of the overthrow of an independent 
nation was allowed to stand, and the Republic of Hawaii was 
established. In 1898, the United States annexed Hawaii. Prior 
to annexation, a petition drive organized by Native Hawaiians 
secured thousands of signatures, almost two-thirds of the 
Native Hawaiian population, opposing annexation.
    These historical documents are now a part of our national 
archives. Native Hawaiian culture was under siege. The Republic 
of Hawaii prohibited the use of the Hawaiian language in 
schools. Everyday use of the Hawaiian language diminished 
greatly, and it was in danger of dying out. Hawaiians were 
pressured to assimilate and much of their vibrant culture was 
lost. Hawaii became a state in 1959. Beginning in the late 
1960s and early 1970s, the Native Hawaiian Cultural Rediscovery 
began in music, hula, language and other aspects of the 
culture.
    People of all ethnicities in Hawaii respect and honor the 
Native Hawaiian culture. We are not threatened by the idea of 
self-determination by Native Hawaiians. In 1978, Hawaii 
convened a constitutional convention that was designed in part 
to right some of the wrongs done to Native Hawaiians by 
proposing changes to our state constitution. The constitutional 
convention created the Office of Hawaiian Affairs, or OHA, so 
that Native Hawaiians would have some ability to manage their 
own affairs on behalf of Native Hawaiians.
    The people of Hawaii ratified the creation of OHA in our 
state constitution and voted to allow the trustees of OHA to be 
elected solely by Native Hawaiians. The provisions relating to 
the election of OHA trustees was challenged in Rice v. Cayetano 
all the way to the U.S. Supreme Court, which heard the case in 
1999. I attended the hearing at the Supreme Court while I was 
serving as Hawaii's lieutenant Governor, and the Court ruled 
that the State of Hawaii could not limit the right to vote in a 
state election to Native Hawaiians.
    This decision does not stand for the proposition that 
Native Hawaiians are non-indigenous people. I also attended the 
more recent hearing involving OHA and again that hearing before 
our United States Supreme Court raised other issues. The issue 
was not whether Native Hawaiians are indigenous people. I was 
in the Hawaii State Legislature when we approved creation of 
Hawaiian language emergent schools recognizing that language is 
an integral part of a culture and people.
    Public Hawaiian language preschools, called Punana Leo, 
were started in 1984. We now have Hawaiian language elementary, 
middle and high schools in Hawaii, and a new generation of 
fluent Hawaiian language speakers are helping to keep this 
beautiful and culturally important language alive. Other native 
peoples are looking to Hawaii as a model as a means of 
preserving and perpetuating their native languages. I believe 
how we treat our native indigenous people reflects our values 
and who we are as a country.
    Clearly, there is much in the history of our interactions 
with the native peoples of what is now the United States that 
makes us less than proud, but one of the great attributes of 
America has always been our ability to look objectively at our 
history, to learn from it, and when possible to make amends. 
H.R. 2314 is supported by the great majority of Hawaii's 
residents, by its Republican Governor, by our State Legislature 
and by dozens of organizations.
    In 2007, the U.S. House of Representatives passed H.R. 505, 
an earlier version of this bill by a vote of 261 to 153. This 
was the second time that the House had recognized the need for 
Native Hawaiian self-determination. The State of Hawaii motto, 
which was also the motto of the Kingdom of Hawaii is Ua mau ke 
ea o ka aina I ka pono, which translates to the life of the 
land is perpetuated in righteousness.
    Native Hawaiians, like American Indians and Alaska Natives, 
have an inherent sovereignty based on their status as 
indigenous native people. I urge your support of H.R. 2314. 
Mahalo nui loa, aloha, and I would be happy to respond to any 
questions you may have.
    The Chairman. Thank you, Mazie. Ranking member? Members on 
my left or right?
    [The prepared statement of Ms. Hirono follows:]

    Statement of The Honorable Mazie K. Hirono, a Representative in 
                   Congress from the State of Hawaii

    Mr. Chairman, Ranking Member Hastings, and members of the 
Committee:
    Thank you for this opportunity to testify today on H.R. 2314, the 
Native Hawaiian Government Reorganization Act, which provides a measure 
of justice for the indigenous, native people of the Hawaiian islands.
    I would like to begin by wishing all of you a happy Kamehameha Day. 
Today is a state holiday in Hawaii, where we celebrate King Kamehameha 
I, who united all of the Hawaiian islands and established the Kingdom 
of Hawaii in 1810. It is for his people, the Native Hawaiians, that 
H.R. 2314 seeks to end years of injustice and provide a path to self-
determination.
    The Kingdom of Hawaii was overthrown in 1893. Hawaii's last 
monarch, Queen Liliuokalani, was deposed by an armed group of 
businessmen and sugar planters, who were American by birth or heritage, 
with the support of U.S. troops. The Queen agreed to relinquish her 
throne, under protest, to avoid bloodshed. She believed the United 
States, with which Hawaii had diplomatic relations, would restore her 
to the throne. It is important to note that the sovereign nation of 
Hawaii had treaties with other nations, including the United States, 
including: Great Britain, France, Germany, Italy, Japan, and Russia. As 
we now know, despite the objections of U.S. President Grover Cleveland, 
the injustice of the overthrow of an independent nation was allowed to 
stand, and the Republic of Hawaii was established.
    In 1898, the United States annexed Hawaii. Prior to annexation, a 
petition drive organized by Native Hawaiians secured signatures of 
almost two-thirds of the Native Hawaiian population opposing 
annexation. The total was 29,000 signatures out of an estimated Native 
Hawaiian population of 40,000. These historical documents are now a 
part of our National Archives.
    Native Hawaiian culture was under siege. The Republic of Hawaii 
prohibited the use of the Hawaiian language in schools. Everyday use of 
the Hawaiian language diminished greatly, and it was in danger of dying 
out. Hula dancing, which had been suppressed by the missionaries and 
then restored by King Kalaukaua, who preceded Queen Liluokalani, 
survived but did not flourish. Hawaiians were pressured to assimilate 
and much of their vibrant culture was lost.
    In 1903, Prince Jonah Kuhio Kalanianaole was elected to serve as 
Hawaii's delegate to Congress. One of his most notable achievements was 
the passage of the Hawaiian Homes Commission Act of 1920, which set 
aside some 200,000 acres of land for Native Hawaiians. The reason for 
the legislation was the landless status of so many Native Hawaiians, 
who were displaced by newcomers to the islands and became the most 
disadvantaged population in their native land. Congress passed the 
Hawaiian Homes Commission Act, which is still in force, in recognition 
of its trust responsibility toward Native Hawaiians.
    Hawaii became a state in 1959. Beginning in the late 1960s and 
early 1970s, a Native Hawaiian cultural rediscovery began in music, 
hula, language, and other aspects of the culture. This cultural 
renaissance was inspired by hula masters or kumu hula, who helped bring 
back ancient and traditional hula; musicians and vocalists, who brought 
back traditional music and sang in the Hawaiian language; and political 
leaders, who sought to protect Hawaii's sacred places and natural 
beauty.
    This flourishing of Hawaiian culture was not met with fear in 
Hawaii, but with joy and celebration and an increased connection with 
each other. People of all ethnicities in Hawaii respect and honor the 
Native Hawaiian culture. We are not threatened by the idea of self-
determination by Native Hawaiians.
    In 1978, Hawaii convened a constitutional convention that was 
designed, in part, to right some of the wrongs done to Native Hawaiians 
by proposing changes to the state constitution. The constitutional 
convention created the Office of Hawaiian Affairs or OHA so that Native 
Hawaiians would have some ability to manage their own affairs on behalf 
of Native Hawaiians. The people of Hawaii ratified the creation of OHA 
in the state constitution and voted to allow the trustees of OHA to be 
elected solely by Native Hawaiians.
    The provision relating to the election of OHA trustees was 
challenged in Rice v. Cayetano all the way to the U.S. Supreme Court, 
which heard the case in 1999. I attended the hearing at the Supreme 
Court while I was serving as Hawaii's Lieutenant Governor. The Court 
ruled that the State of Hawaii could not limit the right to vote in a 
state election to Native Hawaiians. This decision does not stand for 
the proposition that Native Hawaiians are non-indigenous people.
    The 1978 Constitutional Convention, or ConCon as it is known in 
Hawaii, also laid the ground work for the return of some federal lands 
to Native Hawaiians, including the island of Kahoolawe, which is 
currently held in trust for a future Native Hawaiian governing entity. 
The ConCon also designated the Hawaiian language along with English as 
the official state languages of Hawaii for the first time since the 
overthrow in 1893.
    I was in the Hawaii State Legislature when we approved creation of 
Hawaiian language immersion schools, recognizing that language is an 
integral part of a culture and people. The Hawaiian language was in 
danger of disappearing. Public Hawaiian language preschools, called 
Punana Leo, were started in 1984. We now have Hawaiian language 
elementary, middle, and high schools in Hawaii, and a new generation of 
fluent Hawaiian language speakers are helping to keep this beautiful 
and culturally important language alive. Other native peoples are 
looking to the Hawaii model as a means of preserving and perpetuating 
their native languages.
    I believe how we treat our native indigenous people reflects our 
values and who we are as a country. Clearly, there is much in the 
history of our interactions with the native people of what is now the 
United States that makes us less than proud. But one of the great 
attributes of America has always been the ability to look objectively 
at our history, learn from it, and when possible, to make amends.
    H.R. 2314 is supported by the great majority of Hawaii's residents, 
by its Republican governor, by our State Legislature, and by dozens of 
organizations. In 2007, the U.S. House of Representatives passed H.R. 
505, an earlier version of the bill, by a vote of 261 to 153. This was 
the second time the House had recognized the need for Native Hawaiian 
self-determination.
    The State of Hawaii motto, which was also the motto of the Kingdom 
of Hawaii, is ``Ua mau ke ea o ka aina i ka pono,'' which translates to 
``the life of the land is perpetuated in righteousness.'' Native 
Hawaiians, like American Indians and Alaska Natives, have an inherent 
sovereignty based on their status as indigenous, native people. I urge 
your support of H.R. 2314.
    Mahalo nui loa (thank you very much).
                                 ______
                                 
    Mr. Faleomavaega. Mr. Chairman, I want to associate myself 
with the most eloquent statement presented by Ms. Hirono before 
our Committee, and I want to say absolutely I join her and 
commend her and support everything that she has said concerning 
this bill. Thank you, Mazie. I appreciate it.
    Ms. Hirono. Mahalo.
    Mr. Faleomavaega. Mahalo.
    The Chairman. The gentleman from Hawaii.
    Mr. Abercrombie. Yes. Thank you, Mr. Chairman. 
Representative, I don't know if you have had an opportunity to 
look at the testimony of Ms. Heriot, who is a Commissioner of 
the United States Commission of Civil Rights. Have you had the 
opportunity?
    Ms. Hirono. I did briefly read her testimony, yes.
    Mr. Abercrombie. Yes. Without going in any great length at 
it at this time, among other things that are cited in there is 
the Admissions Act of 1959 when Hawaii became a state. The 
contention here in this testimony, one of the contentions is 
that this bill that you and I are supporting now is racially 
based. Could you elaborate on that in terms of why we think 
this is not the case?
    Ms. Hirono. There is an entire line of other cases all the 
way to the U.S. Supreme Court that talks about the special 
relationship that the United States has with indigenous people, 
the Native Americans and the Alaska Natives, so the Native 
Hawaiians are an indigenous people. There is a whole line of 
cases as I mention, and there is yes, a line of cases relating 
to equal protection under the 14th Amendment. This is not an 
equal protection issue. I think this is where the crux of the 
difference is, that this is not a race-based legislation.
    It is based on the acknowledgement that Native Hawaiians 
are an indigenous people. and it those line of cases that 
apply, not the line of cases that relate to equal protection.
    Mr. Abercrombie. Is it not one of the elements of the 
Admissions Act, which is cited in this testimony, ``One of the 
five purposes was for the betterment of the conditions of 
Native Hawaiians as defined in the Hawaiian Homes Commission 
Act 1920, as amended.''
    Ms. Hirono. That is correct.
    Mr. Abercrombie. And were we not both in the legislature 
when we developed what we hoped was going to be the definitive 
way of handling this situation when we put the Office of 
Hawaiian Affairs together?
    Ms. Hirono. Well, I was not in the legislature until 1980. 
Clearly, I supported the 1978 constitutional convention, which 
proposed the creation of OHA, which was ratified by the 
majority of the people of Hawaii, and yes, we have attempted 
when I was in the legislature for 14 years to implement the 
provisions of the creation of OHA.
    Mr. Abercrombie. The land that is referred to there, again 
in this testimony talks about ceded land. Would you elaborate 
for a moment as to what the phrase ceded land means in the 
context of Hawaiian history?
    Ms. Hirono. Well, I know that there is a legal definition 
regarding ceded land, but it represents lands that were held by 
the Federal government when Hawaii became a republic or 
annexed. These lands when Hawaii became a state were then given 
over to the State for five purposes, one of which was to assist 
the Native Hawaiians, and so the State Constitution also 
requires that certain amounts of revenues from ceded lands 
should go to Native Hawaiians, and that is an issue that is 
still being debated and addressed in Hawaii.
    Mr. Abercrombie. Is it not the case then that the lands, 
the ceded lands, are held in trust by the State?
    Ms. Hirono. Yes.
    Mr. Abercrombie. They do not belong to the State?
    Ms. Hirono. No. It is held in trust, and, of course, one of 
the trust purposes is for the benefit of Native Hawaiians.
    Mr. Abercrombie. Just one further point. With regard to 
elections that have been held so far, is it not the case that 
when the original bill was put forward, the constitutional 
amendment was put forward to establish the Office of Hawaiian 
Affairs, and Native Hawaiians were doing the voting that people 
who were not Native Hawaiians were elected to be trustees in 
the Office of Hawaiian Affairs?
    Ms. Hirono. Are you talking about after the Rice v. 
Cayetano hearing?
    Mr. Abercrombie. No, no. Before.
    Ms. Hirono. As far as I know, before Rice v. Cayetano it 
was only Native Hawaiians who could vote in that election.
    Mr. Abercrombie. When people voted, anybody who was running 
was in support of the purposes as indicated in the Admissions 
Act, were they not? Was that ever seriously disputed by anybody 
that you can recall?
    Ms. Hirono. I don't think so.
    Mr. Abercrombie. OK. Is it fair to say then that in Hawaii 
the bill is regarded and the intention of the bill is regarded 
to deal with the historical realities and political realities 
and has never been considered to be racially based except by 
those who try to indicate that that is what they think?
    Ms. Hirono. That is correct. Those of us who have addressed 
this issue, who have thought about it, who have read the 
various opinions, we have never viewed this as a race-based 
issue. It truly is recognizing Native Hawaiians as the peoples 
that were there long before Captain Cook so-called discovered 
the Sandwich Islands.
    Mr. Abercrombie. How do you answer the question then or the 
proposal or the proposition that H.R. 2314 is unconstitutional?
    Ms. Hirono. They are wrong. As I said, there are 
appropriate lines of cases that apply to the special 
relationship that the United States has native peoples. It is 
those line of cases that we should be looking at.
    Mr. Abercrombie. The testimony that I referred to says as 
follows: ``By retroactively creating a tribe of individuals who 
are already full citizens of both the United States and the 
State of Hawaii and who do not have a long and continuous 
history of separate self-governance. H.R. 2314 would be 
breaking new ground.'' Do you have a comment on that statement?
    Ms. Hirono. I cannot disagree more strongly with that 
statement because there was a Kingdom of Hawaii recognized by 
the United States. We had a number of treaties. The Kingdom of 
Hawaii, a sovereign nation, had a number of treaties, not just 
with the United States but with France, Great Britain, other 
countries. They were recognized throughout the world as a 
sovereign nation.
    Just because they were not constituted as tribes does not 
take away from the fact that Native Hawaiians are an indigenous 
peoples who should be treated the same way as treat Alaska 
Natives and American Indians.
    Mr. Abercrombie. So is it unfair to derive from this 
statement that Native Hawaiians are being punished because they 
didn't fit a definition or a category of a Constitution that 
was derived when they were, in fact, a separate kingdom at the 
time?
    Ms. Hirono. I would say that any kind of an argument that 
says that, that Native Hawaiians are not an indigenous people, 
is in my view very wrong.
    Mr. Abercrombie. Thank you. Thank you, Mr. Chairman.
    Ms. Hirono. Thank you.
    Mr. Kildee. Chairman, may I?
    The Chairman. Mr. Kildee is recognized.
    Mr. Kildee. Just briefly, and thank you very much. I am co-
sponsor of this bill and feel very strongly about it. I am Co-
Chair of the Native American Caucus. I have dealt with Native 
Americans for many, many years. America is a land of diversity 
within unity, and that is our strength, our diversity within 
unit. The sovereign continental Native Americans have not been 
less in their patriotism, in their unit, in their service to 
our country.
    We can determine that in our wars, a number of the 
continental Native Americans, and the fact that there is a 
little Pacific Ocean separating Hawaii from the continental 
United States should not lessen the same rights of having a 
sovereignty within the United States. I feel very strongly on 
this that Native Americans, including Native Hawaiians, have 
proven their loyalty through many wars, through many 
diversities of this country.
    I am happy that in my State of Michigan, I have about 12 
tribes of sovereign Native Americans, all of whom have 
regularly demonstrated their Americanism and kept their own 
traditions also. I just can't understand why we can't apply 
that same principal of equity and justice to the Native 
Hawaiians, and I support you in this.
    The Chairman. Does the gentleman yield?
    Mr. Kildee. I yield, yes.
    Mr. Faleomavaega. I just wanted to follow up Congressman 
Abercrombie's line of thinking about the Supreme Court case 
that seems to raise the issue of race-based. The fact that 
there is a white man living in Hawaii who claims that his 
rights as a voter was discriminated because he was not allowed 
to vote as other Native Hawaiians as required by State law and 
the State Constitution, I would like to ask the gentlelady 
wasn't Hawaii a U.S. Territory from 1900? For the first 20 
years, it was represented by a territorial delegate. His name 
was Prince Kuhio for some 20 years. Is that true?
    Ms. Hirono. That is correct.
    Mr. Faleomavaega. And wasn't one of the conditions in the 
Admissions Act before Hawaii could become a state that the 
Congress just simply sloughed off all its constitutional 
responsibilities to the Native Hawaiians by giving this right 
of authority to the State government to administer the needs of 
Native Hawaiians?
    Ms. Hirono. Congress retains some jurisdiction because of 
the creation of the Hawaiian Homes Commissions Act, so Congress 
has always acknowledged its special relationship with native 
peoples, including Native Hawaiians.
    Mr. Faleomavaega. But the only reason why the State took 
part in this whole relationship with the Native Hawaiians 
because Congress just simply said State of Hawaii, you take 
responsibility for what you can do to help the Native 
Hawaiians.
    Ms. Hirono. Yes.
    Mr. Faleomavaega. So there was a recognition of a distinct 
group of Native Hawaiians as you had described earlier.
    Ms. Hirono. Definitely.
    Mr. Faleomavaega. So this is not a new issue as if it was 
made up a couple of years ago before the Supreme Court decision 
to that effect.
    Ms. Hirono. I think the Rice decision is very much 
misinterpreted by those who claim that it is on that basis that 
anything relating to Native Hawaiians is race-based. That 
decision was based on the fact that OHA was basically a state-
created entity. There is a whole line of cases that relate to 
state actions, and it is because of that circumstance that led 
to the Supreme Court making its decision the way it did.
    I would like to add the Supreme Court decisions must be 
very carefully read because to take a decision and to 
extrapolate from that to areas that did not even come before 
the Court is really misreading the Court's decision.
    Mr. Faleomavaega. And basically Justice Kennedy, who wrote 
the majority opinion, specifically used the 15th Amendment as 
the basis where on the race-based issue----
    Ms. Hirono. And it was not a 14th Amendment.
    Mr. Faleomavaega. But totally ignored the basis of how the 
Native Hawaiians had to be treated according to what the 
Congress had wanted the State of Hawaii to fulfill. I just 
wanted to note that for the record, Mr. Chairman. I thank the 
gentleman from Michigan for yielding.
    The Chairman. And the gentlelady from Guam.
    Ms. Bordallo. Thank you, Mr. Chairman, and I thank my 
colleague for giving very, very excellent testimony this 
morning. I mentioned in my opening statements about the passage 
of an apology resolution in 1993, and to me, Mr. Chairman, and 
members here, we recognized that this was an injustice, so I 
feel because of that we should now try to address the 
consequences of what had happened.
    Because of this resolution, I think we should continue to 
move forward and try to rectify what had happened then, and so 
I strongly go on record again to reiterate my support of H.R. 
2314. Thank you.
    The Chairman. The gentlelady from California was here 
first. Ms. Napolitano, do you have questions?
    Ms. Napolitano. Yes, I have one, Mr. Chairman. Very 
interesting to hear your testimony, Mr. Hirono. I never really 
discussed Hawaii's interest, but I am glad to hear that this is 
on the table. One of the things that comes to mind, in the 
essence of territories, there are benefits that those 
territories receive. Now, in Hawaii's instance, what kind of 
resources or extending services would be established to benefit 
the Native Hawaiians if this bill passes?
    Ms. Hirono. This bill sets up a process whereby the United 
States can recognize a constituted Native Hawaiian governing 
entity. It creates a process. The passage of this bill would be 
the beginning of that process, but there is kinds of other 
issues that would relate to the kinds of things you are talking 
about would require the Department of the Interior, the State 
of Hawaii to enter into negotiations on those kinds of 
specifics that I believe you are asking.
    It is not as though by creating this, by passing this bill 
that all of a sudden there is going to be all of these changes 
that are made without any involvement by anyone else.
    Ms. Napolitano. Well, that brings the next question. Have 
these agencies not been providing the proper assistance to a 
qualified state, Hawaii?
    Ms. Hirono. The Congress has passed over 150 laws that 
relate to Native Hawaiians, and so in that sense, there have 
been established any number of programs that support Native 
Hawaiians, but what has been missing is an acknowledgement of a 
Native Hawaiian governing entity, a government-to-government 
relationship that the Alaska Natives and the American Indian 
Tribes have with the United States.
    Ms. Napolitano. And specifically that is? Specifically, 
what does that allow them to be in that recognition?
    Ms. Hirono. Alaska natives and American Indians have a 
nation-to-nation relationship.
    Ms. Napolitano. OK.
    Ms. Hirono. I am not familiar with all of the specifics of 
the kind of legislation that applies to these entities, but the 
thing that we should remember is the United States has a 
special relationship with native peoples, and Native Hawaiians 
are native peoples. They are the only remaining native peoples 
of this country that has not attained this kind of recognition 
and relationship with the U.S. Government, and that is what 
this bill seeking to foster.
    Ms. Napolitano. Thank you, Mr. Chair. That answers the 
question.
    The Chairman. Gentlelady from Wyoming, Ms. Lummis.
    Ms. Lummis. Thank you, Mr. Chairman, and it is such a 
pleasure to see you here this morning, Representative Hirono. I 
do have some questions for you. I have read in press reports 
that most Hawaiians oppose this legislation. Do you believe 
that is a correct statements, and do you have information to 
the contrary or that would support that?
    Ms. Hirono. That is not an accurate reflection of the 
support that this legislation of the Native Hawaiians have in 
Hawaii. The poll that you are referring to was a push poll, and 
the way the question was asked I would say most people would 
say that they would not support it, so that is not an accurate 
poll in my opinion.
    Ms. Lummis. OK.
    Ms. Hirono. It is not a fair poll.
    Ms. Lummis. OK.
    Ms. Hirono. The legislature of the State of Hawaii, which 
represents all of the people of Hawaii has time and again 
passed resolutions in support of this legislation. The Governor 
of the State of Hawaii supports it. There are numbers of 
organizations all across the country who support this bill, 
including the American Bar Association.
    Ms. Lummis. OK. Now, I understand there may be as many as 
400,000 people that are eligible to be part of the governmental 
entity that would come out of this bill. How would they relate 
to the Hawaiian government that was set up when Hawaii became a 
state and the United States government and other entities that 
are already existing such as city and county government?
    Ms. Hirono. This bill establishes a process whereby the 
Native Hawaiians will be enrolled as part of the group that 
will participate, and discussions about what a government 
entity should look like, but as I mentioned, the Native 
Hawaiians cannot on their own by themselves without any input 
or any kind of negotiation with the State of Hawaii as well as 
with the U.S. Congress, in fact, and the U.S. Department of the 
Interior as to the specific governing documents.
    This is a bill that creates a process whereby all of those 
kinds of elements of what a governing structure should look 
like can proceed, but what that all will be in finality remains 
for all of the kind of input and agreement from other entities.
    Ms. Lummis. And is that also true such as whether or not 
Native Hawaiians would still be required to pay state income 
and excise taxes? Those issues seem to be unaddressed in this 
bill, so is that up in the air?
    Ms. Hirono. All of those kinds of issues, anything that 
would allow Native Hawaiians to not pay state taxes would have 
to be agreed to by the State of Hawaii. I do not envision that 
the State of Hawaii would agree to such a thing.
    Ms. Lummis. What about public land use?
    Ms. Hirono. All of those kinds of specific kinds of 
questions that you are asking me has to do with what the 
negotiations will result in, and as I said, this entity, this 
group cannot just come up with whatever they want. There are 
parameters that would govern. They are still members of the 
United States. They are still citizens of the United States 
with all the rights and privileges of citizens of the United 
States.
    Ms. Lummis. Yet this proposed status differs significantly 
from Native American status under Indian law, correct?
    Ms. Hirono. Native Hawaiians were not constituted as tribes 
as most of us I think understand tribes, but they were a 
separate nation. They were a kingdom. We had treaties. The 
Kingdom of Hawaii had treaties with the United States. They 
were acknowledges as a nation. As I said, because they were not 
constituted as tribes does not mean that they are not an 
indigenous peoples. They are.
    Ms. Lummis. Yes, indeed. My questions arise from the 
sovereignty issues that continue to be shaped and litigated 
with regard to Indian law and the relationship of sovereign 
nations within the auspices of Indian law to the United States 
and to state governments, local governments, county 
governments, so my questions I pose to try to avoid some of the 
unanswered questions that continue to sort of plague 
inadequately fleshing out some of these issues with regard to 
the relationship between Indian law and non-Indian law, so 
thank you very much.
    Mr. Abercrombie. Would you yield for a moment?
    Ms. Lummis. Indeed.
    Mr. Abercrombie. Yes. I think a lot of these questions, 
they are good questions, and they should be answered, and I 
think you can get a practical, everyday governing answer from 
Mr. Kane when he testifies. He is the Chairman of the 
Department of Hawaiian Homelands, and virtually everything that 
you just asked in everyday practice is being dealt with by Mr. 
Kane, and I have every confidence that he will be able to not 
just answer them but provide a perspective as to practically 
how this works.
    Of course, Mr. Young is here and has more than three 
decade's experience of how the practical realities of dealing 
with questions like sovereignty are handled. They are good 
questions. They need to be answered, and they are being 
answered every day in everyday governance in Hawaii and Alaska 
today.
    Ms. Lummis. Thank you, Mr. Chairman. Thank you, Mr. 
Abercrombie, and my time is up, and I yield back.
    The Chairman. Gentleman from Alaska.
    Mr. Young. Thank you, Mr. Chairman. Thank you fine lady for 
our testimony and my buddy over here from Hawaii. I am in 
strong support of this legislation because we have lived 
through this in Alaska. I came out of this Committee, the 
Alaska Native Land Claims Act where we created 12 regional 
corporations, and we recognize them as an entity that can 
contribute ad to claim land. It is worked beautifully.
    We have had a lot of problems to begin with because there 
is sort of the hostility to the aspect that well, they are no 
different than we are. They are different. They are natives. 
There is Hawaiian Natives, and there is Alaska Natives, and 
since 1971 now, the most strongest group of individuals in the 
State are the regional corporations. It helps the State. It is 
extremely important the recognition that would be created by 
this legislation.
    The one thing we have to recognize in this act there isn't 
a native land claims act itself in Alaska. The entity once 
being created could supersede the State without the agreement 
of the State, and this is why the Governor supports it, and why 
the legislature supports it. This is going to be a cooperative 
effort to make sure that yes, they are recognized, and yes, 
they will have some different recognition and capabilities than 
they do now, but they will have better opportunity to improve 
the State of Hawaii, and that is why you have the support for 
this legislation in Hawaii.
    I am quite proud of what happened in Alaska. We have some 
still difference of opinion in some areas. There are those 
well, I am a native. I was born there. Yes, they are Caucasian. 
They are not original natives, and that is crucially important 
because there is a difference. The first aboriginals in Alaska 
were Alaskan natives, and they claimed 44 million acres of 
land. It was public land and rightfully so.
    I actually proposed when I was in the State Legislature at 
that time 100 million acres of land because we have found out 
that the natives take better care of the lands than the Federal 
governments do, and so we only got 44 million acres of land, 
which is bigger than Hawaii, I believe.
    [Laughter.]
    Mr. Young. Again, I want to compliment Neil for what he has 
been able to do in this effort. I have sponsored these bills 
over the years, and I want to compliment you on your testimony, 
and I hope my colleagues understand the importance this is to 
the native people of Hawaii and how we have worked together. 
Our tribes now in Alaska are working with Alaskan tribes 
together trying to give advise where the mistakes were made and 
trying to avoid those mistakes and go forth with this good 
piece of legislation. With that, Mr. Chairman, I yield.
    Mr. Abercrombie. Would you yield a moment?
    Mr. Young. Yes, gladly.
    Mr. Abercrombie. With regard to that, it is an excellent 
point about the 44 million acres. What we are dealing with here 
in practical terms is 1.8 million acres in ceded land, the 
former crown lands over which the State of Hawaii now has trust 
responsibility, and about 200,000 acres of Hawaiian homelands, 
which Mr. Kane directly administers on behalf of the people of 
the State today.
    The reason that you get these questions now, in all 
honesty, Doc, and everybody else, is that when the 1.8 million 
acres were seen as essentially worthless, which is the reason 
that these particular lands because you could have said at the 
time that the entire state was crown lands because it was a 
kingdom, and it was operated in a feudal manner so that the 
chiefs and chiefesses had fiduciary responsibility in terms of 
their authority for all of the lands.
    When we put western ideas of property and ownership into 
the equation, well then it became somebody's land. They owned 
it, and so the 1.8 million acres essentially were seen as 
something that the merchant bankers didn't need or that didn't 
belong to the inheritors of the crown lands previously. 
Merchant bankers came in and married Native Hawaiians and 
claimed land, so the 1.8 million acres wasn't seen as worth 
anything.
    The 200,000 acres that Mr. Kane administers right now again 
were seen as well, we will just give that to the Hawaiians. 
Nobody wants it. There is no water. There is no infrastructure, 
There is no anything. It is not useful to anybody who wants to 
make money out of it, so we will give that to the Native 
Hawaiians. Now, come to 2010, how would you like to have, Doc, 
1.8 million of acres of land in Hawaii today? How would you 
like to have 200,000 acres in additional land reserved for 
Hawaiians by Congressional act?
    Mr. Hastings. I want to help the negotiations.
    [Laughter.]
    Mr. Abercrombie. When we come down to it, when you get 
right down to the nitty gritty of all of this, this has nothing 
to do with the Constitution. This has nothing to do with race. 
This has to do with assets, land and money, and when that 1.8 
million acres wasn't yielding any money, when that 200,000 
acres was out there, and it didn't have any value to them, let 
me tell you now you got two million acres of land in Hawaii, 
you have hundreds of millions of dollars in funds that are 
under the care of the Office of Hawaiian Affairs right now, 
which will go to this new entity.
    You have an income stream in the tens of millions of 
dollars coming from the lease arrangements on either the ceded 
lands or the Hawaiian Homelands, so that you can build houses, 
you can put infrastructure in. Now everybody is interested that 
they are not discriminated against, and what they mean is how 
can they get in on owning, controlling, maneuvering and 
manipulating that two million acres of land, the hundreds of 
millions of dollars and the tens of millions of dollars of 
income stream. I rest my case.
    [Laughter.] [Applause.]
    Mr. Young. I am out of time.
    Mr. Faleomavaega. Will the gentleman yield further?
    Mr. Young. If I have some time, go ahead.
    Mr. Faleomavaega. Just a short note, Mr. Chairman, and also 
to Ms. Hirono. There is another portion of what my good friend 
Congressman Abercrombie noted. When the Homestead Commission 
Act passed in 1921 by the Congress, the descendants, and by the 
way the big merchants that were there controlling the economy, 
we call them the big five, if you will, were descendants of the 
missionaries who came to the islands, gave us the Bible, and 
now they own the land, and the Hawaiians own the Bible.
    We have a nice statement from those of us from the islands, 
the missionaries came to do good, and they did very well. In 
essence, Mr. Chairman, this Homestead Commission Act was 
passed. The 200,000 acres were the worst portions of the land 
given to the Native Hawaiians supposedly to get them back to 
agriculture and to become self-sufficient as it was the dream 
and the aspirations of Prince Kuhio when he served as a 
territorial delegate for 20 years.
    The sad story to say, that was the Hawaiians trail of many 
tears because they continue to suffer. From 1921, they were 
never given any opportunities to collectively be part of the 
economy, if you will, and then for all these years, this is own 
they have suffered, and I thank the gentlelady from Wyoming for 
good questions, and I sincerely hope that she will join us in 
appreciating what these native peoples have had to endure, and 
I thank the gentleman from Alaska for his support in this bill. 
Thank you.
    The Chairman. The gentleman from Colorado. Mr. Coffman.
    Mr. Coffman. Thank you, Mr. Chairman. You may have covered 
this, but if we pass this, if this legislation is passed, is 
there any impact to the Federal treasury? Does this drive any 
entitlements whereby people are not eligible for now that would 
be eligible for under any other legislative programs?
    Ms. Hirono. Any of those kinds of issues would have to be 
decided by Members of Congress, by the appropriate Interior 
Department, other groups that would have to agree. There is 
nothing in the bill that says that there will appropriated 
certain sums of money under this bill.
    Mr. Coffman. And maybe this is something for the next 
panel, but just to make sure, are there some reclassification 
issues that might occur on Native Hawaiians that would, in 
fact, make them eligible for an array of new programs by virtue 
of this?
    Ms. Hirono. There is nothing in the language of this bill 
that would lead me to conclude that.
    Mr. Coffman. Thank you, Mr. Chairman. I yield back the 
balance of my time.
    The Chairman. Any further questions or comments or history? 
All right. Mazie, thank you very much.
    Ms. Hirono. Thank you.
    The Chairman. You have been very helpful to us and very 
patient with your time. You, by the way, are welcome to join 
the Committee for the next panel. Come on up and play deal or 
no deal with the Ranking Member.
    Mr. Abercrombie. Mr. Chairman? Mr. Chairman?
    The Chairman. Yes.
    Mr. Abercrombie. While you are bringing up the second 
panel, could I just make a brief comment in answer to Mr. 
Coffman's again very good question? On the strictly 
administrative side, there is no impact according to the OMB 
from the previous administration, and I expect it won't be any 
different from this.
    The other things is, it will probably have a positive 
impact on the Federal Treasury because business will be done, 
taxes will be paid as a result that we wouldn't otherwise at 
presently have any opportunity to collect because we can't get 
anything going until we get this thing done. This is going to 
be an enormously good thing and more taxes both locally and 
nationally will be paid.
    The Chairman. Thank you. Our next panel, and I am going to 
apologize ahead of time if I butcher the pronunciation of some 
of the names, but I will call up The Honorable Micah Kane, the 
Chairman of Department of Hawaiian Homelands, Kapolei, Hawaii; 
The Honorable Haunani Apoliona. Neil, would you like to 
introduce this panel?
    Mr. Abercrombie. Can I help you out here?
    [Laughter.]
    Mr. Abercrombie. Haunani Apoliona.
    The Chairman. Who is the Office of Hawaii Affairs from 
Honolulu;, Ms. Gail Heriot, the U.S. Commission on Civil 
Rights, San Diego, California; Mr. Michael Yaki, the U.S. 
Commission on Civil Rights, San Diego, California, and Mr. 
Christopher Bartolomucci, a partner in Hogan & Hartson here in 
Washington, D.C.
    Ladies and gentleman, welcome to the Committee. We 
appreciate the distance you have traveled in some cases and the 
time that you have given to be with us today. We do have all of 
your prepared testimonies, and they will be made part of the 
record as if actually read, and you are encouraged to 
summarize, and you may proceed in the order in which I 
introduced you and in the manner you wish.

            STATEMENT OF THE HONORABLE MICAH KANE, 
           CHAIRMAN, DEPARTMENT OF HAWAIIAN HOMELANDS

    Mr. Kane. Thank you, Chairman Rahall.
    The Chairman. Yes, Mr. Chairman.
    Mr. Kane. Representative Hastings, Representative 
Abercrombie, Representative Hirono and members of the 
Committee. Thank you for this opportunity to testify in strong 
support of this measure. My name is Micah Kane. I am the 
Chairman of the Hawaiian Homes Commission. I also serve as the 
Director of the Department of Hawaiian Homelands, the entity 
that Representative Abercrombie eluded to in the prior 
testimony.
    I come here with the support of our Republican Governor and 
the support of our Republican Attorney General. I would also 
like to thank our Representative Abercrombie for his continued 
support back home across the aisle. As he stated earlier, this 
is not a partisan issue. This is an issue that has very broad 
support. In fact, prior to holding this position as the 
Director of the department, I served as the Chairman of the 
Hawaii Republican Party, and even that position, our party back 
home passed multiple resolutions in support of this measure.
    I think that fact is very important to support what Mr. 
Abercrombie was alluding to earlier. In 1921, Hawaiian Homes 
was established by an act of Congress. It was the Congress' 
first attempt to reconcile the past wrongs that the United 
States did to our Kingdom. It set aside 200,000 acres of land 
for the purpose of rehabilitating Native Hawaiians. In 1959, 
when we became a state as part of the Admission Act, the 
responsibility was transferred to the State of Hawaii, and 
today I run one of 16 departments.
    I sit as a member of the Governor's cabinet, as one of nine 
members that are appointed by the Governor on a nine-member 
commission. For the last 80 years, the department has thrived. 
It has had its challenges, but today we manage 29 homestead 
communities with over 36,000 people who reside on our lands. 
They are democratically elected communities. Today, we are the 
largest master planned community developer in the State of 
Hawaii.
    We are the largest affordable housing developer in the 
State of Hawaii. We are self-sufficient in our operations as 
the representative eluded to from the dispositions of the lands 
that we have. We don't take a single dollar in state taxpayer 
money to operate our water systems, our roadway systems, and we 
are very proud of that. In summarizing my testimony, and again 
I have to thank Representative Abercrombie for his comments, 
there is tremendous broad support for this measure, and it is 
for this simple reason because this is not new to us.
    The mechanics of operating and engaging an entity like this 
is nothing new to the people of Hawaii nor the leadership of 
Hawaii. While our mission at the department is to serve a 
specific beneficiary group, we don't build segregated 
communities. When we build a park or a community center, we 
build it as a gather place. When we dedicate land for a public 
school, a private school or a charter school, it is not 
exclusive to Native Hawaiian children. We open it up to others.
    Our resources are commonly dedicated for infrastructure 
improvements that go beyond just serving our community. When we 
build a water line, a sewer line, or a roadway system, we take 
into consideration our neighbors. We are a land-locked state, 
and we can't operate in isolation. When you enter our 
communities, you don't know when you start or end, and we take 
pride in that. There is three primary points that I would like 
to make that I think are critical in our discussion today. The 
department of Hawaiian Homelands is the closest example of a 
governing entity.
    That step is small for us as we move to implement the 
actions that the Akaka bill asks us to do. We are 
democratically elected communities who operate much like a 
county. We have five counties in the State of Hawaii. Our CIP 
budget would be the second largest in the State to the Honolulu 
County, which is the eleventh largest city in our country. We 
operate again with a very large CIP budget. The second point is 
we have become a critical component of Hawaii's economy, our 
social fabric and are a critical partner in overcoming major 
challenges our state faces.
    The Department of Hawaiian Homelands is at the forefront of 
our state's initiative to reduce our dependency on fossil fuel. 
We will continue to lead in that effort, and Hawaii will 
benefit from that effort. The Department of Hawaiian Homelands 
is at the forefront of driving education opportunities both K 
through 12 and at the higher education level into rural 
communities. We are proud of that. We want to continue to 
partner in that effort.
    Finally, we are at the forefront of helping our state 
overcome major infrastructure challenges much like in your 
states whether it be Colorado, Wyoming or California. Finally, 
many of the comments coming from those who have concerns about 
this measure seem to think that this bill may draw a line in 
the sand between those who have and those who have not when in 
reality it builds a bridge. I know it is difficult for many of 
you who do not come from our island to feel that, but it truly 
is the case.
    I stand on the remainder of my testimony and thank you for 
your continued support. Mahalo.
    [The prepared statement of Mr. Kane follows:]

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

    Aloha kakou, Chairman Rahall, Representative Abercrombie, 
Representative Hastings and members of this committee.
    I am Micah Kane, Chairman of the Hawaiian Homes Commission, and I 
thank you for this opportunity to express 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 
responsibility to administer the Hawaiian home lands program was 
transferred to the State of Hawaii. The United States, through its 
Department of the Interior, maintains an oversight responsibility and 
certain 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 36,000 native Hawaiians living in 29 homestead communities 
throughout the State. Each community is an integral part of our state's 
economic, social, cultural, and political fabric.
    Passage of H.R. 2314 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:
1.  Our housing program benefits the entire state.
        The Department of Hawaiian Home Lands is the largest single 
        family residential developer in the State of Hawaii and has 
        provided nearly 3,000 families homeownership opportunities in 
        the past five years. Each home we build represents one more 
        affordable home in the open market or one less overcrowded 
        home. 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.
2.  We build and maintain partnerships that benefit 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.
3.  We are becoming a self-sustaining economic engine.
        Through our general lease program, we rent non-residential 
        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.
4.  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.
5.  Hawaiian home lands have similar legal authority as proposed under 
        H.R. 2314.
        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 H.R. 2314.

        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.

    The Hawaiian Home Lands Trust and our homesteading program 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.
                                 ______
                                 

STATEMENT OF THE HONORABLE HAUNANI APOLIONA, CHAIRWOMAN, OFFICE 
               OF HAWAIIAN AFFAIRS, HONOLULU, HI

    Ms. Apoliona. Chairman Rahall, Representative Hastings, 
Congressman Abercrombie, Congresswoman Hirono and members of 
the Committee of Natural Resources, I am Haunani Apoliona, a 
Native Hawaiian, elected to the Office of Hawaiian Affairs 
Board of Trustees in 1996 and since 2000 have served as the 
chairperson of the nine-member elected Board of Trustees, two 
of whom are here today, Trustee Akana and Trustee Machado 
behind me, along with our Board of Trustees Council, Former 
Associate Justice of the Hawaii State Supreme Court, Robert 
Klein.
    Mahalo for holding this hearing today. As was stated much 
earlier this morning, it is a special day. It is a holiday in 
our state for King Kamehameha honoring this native Hawaiian 
leader, indigenous leader who unified the Hawaiian Islands, so 
OHA proudly is here today to testify in support of H.R. 2314. 
In 1978, Hawaii citizens convened a constitutional convention 
and Hawaii voters later participated in a statewide referendum 
to ratify amendments to the Hawaii state constitution.
    Included in those amendments was the authorization to 
establish the Office of office of Hawaiian Affairs [OHA] as the 
State's institutional mechanism to afford the native people of 
Hawaii the means to give expression to their rights under 
Federal law and policy to self-determination and self-
governance. Since that time, OHA has administered resources, 
programs and services to Native Hawaiians consistent with the 
provisions of the compact between the United States and the 
State of Hawaii as embodied in the Hawaii Statehood Act.
    Mr. Chairman and members of the Committee, thousands of 
years before western contact was first recorded in 1778, the 
native people of Hawaii occupied and exercised our sovereignty 
in the islands that were later to constitute the State of 
Hawaii. In 1849, our government entered into a treaty of 
friendship, commerce and navigation with the United States, and 
while our government was later removed from power by armed 
force in 1893, our relationship with the United States did not 
end.
    In the ensuing years, the U.S. Congress enacted well over 
150 Federal statutes defining the contours of our political and 
legal relationship with the United States, including Congress 
enacting and the President signing Public Law 103-150 in 1993 
that extends apology to the Native Hawaiian people for the 
United States' involvement in the overthrow of our government. 
Today, the indigenous native people of Hawaii seek the full 
restoration of our native government through the enactment of 
H.R. 2314.
    We do so in recognition of the fundamental principle that 
Federal policy of self-determination and self-governance 
assures that the three groups of America's indigenous native 
people, American Indians, Alaska Natives and Native Hawaiians 
have equal status under Federal law. Native governments in the 
continental United States and Alaska vary widely in 
governmental form and structure. Our government will be 
reorganized to reflect our unique history, our culture, values 
and traditions.
    We do not seek to have our lands held in trust by the 
United States or the State of Hawaii or to have our assets 
managed by the Federal or state governments. We do not seek the 
establishment of new Federal programs. Federal statutes have 
already provided that authority, and we have been successfully 
administering programs under those authorities for decades. 
Specific to H.R. 2314, we wish to express the need for three 
technical amendments with regard to certain portions of this 
bill.
    With these technical amendments, we believe the bill will 
better reflect our continuing political and legal relationship 
with the United States. Our first and highest priority we 
suggest that the definition of the term Native Hawaiian in H.R. 
2314 be amended to conform with the definition of Native 
Hawaiians in existing Federal statutes based on U.S. political 
relationship with Native Hawaiians. This would be achieved by 
amending H.R. 2314 to additionally include the definition that 
has been used in all of the Federal statutes affecting Native 
Hawaiians for more than 30 years.
    The now standard definition of Native Hawaiian, which is, 
``the lineal descendants of those aboriginal indigenous native 
people who occupied and exercised sovereignty in the islands 
that comprise the State of Hawaii prior to 1778,'' we know of 
no statement or action by the Congress that would suggest that 
the Congress intends to depart from this long-standing and 
well-established Federal law and policy definition that has 
been in place for more than 30 years and which affords the 
maximum inclusion and participation by Native Hawaiians in the 
H.R. 2314 process.
    Our second recommended technical amendment underscores a 
fundamental premise in Federal law that one of the most basic 
aspects of sovereignty is defining membership or citizenship in 
a native government. We believe that we can identify with a 
great measure of certainty those who would quality as Native 
Hawaiians under the Act, and we could capably certify to the 
Secretary of the Interior that each person listed on a roll of 
those Native Hawaiians who elect to participate in the 
reorganization of a Native Hawaiian government meets the 
definition of Native Hawaiian.
    We do not believe it is a wise expenditure of Federal funds 
in these tough economic times to call for the establishment of 
yet another Federal commission when these matters can be 
effectively and efficiently addressed by the members of the 
Native Hawaiian community. Thus, we would recommend the 
elimination of Section 7[b] of the bill and additional 
conforming changes to other relevant parts of the bill that 
reference a commission.
    Finally, we believe Section 8 of H.R. 2314 requires review 
and technical amendments. Current language in this section 
appears to shield the United States from possible liability 
against claims of Native Hawaiians that are available to other 
citizens. For instance, the current claims section is written 
so broadly as to bar any claims that might arise out of a 
personal injury or death of a Native Hawaiian for which the 
Federal or state governments or their representatives bear 
direct responsibility.
    We do not believe that the Congress intends that this bill 
should deny Native Hawaiians their constitutional rights. 
Section 8 of H.R. 2314 provides a process for negotiation 
amongst the governments of the United States, the State of 
Hawaii and the Native Hawaiian people and will address many 
matters including assertions of historical wrongs committed by 
the United States or the State of Hawaii against Native 
Hawaiians.
    The bill further provides that once resolution of the 
various matters listed in H.R. 2314 have been achieved, there 
will be recommendations for implementing legislation submitted 
to the Committees of the U.S. Congress, to the Governor and the 
legislature of the State of Hawaii.
    Accordingly, we firmly believe that H.R. 2314 already 
contains sufficient authorization for the three governments to 
address and resolve Native Hawaiian grievances through the 
negotiations process authorized in 8[b][1][F] of the bill and 
that the bill is not intended to alter the status quo prior to 
the outcomes of that negotiation process. However, as currently 
formulated, certain provisions of Section 8 would alter the 
substantive rights of Native Hawaiians well before a 
negotiation process begins.
    Those provisions are internally inconsistent with the 
philosophy of Section 8 and should be amended. Mahalo for the 
opportunity to testify in support of H.R. 2314. There is no 
legislation at this time that is more important to our people. 
We look forward to working with the Committee on specific 
legislative language consistent with our recommendations. Thank 
you.
    [The prepared statement of Ms. Apoliona follows:]

          Statement of Trustee Haunani Apoliona, Chairperson, 
             Board of Trustees, Office of Hawaiian Affairs

                             Na`Oiwi `Olino

                       E o e na `Oiwi `Olino `ea

                        Na pulapula a Haloa `ea

                       Mai Hawai`i a Ni`ihau `ea

                     A puni ke ao malamalama `ea e

                        Ku`e au i ka hewa, ku`e!

                          Ku au i ka pono, ku!

                         Ku au i ka hewa, ku`e!

                          Ku au i ka pono, ku!

              Answer, O Natives, those who seek knowledge

                        The descendants of Haloa

         From Hawai`i island in the east to Ni`ihau in the west

                    And around this brilliant world

                      I resist injustice, resist!

                   I stand for righteousness, stand!

                      I resist injustice, resist!

                   I stand for righteousness, stand!

Introduction
    E naalaka`i a me na lala o keia Komike o na Kuleana o ka `Aha`olelo 
Nui o `Amelika Hui Pu ia, aloha mai kakou. He loa ke ala i hele `ia e 
makou, na `Oiwi `olino o Hawai`i, a he ala i hehi mua `ia e na ali`i o 
makou, e la`a, `o ka Mo `i Kalakaua, ke Kamali`iwahine Ka`iulani, a me 
ka Mo`iwahine hope o ke Aupuni Mo`i Hawai`i, `o ia ko makou ali`i i 
aloha nui `o Lili`uokalani. A he nui no ho`i na Hawai`i kunou mai ai i 
mua o `oukou e nana pono mai i ke kulana o ka `oiwi Hawai`i, kona 
nohona, kona olakino, ka ho`onaauao a pelawale aku.
    Ua pono ka helena hou a makou nei a loa`a ka pono o ka `aina, ke 
kulaiwi pa`a mau o ka lahui `oiwi o Hawai`i pae`aina, `o ia wale no ka 
Hawai`i. No laila, eia hou no ka `oiwi Hawai`i, he alo a he alo, me ka 
`Aha`olelo Nui.
ALOHA
    Chairman Rahall, Ranking Member Hastings, and Members of the 
Committee on Natural Resources, my name is Haunani Apoliona and I serve 
as the Chairperson of the Board of Trustees for the Office of Hawaiian 
Affairs (OHA), a body corporate established in 1978 by the Hawai`i 
State Constitution and implementing statutes.
    The mission of the Office of Hawaiian Affairs is to protect and 
assist Native Hawaiian people and to hold title to all real and 
personal property in trust for the Native Hawaiian people.
    OHA is working to bring meaningful self-determination and self-
governance to the Native Hawaiian people, through the restoration of 
our government-to-government relationship with the United States.
    I testify today in support of enactment of H.R. 2314 and its 
companion legislation in the U.S. Senate, S. 1011.
Federal Policy of Self-Determination and Self-Governance
    As this Committee well knows, on July 8, 1970, President Richard M. 
Nixon, announced that from that day forward, the policy of the United 
States would recognize and support the rights of America's indigenous, 
native people to self-determination and self-governance. In the ensuing 
39 years, each succeeding U.S. President has reaffirmed this policy as 
the fundamental basis upon which Federal law and Federal actions 
affecting this nation's First Americans would be premised.
    In carrying out this Federal policy, six U.S. Presidents have 
assured all Americans that there will be equal status and equal 
treatment under Federal law accorded to the three groups that make up 
this nation's population of indigenous, native people--American 
Indians, Alaska Natives and Native Hawaiians.
The Evolution of Self-Determination and Self-Governance Policy in the 
        State of Hawai`i
1959--Hawaii Admissions Act--Establishment of a Public Trust
    In 1959, the State of Hawaii was admitted into the Union of States 
as the 50th State. As a condition of its admission, the United States 
called upon the new State to accept, in trust, the transfer of lands 
set aside for Native Hawaiians under Federal law--the Hawaiian Homes 
Commission Act of 1920--lands which had, up until that time, been held 
in trust for Native Hawaiians by the United States. In addition, the 
United States retained the exclusive authority to initiate enforcement 
action should there be any breach of the homelands trust. As an 
additional condition of admission, the provisions of the Hawaiian Homes 
Commission Act were incorporated into the State's Constitution.
    The United States also ceded to the State of Hawai`i lands that had 
been previously transferred to the Federal government, and imposed upon 
the State a requirement that those lands be held in a public trust for 
Native Hawaiians and the general public, and further provided that the 
revenues derived from those lands be used for five authorized purposes, 
one of which was the betterment of the conditions of Native Hawaiians.
1978--Amendment to State Constitution--Office of Hawaiian Affairs 
        Established
    Less than twenty years later, in 1978, the citizens of the State of 
Hawai`i went to the polls to participate in an historic statewide 
referendum in which they voted to amend the Constitution of the State 
of Hawai`i to provide for the establishment of the Office of Hawaiian 
Affairs, as a means for Native Hawaiians to give expression to their 
rights to self-determination and self-governance. The action taken by 
the citizens of Hawai`i was a natural outgrowth of the responsibilities 
assumed by the State of Hawai`i upon its admission into the Union of 
States.
    The 1978 amendments to the State's Constitution establishing the 
Office of Hawaiian Affairs, authorized the Office of Hawaiian Affairs 
to hold title to all real and personal property then or thereafter set 
aside or conveyed to it and required that the property be held in trust 
for Native Hawaiians.
    The Constitutional amendments further provided for a nine-member 
Board of Trustees that would be responsible for the management and 
administration of the proceeds from the sale or other disposition of 
the lands, natural resources, minerals and income derived from whatever 
sources for the benefit of Native Hawaiians, including all income and 
proceeds from the pro rata portion of the public trust, as well as 
control over real and personal property set aside by state, federal or 
private sources and transferred to the Office of Hawaiian Affairs for 
the benefit of Native Hawaiians.
    Finally, the 1978 amendments to the State Constitution charged the 
Board of Trustees of the Office of Hawaiian Affairs with the 
formulation of policy relating to the affairs of Native Hawaiians. The 
amendments also reaffirmed the State's commitment to protect all 
rights, customarily and traditionally exercised by Native Hawaiians for 
subsistence, cultural and religious purposes and which were possessed 
by those Native Hawaiians who were descendants of Native Hawaiians who 
inhabited the Hawaiian Islands prior to 1778--which was the date of the 
first recorded European contact with the aboriginal, indigenous, native 
people of Hawai`i--subject to the right of the State to regulate those 
rights.
    Later, statutory provisions were enacted into law to implement the 
State's constitutional amendments which provided that:
    ``Declaration of Purpose. (a) The people of the State of Hawai`i 
and the United States of America as set forth and approved in the 
Admission Act, established a public trust which includes among other 
responsibilities, betterment of conditions for native Hawaiians. The 
people of the State of Hawai`i reaffirmed their solemn trust obligation 
and responsibility to native Hawaiians and further declared in the 
state constitution that there be an office of Hawaiian affairs to 
address the needs of the aboriginal class of people of Hawai`i.''
    The duties of the Board of Trustees of the Office of Hawaiian 
Affairs, as defined by statute are extensive, and over the past 31 
years of its existence, the Office has been recognized not only within 
the State of Hawai`i, but nationally and internationally, as the 
principal governmental voice of the Native Hawaiian people.
Dismantling of the Original Native Hawaiian Government
    For nearly a century before the forced annexation of the Kingdom of 
Hawai`i in 1898, the United States, Great Britain and France were 
amongst the many nations that recognized the Native Hawaiian government 
as sovereign, and entered into treaties and agreements with the Native 
Hawaiian government. Later, those who engineered the overthrow of the 
government of the Kingdom of Hawai`i on January 17, 1893, engaged in a 
systematic effort to dismantle the native government, and by their 
actions, severely compromised the ability of Native Hawaiians to manage 
their own affairs.
    Notwithstanding the illegal overthrow of their government, Native 
Hawaiians steadfastly resisted the efforts to divest them of their 
rights to self-determination, and when the Provisional Government and 
its successor, the Republic of Hawai`i, sought the United States' 
annexation of Hawai`i--Native Hawaiians turned out in large numbers to 
register their opposition to annexation through petitions signed by 
hundreds of thousands of Native Hawaiians. (See The Hui Aloha Aina 
Anti-Annexation Petitions, 1897 - 1898, compiled by Nalani Minton and 
Noenoe K. Silva (UHM Library KZ245.H3 M56 (1998)).
    Within a little over 20 years of annexation, the Native Hawaiian 
population had been decimated. Native Hawaiians had been wrenched from 
their traditional lands, compelled to abandon their agrarian and 
subsistence ways of life, forced into rat-infested tenement dwellings, 
and were dying in large numbers. Those who survived disease and 
pestilence never gave up their quest for self-determination, and 
sought, through their delegate to the U.S. Congress, the enactment of a 
law that would enable them to be returned to their lands.
Hawaiian Homes Commission Act of 1920
    That law, the Hawaiian Homes Commission Act of 1920, set aside 
approximately 203,500 acres of land on the five principal islands 
comprising the Territory of Hawai`i, for homesteading and farming and 
the raising of livestock by Native Hawaiians. Upon statehood, the 
Hawaiian homelands that were held in trust by the United States for 
Native Hawaiians, were transferred to the State of Hawai`i, and a 
provision of the compact between the United States and the State of 
Hawai`i required that the State assume a trust responsibility for the 
homelands.
    Since 1921, the Hawaiian Homes Commission Act and the lands set 
aside under the Act have been administered by the Hawaiian Homes 
Commission, whose board is composed of predominantly Native Hawaiian 
commission members, and an agency of the State of Hawai`i, the 
Department of Hawaiian Homelands.
Apology Resolution--One Hundred Years After the Dismantlement of the 
        Native Hawaiian Government
    In 1993, the United States Congress adopted and the President 
signed a joint resolution extending an apology to the Native Hawaiian 
people for the United States' involvement in the overthrow of the 
Kingdom of Hawai`i, and acknowledging that the United States' 
annexation of Hawai`i in 1898 resulted in the ``deprivation of the 
rights of Native Hawaiians to self-determination.'' (See Apology 
Resolution, Public Law No. 103-150, 107 Stat. 1510 (1993), see also 
Robert N. Clinton, Arizona State Law Journal, ``There is Not Federal 
Supremacy Clause for Indian Tribes,'' Symposium on Cultural 
Sovereignty, Spring 2002, 34 Ariz. St. L. J. 113, 165.)
    Also acknowledging the impact of annexation on Native Hawaiian 
self-determination, the U.S. Departments of Justice and Interior called 
upon the Congress to ``enact further legislation to clarify Native 
Hawaiians' political status and to create a framework for recognizing a 
government-to-government relationship with a representative Native 
Hawaiian governing body.'' U.S. Depts. of Justice and Interior, From 
Mauka to Makai: The River of Justice Must Flow Freely at 4 (Report on 
the Reconciliation Process Between the Federal Government and Native 
Hawaiians, Oct. 23, 2000).
Notwithstanding the Dismantlement of Their Government, Political 
        Organization Amongst Native Hawaiians Continues
    Since the time of the overthrow of the Kingdom of Hawai`i, Native 
Hawaiians have given expression to their political leadership through 
organizations like the Royal Societies. Royal societies have continued 
to function from their founding to the present day and wield 
considerable political and cultural influence in the Native Hawaiian 
community. These royal societies formally link the modern day Native 
Hawaiian community with the Kingdom of Hawai`i. There are four 
societies--the Royal Order of Kamehameha; `Ahahui Ka`ahumanu; Hale O Na 
Ali`i O Hawai'i; and Mamakakaua, Daughters and Sons of Hawaiian 
Warriors.
    While each of the four has their own history and role, they share 
certain traits. All have royal origins, which are reflected in unique 
insignia and regalia which remain in use today and distinguish the four 
societies to Native Hawaiians. Each is also led by descendants of the 
royalty and chiefs who served at the society's founding and each 
currently has members and active chapters statewide. Formal leadership 
resides in these modern day successors to the royal families and 
chiefs.
    Another manifestation of Native Hawaiians' desire to maintain a 
distinct Native Hawaiian role in the evolution of Hawai`i's society, 
was the establishment of a Hawaiian Civic Club in Honolulu in December 
of 1917, initiated by Hawai`i's delegate to the U.S. Congress and a 
Native Hawaiian, Prince Jonah Kuhio Kalaniana`ole. This first club was 
dedicated to the education of Native Hawaiians, the elevation of their 
social, economic and intellectual status as they promote principles of 
good government, outstanding citizenship and civic pride in the 
inherent progress of Hawai`i and all of her people.
    Today, there are 52 Hawaiian Civic Clubs across the United States 
through which Native Hawaiians actively contribute to the civic, 
economic, health and social welfare of the Native Hawaiian community, 
by supporting programs of benefit to the people of Hawaiian ancestry, 
providing a forum for full discussion of all matters of public 
interest, honoring, fulfilling, protecting, preserving and cherishing 
all sources, customs, rights and records of the Native Hawaiian ancient 
traditions, cemetery areas and the historic sites of Native Hawaiians. 
One of the Hawaiian Civic Clubs, Ke Ali`i Maka`ainana, is named in 
honor of Prince Jonah Kuhio Kalaniana`ole, and is primarily composed of 
members from Virginia, Maryland and the District of Columbia.
    Another expression of Native Hawaiian self-determination is found 
in the State Council of Hawaiian Homestead Associations, which was 
established in 1987 to provide a means of expressing the collective 
voice of those Native Hawaiians residing on the homelands so that they 
might address issues common to all homesteaders and to make their 
concerns known to the Department of Hawaiian Homelands. The State 
Council is made up of 24 organizations representing over 30,000 Native 
Hawaiian homesteaders.
    As the instrument of self-determination and self-governance that 
the citizens of Hawaii established it to be, the Office of Hawaiian 
Affairs is still the largest governmental entity representing the 
interests and needs of Native Hawaiians, which U.S. Census figures 
indicate include 401,102 Native Hawaiians residing in Hawai`i and the 
continental United States.
Restoration of the Native Hawaiian Government
    Like our brothers and sisters in Indian country whose Federally-
recognized tribal status was being terminated at the very time our 
State was being admitted to the Union of States, we seek Congress' 
action in restoring to the Native Hawaiian people that which the 
Congress has restored to the so-called ``terminated'' tribes--the 
Federal recognition of our governmental status, and a reaffirmation of 
the continuing political and legal relationship we have with the United 
States of America.
    It is well documented that throughout the United States, Native 
governments are best suited to ensure the perpetuation of their people 
and their cultures through the development of educational and language 
programs, culturally-sensitive social services, and the preservation of 
traditional cultural practices. In Hawai`i, where our native culture is 
the primary attraction in a tourist industry that fuels the State's 
economy, preservation of Native Hawaiian culture is an economic 
imperative.
    We believe that the restoration of our Native government will 
provide the Native Hawaiian people with the tools we need to achieve 
self-sufficiency, economic security, and provide for the health and 
welfare of our people.
Political and Legal Relationship with the United States
    As Native Hawaiians, we believe that our continuing legal and 
political relationship with the United States is not in doubt. It is 
manifested in treaties and given expression in well over one hundred 
Federal laws.
    Since 1910, the United States Congress has enacted over 160 Federal 
statutes that are designed to address the conditions of Native 
Hawaiians. As we have described, the Hawaiian Homes Commission Act of 
1920 set aside over 200,000 acres of land in our traditional homeland--
the Islands of Hawai`i--so that we might return to the land, build 
homes, grow our traditional foods, raise livestock and cattle, and 
teach our children the values that are so closely tied to our respect 
for the `aina (land), and our desire to care for the land, malama 
`aina.
    The Act by which Hawai`i gained its admission into the Union of 
States is, of course, a Federal law--a compact between the United 
States of America and the State of Hawai`i--which explicitly recognizes 
the distinct status of Native Hawaiians under both Federal and State 
law and the State's constitution, and which expressly provides for the 
protection of the Native Hawaiian people and the preservation of 
resources to provide for the betterment of the conditions of Native 
Hawaiians. No other group of citizens in the State of Hawai`i has this 
unique status.
    The Hawaiian Homes Commission Act of 1920 and the Hawai`i 
Admissions Act of 1959 are but two of the Federal statutes that serve 
to define the contours of the political and legal relationship that 
Native Hawaiians have with the United States.
    There is the Native Hawaiian Education Act, first enacted into law 
by the Congress, in 1988. It authorizes funding for preschool through 
university educational programs, including programs for the gifted and 
talented, and Native Hawaiian language immersion instruction and 
curricula--all of which have contributed to the improvement in 
educational performance and achievement of Native Hawaiian students, 
and the reduction of school drop-out rates.
    There is the Native Hawaiian Health Care Improvement Act, also 
enacted by the Congress in 1988, which provides support to the Native 
Hawaiian health care systems that oversee the operation of clinics and 
outpatient facilities serving predominantly Native Hawaiian communities 
on the five principal islands of Hawai`i.
    Title VIII of the Native American Housing Assistance and Self-
Determination Act authorizes funding for the construction of housing 
for low-income Native Hawaiian families who are eligible to reside on 
the Hawaiian homelands and Federal loan guarantees for the development 
of housing projects on the homelands.
    The Native Hawaiian Homelands Recovery Act enables the Department 
of Hawaiian Homelands to reclaim lands that become surplus to the needs 
of the United States and add them to the inventory of lands set aside 
for Native Hawaiians under the authority of the Hawaiian Homes 
Commission Act.
    Nationwide, the Comprehensive Employment and Training Act has had 
its most successful implementation through a statewide nonprofit Native 
Hawaiian organization known as Alu Like, Inc., and other employment and 
training initiatives administered by the U.S. Department of Labor have 
helped to reduce the still high unemployment rates amongst Native 
Hawaiians.
    The Native American Veterans' Housing Act provides support to 
Native Hawaiian veterans in enhancing homeownership opportunities.
    Under the authority of the National Museum of the American Indian 
Act, Native Hawaiians were the first group of Native Americans to 
repatriate the human remains of their ancestors from the Smithsonian 
Institution.
    The Native American Graves Protection and Repatriation Act provides 
Federal authorization for Native Hawaiians to repatriate human remains 
from military installations in Hawai`i and to reacquire precious Native 
Hawaiian artifacts from museums and scientific institutions across the 
country and in Europe.
    The Native American Languages Act was one of the first sources of 
Federal funding for the Native Hawaiian language immersion education 
programs that now serve as the basis not only for language immersion 
programs in Hawai`i's public schools but also as a national model for 
Native language instruction, curriculum development, and Native 
language preservation across the United States.
    The Native American Programs Act and the support it provides 
through the Administration for Native Americans for the social and 
economic development of Native communities has enabled Native Hawaiian 
farmers to recapture the large-scale practice of growing taro root--an 
integral staple of the traditional Native Hawaiian subsistence diet. As 
Native Hawaiians have been able to return to their native foods, rates 
of diabetes, hypertension, heart disease and cancer have plummeted. 
This Act has also served as a principle impetus for the start-up of 
small Native Hawaiian businesses, particularly in rural areas of 
Hawai`i, where development capital and financial institutions are 
scarce.
    The establishment of the Office of Native Hawaiian Relations in the 
U.S. Department of the Interior is one of the first institutional steps 
the Federal government has taken in fulfilling the mission of the 
Apology Resolution to effect a reconciliation between the United States 
and the Native Hawaiian people.
    And years ago, the Congress anticipated the restoration of the 
Native Hawaiian government when it enacted legislation to transfer an 
island in Hawai`i, Kaho`olawe, that had previously been used by the 
U.S. for military practice as a bombing range, to the State of Hawai`i. 
Pursuant to State statute, upon the reorganization of the Native 
Hawaiian governing entity, the Island of Kaho`olawe will be transferred 
to the Native Hawaiian government.
Conclusion
    Across this great world of ours, there is a common history that the 
aboriginal, indigenous, native people and their descendants share. It 
is a history of conquest and domination over the lives of native 
people--it is a history of disenfranchisement and forced assimilation. 
It has resulted in the demoralization of native people and fostered a 
dependence on government that is alien to the natural ways of native 
people, regardless of where they reside.
    What history has also shown is that given the opportunity, native 
people will readily and willingly cast aside the shackles of dependence 
and seize the initiative to take care of themselves and their families 
and their communities.
    Some who have not experienced a similar history or the same 
hardships question why native people seek the right to shape their own 
destinies, control their own institutions, care for their children and 
provide for their future generations through the restoration and 
recognition of their governments. Perhaps they take these rights for 
granted and assume that all Americans enjoy the same opportunities. 
Sadly, they do not.
    Through the enactment into law of H.R. 2314, the Native Hawaiian 
people seek the restoration of their government, because they know and 
have witnessed how the Federal policy of self-determination and self-
governance has not only had a dramatic impact on the ability of Native 
communities to take their rightful place in the American family of 
governments, but also how that policy has enabled Native people to grow 
and thrive.
    The Native Hawaiian people want to assure a brighter future for 
their children, and the opportunity to participate in the larger 
society on the equal footing that better health care, access to quality 
education, safe communities, and preservation of their institutions and 
traditional cultural values affords.
                                 ______
                                 

            STATEMENT OF GAIL HERIOT, COMMISSIONER, 
                U.S. COMMISSION ON CIVIL RIGHTS

    Ms. Heriot. Thank you for this opportunity to testify 
before the Committee on Natural Resources. My name is Gail 
Heriot, and I am here in my capacity as a member of the United 
States Commission on Civil Rights. Three years ago, the 
Commission issued a report opposing the proposed Native 
Hawaiian Government Reorganization Act. A strong majority 
viewed this legislation as an effort to shore up an 
unconstitutional system of special economic benefits for a 
particular racial or ethnic group. The Commission, therefore, 
recommended against it.
    I am not going to go into the century-old history that some 
of those present have talked about except to point out that it 
is both hotly disputed and beside the point. Ask me about it 
later if you wish to. At this point, let me simply note that 
the Kingdom of Hawaii was a remarkably multi-racial and 
cosmopolitan society from its inception in 1810 thanks in part 
to the man we honor today, King Kamehameha I. Throughout the 
19th century, it welcomed immigrants with the spirit of Aloha 
such that by 1893 ethnic Hawaiians were already a minority on 
the island.
    Even if the overthrow of the Hawaiian monarchy was somehow 
wrongful, it is difficult to see how establishing a tribal 
organization for ethnic Hawaiians in particular would right 
that wrong. The Kingdom of Hawaii's 1840 constitution began 
with a passage that translates, ``God has made of one blood all 
races of people who dwell upon this earth in unity and 
blessedness.'' The proposed legislation does not honor to the 
Hawaiian monarchy or to Kamehameha himself who provided the 
foundation for that multi-racial and by the standards of the 
time remarkably modern and cosmopolitan island kingdom.
    I should add that any debt to ethnic Hawaiians was expunged 
in 1959 when 94.3 percent of all Hawaiians voted to accept 
statehood and to live under the laws of the United States, very 
much including the Constitution's Equal Protection Clause, 
which I believe prohibits this kind of legislation. To 
understand why some want tribal status for ethnic Hawaiians at 
this late date, one must know a bit about Hawaiian racial 
politics.
    In an age in which racial entitlement through an 
unfortunately feature of the political landscape in so many 
parts of the country, Hawaii is in a special league. The 
State's Office of Hawaiian Affairs administers a huge public 
trust funded from revenues from millions of acres of public 
lands, which in theory should benefit all Hawaiians, but which 
actually provides benefits exclusively for ethnic Hawaiians. 
Among other things, ethnic Hawaiians are eligible for business 
loans, housing and educational programs.
    The problem for supporters of these special benefits came 
in the year 2000 when the Supreme Court decided the case of 
Rice v. Cayetano. Under Hawaiian law, only ethnic Hawaiians 
could vote for OHA trustees. Unsurprisingly, the Supreme Court 
held this to be a violation of the 15th Amendment. That ruling 
caused a bit of an uproar. If the 15th Amendment prohibits 
Hawaii from limiting voting rights to ethnic Hawaiians, the 
14th Amendment's Equal Protection Clause probably prohibits all 
or most of the system of exclusive benefits for ethnic 
Hawaiians.
    That is where the tribe idea came in. States cannot 
discriminate on the basis of race except in extraordinary 
cases, but state and Federal governments may discriminate in 
favor of or against for that matter tribal members. If ethnic 
Hawaiians could be morphed into a tribe, and the State of 
Hawaii can then transfer the Office of Hawaiian Affairs' 
function to that tribe, the system of economic benefits for 
ethnic Hawaiians can be preserved or so the advocates of H.R. 
2314 hope.
    If the Federal and state governments cannot confer 
preferential benefits upon citizens based on race, they cannot 
create a tribe for the purpose of conferring benefits based on 
race. The very act of creating the tribe is an operation 
performed on a racial group, not a tribal group. The 
Constitution's requirements cannot be bypassed that easily. 
Moreover, nothing in the Constitution authorizes Congress to 
retroactively create an Indian tribe out of individuals who are 
already full citizens and who do not have a long and continuous 
history of separate self-governance.
    While the case of the Menominee Indians has been cited as a 
counter-example, I believe it is not. The Menominee tribe was 
recognized for generations, but its recognition had been 
withdrawn during a period under which derecognition was briefly 
fashionable. During that period, they were not recognized, but 
they continued to exist as a corporation under the laws of the 
State of Wisconsin. The tribe hadn't changed, just its 
relationship to the Federal government.
    Unlike ethnic Hawaiians, they did not need the Federal 
government to help them figure out who their leaders are or who 
their members are. They knew. If ethnic Hawaiians can be 
transformed into a tribe and thereby gain the authority to 
promulgate a criminal code and punish offenders, impose and 
collect and taxes and the privilege of sovereign immunity, 
other groups are likely to want the same in the future. 
Chicanos in southern California, for example, or for that 
matter, Cajuns in Louisiana. Where is the political will going 
to come from to tell them no?
    [The prepared statement of Ms. Heriot follows:]

                Statement of The Honorable Gail Heriot, 
                United States Commission on Civil Rights

    Thank you for this opportunity to testify before the Committee on 
Natural Resources on the occasion of Kamehameha Day. My name is Gail 
Heriot and I'm here in my capacity as a member of the United States 
Commission on Civil Rights.
    The Commission on Civil Rights was established pursuant to the 
Civil Rights Act of 1957, the first civil rights statute to be passed 
by Congress since Reconstruction. It has existed in its present form--
four of its members appointed by the President and four by Congress--
since 1983. The Commission takes great pride in its role as advisor to 
Congress and the President on matters of civil rights.
    Three years ago, the Commission issued a report opposing the 
passage of the proposed Native Hawaiian Government Reorganization Act. 
Although that report focused on an earlier version of the proposed 
legislation, that earlier version was substantially similar to H.R. 
2314. Specifically, the report stated:
        ``The Commission recommends against passage of the Native 
        Hawaiian Government Reorganization Act...or any other 
        legislation that would discriminate on the basis of race or 
        national origin and further subdivide the American people into 
        discrete subgroups accorded varying degrees of privilege.''
For reasons I will discuss below, the majority of members of the 
Commission regard this bill as both bad policy and quite likely 
unconstitutional.
    What the H.R. 2314 Bill Will Do: Put as simply as possible, the 
proposed law would require the federal government to assist the 
nation's approximately 400,000 ethnic Hawaiians to organize themselves 
into a vast indigenous tribe. Ultimately, this purported tribe would 
almost certainly have powers like those of mainland Indian tribes--
including the power to make and enforce laws, promulgate a criminal 
code, punish offenders, impose and collect taxes and exercise eminent 
domain--as well as police powers and the privilege of sovereign 
immunity. If all 400,000 join, it would be by far the largest tribe in 
the nation and almost as large as some states, with about half its 
members residing in Hawaii and half scattered across the mainland.
    This reorganization of the Hawaiian political landscape would be a 
massive undertaking, The first step would be the creation of an Office 
for Native Hawaiian Affairs (``ONHA'') at the U.S. Department of 
Interior. (See Section 5.) That office would assist ``adult [ethnic 
Hawaiians] who wish to participate in the reorganization of the Native 
Hawaiian government.'' (See Section 7(b).)
    The specific task of determining who is and who is not a true 
``Native Hawaiian'' as defined in the bill would fall to a nine-member 
Commission appointed by the Secretary of the Interior. These nine 
government appointees would be required to have ``not less than 10 
years of experience in the study and determination of Native Hawaiian 
genealogy'' and ``the ability to read and translate into English 
documents written in the Hawaiian language.'' (See Section 7(b)(2)(B).) 
This replaces an earlier version of the bill requiring that members be 
ethnic Hawaiian themselves--a clear violation of the Constitution--
although the substitute language might still be challenged as intending 
to have that racially discriminatory effect. Once appointed, these 
commission members would ensure that only those who can demonstrate 
their true Native Hawaiian bloodline are permitted to join. The one-
drop rule--notorious in other contexts--would apply. (See Section 
3(10)(A).)
    Once the tribal roll is certified and published, the members, with 
ONHA's assistance, would establish an interim government, which would 
then draft organic governing documents and hold elections to establish 
the permanent government. Federal recognition will be ``extended to the 
Native Hawaiian government as the representative governing body of the 
Native Hawaiian people'' once these documents have been presented to 
the Secretary of the Interior and properly certified. (See Section 7.)
    Note that the Guaranty Clause of the U.S. Constitution, which 
guarantees all states a republican form of government, will not apply 
to the new Native Hawaiian government. See U.S. Const. art. IV, sec. 4. 
Similarly, the Titles of Nobility Clauses will not apply unless the 
Native Hawaiian government is interpreted by the courts to be a 
government that derives its powers solely from federal delegation. See 
U.S. Const. art. I, sec. 9, cl. 8 (limitation on federal power to 
confer titles of nobility); U.S. Const. art. I, sec. 10, cl. 2(similar 
limitation on state power). As H.R. 2314 asserts that ``the Native 
Hawaiian people never directly relinquished to the United States their 
claims to their inherent sovereignty as a people over their national 
lands,'' it is clear that many ethnic Hawaiians will not regard the new 
government as deriving its powers solely from federal delegation. 
Rather, they will argue that it derives its power from their own 
inherent sovereignty and is thus not subject to any of the limitations 
on power found in the U.S. Constitution, including its Bill of Rights. 
Since H.R. 2314 itself is strangely unclear on this important issue, it 
will have to be resolved in the courts or in the rough-and-tumble of 
politics. If it is resolved in favor of inherent sovereignty (limited 
or otherwise), a restoration of the Hawaiian monarchy would likely be 
legally permissible.
    Only after this new political behemoth is created will the federal 
government ``enter into negotiations'' with it over such matters as 
``the exercise of civil and criminal jurisdiction,'' ``the delegation 
of government powers and authorities...by the United States or by the 
State of Hawaii,'' ``any residual responsibilities of the United States 
and the State of Hawaii,'' and ``grievances regarding assertions of 
historic wrongs committed against Native Hawaiians by the United States 
or by the State of Hawaii.'' By then, of course, the balance of 
political power would have shifted decidedly in favor of the new 
government. It would be in a position to assert that it possesses 
inherent sovereignty and hence has powers quite apart from those 
delegated to it by the federal and state governments. Moreover, even if 
it were to concede that its powers derive solely from federal 
delegation, it will likely have the political clout to ensure that 
those powers are extensive.
    Among the issues left for negotiation is the status of the immense 
property holdings of the State of Hawaii. As the bill puts it: ``[T]he 
United States and the State of Hawaii may enter into negotiations with 
the Native Hawaiian governing entity designed to lead to an agreement 
addressing...the transfer of lands, resources and other assets and the 
protection of existing rights related to such land or resources.'' (See 
Section 8.) The bill does not specify whether the tribe will purchase 
these assets or receive them as a gift, but ethnic Hawaiian activists 
have said that they expect the latter. Indeed, as I will discuss below, 
it is the anticipated transfer of those assets that inspired H.R. 2314 
in the first place.
    Historical Arguments for H.R. 2314: Both supporters and opponents 
agree that the bill must be understood in the context of history, but 
they differ over which aspects of history are important.
    Supporters argue that the American government was complicit in the 
1893 overthrow of Queen Liliuokalani, which illegally denied not just 
the Queen's individual right of sovereignty, but the ethnic Hawaiians' 
collective right. H.R. 2314 will help remedy this wrong, they argue, by 
restoring self-governance to ethnic Hawaiians.
    The claim of American complicity has always been hotly disputed. As 
far as I know, everyone agrees that the overthrow of Queen Liliuokalani 
was accomplished mainly by white subjects of the Queen, not by the 
United States. At least some and perhaps most were native-born to the 
Islands. Some say that the crew of the U.S.S. Boston came ashore to 
assist in the overthrow at the behest of the American ambassador; 
others say they came ashore only to protect American property. 
President Grover Cleveland was among those who believed that the Boston 
crew was complicit in the overthrow--and he strongly disapproved of its 
actions. Congress, on the other hand, issued a report--called the 
Morgan Report--that came to the opposite conclusion. See Senate Report 
227, 53rd Congress, Second Session (February 26, 1894). I do not claim 
to have the ability to sort out the dispute and will not try.
    All of this is remarkably beside the point. Even if the Boston crew 
did participate in the overthrow, it would not give rise to a claim 
that ethnic Hawaiians have been robbed of their sovereignty. For one 
thing, the Kingdom of Hawaii was a monarchy. Perhaps Queen 
Liliuokalani's right of sovereignty was violated by the overthrow 
(although, given how few monarchists there are left in the world today, 
it is not clear how many would regard her right to the throne as 
inviolable). See Rex v. Booth, 2 Haw. 616 (1863)(stating that ``[t]he 
Hawaiian Government was not established by the people'' and that 
instead ``King Kamehameha III originally possessed, in his own person, 
all the attributes of sovereignty'').
    Moreover, the Kingdom of Hawaii was a multi-racial society from its 
inception in 1810. In the true spirit of Aloha for which Hawaii is 
famous, its rulers were welcoming of immigrants, who came from all over 
the world, particularly from Portugal, China, Japan, the United States, 
Great Britain, and Germany. The 1840 Constitution established a 
bicameral parliament whose members were multi-racial. By 1893, ethnic 
Hawaiians were a minority of the population. Anyone who was born on 
Hawaiian soil or who swore allegiance to the Queen was considered a 
subject of the Queen and hence ``Hawaiian,'' regardless of race. This 
was no kinship-based tribe. It is thus difficult to argue that ethnic 
Hawaiians in particular have a right to sovereignty that was violated 
by the overthrow.
    More important, all of this has been water under the bridge at 
least since 1959 when Hawaii was made a State. Contemporary accounts 
describe the inhabitants of the Islands dancing in the streets on that 
occasion. On June 27, 1959, 94.3% of Hawaiian voters cast ballots in 
favor of statehood. At that point, whatever wrongs that might have 
occurred in the past were waived. Statehood made Hawaiians of all races 
full and equal members of the greatest nation on Earth, fully entitled 
to the protection of its laws and the right to participate in its 
political process. All they had to do was agree to live under its laws, 
including its Constitution. Hawaiians of all races thought that was a 
bargain. I agree with them and so do most of my colleagues on the 
Commission on Civil Rights.
    I believe that to truly understand the motivations behind H.R. 
2314, one must look at more recent history--especially the decision of 
the U.S. Supreme Court in Rice v. Cayetano, 528 U.S. 495 (2000). The 
first version of this bill was introduced shortly after that case was 
decided. That was no coincidence.
    In Rice, the Supreme Court ruled that the Constitution's Fifteenth 
Amendment, which prohibits both the United States and the individual 
States from discriminating by race in voting rights, prohibited Hawaii 
from holding elections in which only ethnic Hawaiians could vote.
    To understand how these racially-exclusive elections came to be, 
one needs to know a little about the sad state of contemporary Hawaiian 
racial politics. The election was for trustees of the Office of 
Hawaiian Affairs (``OHA''), a department of the State of Hawaii that 
receives and administers 20% of gross revenues from much of the State's 
Ceded Lands Trust. In theory, this trust should be administered for the 
benefit of all Hawaiians, especially those in need. But for reasons 
that are both historical and political, it is actually operated for the 
benefit of ethnic Hawaiians (as well as for the benefit of the OHA 
bureaucracy itself). Among other things, ethnic Hawaiians are eligible 
for special home loans, business loans, housing and education programs. 
It is the protection of these racially-exclusive benefits that 
motivates many of the supporters of H.R. 2314.
    Supporters of the bill argue that these benefits are a perfectly 
legitimate continuation of federal policy toward ethnic Hawaiians that 
began long ago with policies like the Hawaiian Homes Commission Act of 
1921. The primary asset of the OHA public trust is the accumulated 
revenues from some 1.8 million acres of land that were once owned by 
the Kingdom of Hawaii and became public lands of the Republic of Hawaii 
after the overthrow of Queen Liliuokalani. the lands became the 
property of the Republic of Hawaii. Upon annexation, all the 
approximately 1.8 acres of public lands held by the Republic of Hawaii 
were ceded to the united States to be held ``solely for the benefit of 
the inhabitant of Hawaiian Islands for educational and other 
purposes.'' Upon statehood in 1959, some 1.4 million acres were 
returned to Hawaii to be held in a public trust for one or more of five 
purposes. One of those five purposes was ``for the betterment of the 
conditions of native Hawaiians as defined in the Hawaiian Homes 
Commission Act, 1920, as amended.'' The other purposes were (1) ``for 
the support of the public schools and other public educational 
institutions''; (2) ``for the development of farm and home ownership on 
as widespread a basis as possible;'' (3) ``for the making of public 
improvements''; and (4) ``for the provision of lands for public use.'' 
Act of March 18, 1959, section 5(f), P.L. 86-3, 73 Stat. 4.
    Activists in Hawaii have argued that revenue from the ceded lands 
should be used exclusively for the benefit of ethnic Hawaiians and 
reject the other four purposes. There is, however, no requirement that 
the State of Hawaii use the property for any particular reason among 
the five--especially not for the one reason that is constitutionally 
suspect since it involves a preference for a particular race. Indeed, 
curiously, the Hawaiian Homes Commission Act, to which the legislation 
refer applies only to individuals who are at least half-ethnic 
Hawaiian. Nevertheless, as things evolved, OHA has operated its part of 
the public trust for the benefit of anyone with ethnic Hawaiian 
ancestry. For quite some time on the OHA web site, the caption proudly 
proclaimed its racial loyalty, ``Office of Hawaiian Affairs: For the 
Betterment of Native Hawaiians.'' Only recently has this been taken 
down.
    But Rice v. Cayetano put these programs in jeopardy. Opponents of 
the benefits argue that since the Supreme Court held that racially-
exclusive OHA elections violated the 15th Amendment, the Court would 
almost certainly hold that OHA's racially-exclusive benefits violate 
the 14th Amendment's Equal Protection Clause. By legislatively 
transforming ethnic Hawaiians from a racial group to a semi-sovereign 
tribal group, Akaka bill supporters hope that prohibitions on race 
discrimination will no longer apply. See Morton v. Mancari, 417 U.S. 
535 (1974)(holding that the Bureau of Indian Affairs preference for 
tribal members did not constitute race discrimination under the Fifth 
Amendment). But for reasons I will describe below, the Constitution's 
ban on race discrimination cannot be avoided so easily.
    H.R. 2314 Is Unconstitutional: The Constitution confers upon 
Congress the power to regulate commerce with Indian tribes. 
Specifically, it provides, ``The Congress shall have the power...To 
regulate Commerce with foreign Nations, and among the several States 
and with the Indian tribes.'' U.S. Const. art. I, sec. 8, cl. 3. This 
is the sole mention of Indian tribes in Article I, which gives Congress 
its powers, and a thin reed indeed upon which to predicate a power to 
create a tribal government.
    The United States has long recognized the sovereign or quasi-
sovereign status of certain tribes. But until now, it has done so only 
with groups that have a long, continuous history of self-governance. 
Tribes were treated as semi-autonomous entities, because they were; 
they had never been brought under the full control of both federal and 
state authority. Federal policy toward them was simply an appropriate 
bow to reality. To withdraw recognition to any such group without very 
good reason would be an injustice.
    By retroactively creating a tribe out of individuals who are 
already full citizens of both the United States and the State of 
Hawaii, and who do not have a long and continuous history of separate 
self-governance, H.R. 2314 would be breaking new ground. Supporters of 
the bill have argued that the recognition of the Menominee tribe by 
Congress in 1973 is a counter example. But their argument falls short. 
In the middle of the 20th century, it became briefly fashionable to 
advocate the termination of the special status of Indian tribes under 
the law. In 1961, the Menominee tribe in Wisconsin became the first to 
have its trust relationship with the United States and its semi-
sovereign status terminated. The Menominees, however, did not simply 
melt into the population of the State of Wisconsin. The tribe 
incorporated under the laws of Wisconsin and continued to function as 
an entity. By the 1970s, the termination option was no longer 
fashionable and the Menominee tribe requested and received re-
recognition by Act of Congress.
    Unlike ethnic Hawaiians, the Menominees never lacked organization. 
Even during the brief period they lacked federal recognition, the tribe 
maintained a corporate existence under the laws of the State of 
Wisconsin. They did not need Congress to help them identify who was a 
Menominee and who was not. They knew. All they wanted or needed was 
renewal of federal recognition and of the federal trust relationship. 
H.R. 2314 requires the Secretary of Interior to appoint and assist a 
Commission to determine the initial membership on the Native Hawaiian 
tribe. To my knowledge and to the knowledge of my colleagues on the 
Commission who voted in the majority, this would be unprecedented. See 
United States v. Sandoval, 231 U.S. 28 (1913)(``it is not meant by this 
[decision] that congress may bring a community or body of people within 
the range of this power by arbitrarily calling them an Indian 
tribe....'').
    If ethnic Hawaiians can be accorded tribal status, why not Chicanos 
in the Southwest? Or Cajuns in Louisiana? Indeed, it is implausible to 
say that Congress has the power to confer this benefit only upon racial 
or ethnic groups, since ordinarily Congressional power is at its lowest 
ebb with issues that touch on race or ethnicity. Religious groups--like 
the Orthodox Jews in New York or the Amish in Pennsylvania or the 
Mormons in Utah--may be particularly interested in gaining tribal 
status, since the Establishment Clause would not apply to tribes, but 
they would nevertheless be able to exercise governmental powers. 
Becoming a tribe will thus arguably allow them to surmount the 
difficulties discussed by the Supreme Court in Board of Education of 
Kiryas Joel School District v. Grumit, 512 U.S. 687 (1994).
    Some legal scholars are already arguing that special status ought 
to be broadly available to what have been called ``dissident'' 
communities of many types. See, e.g., Mark D. Rosen, The Outer Limits 
of Community Self-Governance in Residential Associations, 
Municipalities and Indian Country: A Liberal Theory, 84 Va. L. Rev. 
1053 (1998); Mark D. Rosen, ``Illiberal'' Societal Cultures, Liberalism 
and American Constitutionalism, 12 J. Contemp. Legal Issues 803 (2002). 
Who will say no to these (and other) groups?
    Even if Congress does have the power to create a political entity 
where none currently exists, they cannot do so in this case, since the 
reason for doing so is to confer benefits on a racial group. Such a 
scheme violates the Fifth Amendment's Due Process Clause. Insofar as 
the State of Hawaii is complicit in the scheme by transferring the 
Ceded Lands to the new Native Hawaiian government, it will be violating 
the Fourteenth Amendment's Equal Protection Clause.
    Rice v. Cayetano caused an uproar in Hawaii that has not yet 
subsided. The best hope of those who favor the OHA's special programs 
that benefit ethnic Hawaiians is to transform them from programs that 
favor one race or ethnicity over another into programs that favor the 
members of one tribe over non-members. As the Supreme Court held in 
Morton v. Mancari, 417 U.S. 535 (1974), a case involving a hiring 
preference for tribal members at the U.S. Bureau of Indian Affairs, 
such a benefit is ``granted to Indians not as a discrete racial group, 
but, rather, as members of quasi-sovereign tribal entities.'' In other 
words, it's not race discrimination, it's discrimination on the basis 
of tribal membership.
    The question then boils down to this: Can the United States 
government and the State of Hawaii achieve by indirection what they 
very likely could not have achieved directly on account of the Due 
Process Clause of the Fifth Amendment and the Equal Protection Clause 
of the Fourteenth Amendment? I would respectfully submit that the 
answer is no. That is not because Morton v. Mancari is not good law. It 
is. (Note, however, that the Mancari decision may be a double-edged 
sword. If discrimination by the Bureau of Indian Affairs in favor of 
tribal members is not race discrimination then presumably 
discrimination against tribal members by a state government is not race 
discrimination.) But it cannot apply to a tribal group that does not 
yet exist. The very act of transforming ethnic Hawaiians into a tribe 
is an act performed on a racial group, not a tribal group. When, as 
here, it is done for the purpose of conferring massive benefits on that 
group, it is an act of race discrimination subject to strict scrutiny--
scrutiny that it likely cannot survive.
    The proof of all this is apparent if one simply alters the facts 
slightly. If the State of Hawaii were operating its special benefits 
programs for Whites only or for Asians only, no one would dream that 
the United States could assist them in this scheme by providing a 
procedure under which Whites or Asians could be declared a tribe.
    The Ironies of H.R. 2314: Today we honor King Kamehameha I, the man 
who united the warring tribes of the Hawaiian Islands and founded the 
Kingdom of Hawaii in 1810. Part of his success lay in the fact that, 
unlike those who had previously attempted this feat, he was able to 
take advantage of technology and expertise brought to him by 
foreigners--men like John Young and Isaac Davis, British immigrants, 
who were rewarded for their loyalty to the King with the governorships 
of Hawaii Island and Oahu respectively.
    The attitude of Hawaiian monarchs toward immigrants can be 
understood with reference to the Constitution of 1840, which was signed 
by two hands--that of Kamehameha's son King Kamehameha III and that of 
the holder of the second-highest office in the nation, Keoni Ana, the 
son of John Young. Its opening sentence, the substance of which was 
suggested by an American missionary, was based loosely on a Biblical 
verse: ``Ua hana mai ke Akua i na lahuikanaka a pau i ke koko hookahi, 
e noho like lakou ma ka honua nei me ke kuikahi, a me ka pomaikai.'' 
Translated, the passage might read: ``God has made of one blood all 
races of people to dwell upon this Earth in unity and blessedness.''
    It does no honor to King Kamehameha I or his son to attempt to 
reverse that tradition. See Kenneth Conklin, What Kamehameha Hath 
Joined Together, Let No Akaka Rip Asunder, http://www.angelfire.com/
big09a/AkakaKamehameha061109.html.
    Both during and after the Kingdom, Hawaii has been one of the best 
examples of a racial melting pot in the world. Intermarriage has been 
long been common. The Hawaiian royal family itself, including Queen 
Liliuokalani, married people of other races. Queen Emma was the 
granddaughter of John Young. As a result, the overwhelming majority of 
``Native Hawaiians'' who qualify for special benefits today (and who 
would qualify as ``Native Hawaiian'' under H.R. 2314) are of mixed 
race. This should be kept in mind whenever one hears argument that 
``we'' owe ``them'' or ``they'' owe ``us.'' We are they, and they are 
we. As Americans and as Hawaiians, we are of one blood.
    According to the statistics posted on the OHA web site, only about 
3.95% of ethnic Hawaiians living in Hawaii have what the OHA not-so-
delicately calls a ``blood quantum'' that is ``100% Hawaiian.'' Only 
34.88% have a ``50% to 99% Hawaiian'' ``blood quantum.'' And 61.17% 
have a ``blood quantum'' of less than 50%.'' These figures were 
compiled back in 1984. We have had another generation since then, and 
that tradition of intermarriage has continued and probably even 
accelerated. That's the wonderful thing about love. It transcends even 
the silliest of politics.
    The greatest irony may be that the descendants of 19th century 
white settlers on Hawaii are much more likely to be of mixed race than 
the descendants of whites, Asians or African Americans who came to 
Hawaii more recently, simply because they have had more opportunities 
for intermarriage over the years. That makes for an interesting 
situation. If those 19th century white settlers are the ones who 
wronged the 19th century ethnic Hawaiians, it is strange that we in the 
21st century would think that we're making things right again by 
conferring special benefits on their descendants. Yet that is precisely 
the logic of H.R. 2314.
    The Popularity of H.R. 2314 Among Hawaiians: Why then is H.R. 2314 
so popular among Hawaiians? The answer is that it may not be. The most 
frequently cited poll on this point was commissioned in 2003 by OHA, 
which has spent over $2 million lobbying for this legislation. That 
poll asked:
        ``The Akaka-Stevens bill proposes that Hawaiians be formally 
        recognized as the indigenous people of Hawaii, giving them the 
        same federal status as 560 Native American and Alaska Native 
        tribes already recognized by the U.S. government. Do you think 
        that Hawaiians should be recognized by the U.S. as a distinct 
        group, similar to the special recognition given to Native 
        Americans and Alaska Natives?''
Eighty-six percent (86%) of the 303 ethnic Hawaiians polls and seventy-
eight percent (78%) of the 301 ``non-Hawaiians'' said ``yes.'' But what 
are they saying ``yes'' to? ``Recognition.'' Who wouldn't want to be 
recognized?
    In contrast, the Grassroot Institute, which opposes the bill, 
conducted a poll with 39,000 responses in 2005 that asked:
        ``The Akaka Bill question, now pending in Congress, would allow 
        Native Hawaiians to create their own government not subject to 
        all the same laws, regulations and taxes that apply to other 
        citizens of Hawaii. Do you want Congress to approve the Akaka 
        Bill?''
The results of the poll appear to show that Hawaiians oppose the bill 
by a ratio of 2 to 1 (56.8%/28.2%). Even ethnic Hawaiians were against 
the bill. Forty-eight percent (48%) opposed it to only forty-three 
percent (43%) in favor and nine percent (9%) not responding.
    The Grassroot Institute poll has been criticized on the ground that 
it asks the following question directly before the question about the 
proposed Native Hawaiian Government Reorganization Act: ``Do you 
support laws that provide preferences for people groups based on their 
race?'' According to critics, such a question may skew the results. On 
other hand, the Grassroot poll probably better reflects the reality of 
the proposed law than the OHA's ``recognition'' poll. See Andrew 
Walden, Huge Poll Shows Strong Opposition to Akaka Bill, Hawaii 
Reporter (July 18, 2005), available at http://www.hawaiireporter.com/
story.aspx?afba19b6-cb1c-4377-84b0-0f62d89b7a4e
    The obvious way to resolve the discrepancy between the polls is to 
conduct a referendum on the matter. Indeed, if the citizens of Hawaii 
knew that such a vote is going to occur, it is likely that they would 
better inform themselves on the issue. That would be all to the good. 
Voters would learn, for example, that while tribal governments 
ordinarily enjoy the power of eminent domain, the power to tax and the 
power to punish members (and some non-members) for violations of their 
criminal code, they ordinarily are not limited in their authority by 
the Bill of Rights or the Fourteenth Amendment. And while the Indian 
Civil Rights Act, 25 U.S.C. sec. 1301-1303, is an effort to fill the 
void, it does not cover the full range of rights. Moreover, the remedy 
for the violation of the act is limited to habeas corpus. In other 
words, only if the tribal government has actually imprisoned the 
wronged party can the federal courts act. See Santa Clara Pueblo v. 
Martinez, 436 U.S. 49 (1978). Otherwise the wronged party's remedy must 
lie, if at all, in tribal court.
    But while bill opponents are eager for a referendum on the proposed 
legislation, supporters are reluctant. That fact alone tells a story.
    Conclusion: The Commission on Civil Rights urges the 111th Congress 
to reject this unconstitutional and unwise bill. Legislation subdivides 
the American people into discrete racial or ethnic subgroups accorded 
varying degrees of privilege has no place in Hawaiian tradition or in 
American society.
    The Commission Report is available on our website: http://
www.usccr.gov.
                                 ______
                                 

                 Supplemental Testimony of Gail Heriot

    At the request of Representative Neil Abercrombie, I hereby submit 
this supplemental testimony.
    H.R. 2314's Constitutionality: Mr. Abercrombie requested me to 
reflect, among other things, upon what could done to improve the 
likelihood that H.R. 2314 will pass constitutional muster in the 
courts. Here are my preliminary thoughts on that issue:
    As currently drafted, the bill is premised on the argument that 
``the aboriginal, indigenous, native people...who resided 
in...Hawaii...on or before January 1, 1893'' were wrongfully divested 
of ``their inherent sovereignty'' by the overthrow of Queen 
Liliuokalani a few weeks after that date. As the Supreme Court has 
already decided in Rice v. Cayetano, 528 U.S. 495 (2000), this is a 
racial group. Congress may attempt to transform it into a tribal group, 
but until it does so, it is a racial group.
    It is also a vastly under-inclusive group if the purpose of H.R. 
2314 is to remedy the alleged wrong of the overthrow. If there was any 
``people'' who exercised sovereignty in the Kingdom of Hawaii in 1893, 
it was a much larger group than the ``aboriginal, indigenous, native 
people.'' 1
---------------------------------------------------------------------------
    \1\ An alternative way to look at it is that it was that 
sovereignty was not vested in a group but in a single individual--the 
Queen. This perspective has the virtue of having been explicitly 
endorsed by the highest court in the Kingdom. See Rex v. Booth, 2 Haw. 
616 (1863)(rejecting the notion of popular sovereignty and stating that 
``[t]he Hawaiian Government was not established by the people'' and 
that instead ``King Kamehameha III originally possessed, in his own 
person, all the attributes of sovereignty''). The 1864 Constitution 
states, ``The King is Sovereign of all the Chiefs and of all the 
People; the Kingdom is His.'' Haw. Const. art. 34 (1864). Similarly, 
the 1887 Constitution states, ``The King is Sovereign of all the Chiefs 
and of all the People.'' Haw Const. art. 34 (1887). Under this view it 
was not the people of the Kingdom of Hawaii who were wronged by the 
overthrow, but the Queen herself and arguably any designated heir.
---------------------------------------------------------------------------
    The Kingdom of Hawaii was a multi-racial, cosmopolitan society that 
welcomed immigrants from China, Germany, Great Britain, Japan, 
Portugal, the United States as well as other lands. Many of the members 
of its legislature and its royal ministers were non-ethnic Hawaiian. 
Even the husband of the Queen was a non-ethnic Hawaiian. Anyone who 
swore allegiance to the monarch became a Hawaiian subject. In addition, 
just as in the United States, anyone born on the islands was a subject. 
By 1893, ethnic Hawaiians were a population minority in Hawaii. And 
although they were not yet quite a minority among actual subjects of 
the Queen (as opposed to resident aliens), given immigration, birth and 
death rates, ethnic Hawaiians would have become a minority of the 
Queen's subjects within a handful of years. 2
---------------------------------------------------------------------------
    \2\ Like all nations of the world in the 19th century, the Kingdom 
of Hawaii did not operate under a rule of universal adult suffrage. 
Women, for example, could not vote. Many men could not either. For 
example, article 62 of the 1864 Constitution contained no racial 
requirements at all, but it did contain property and income 
requirements and a literacy requirement. It read:
       ``Every male subject of the Kingdom, who shall have paid his 
taxes, who shall have attained the age of twenty years, and shall have 
been domiciled in the Kingdom for one year immediately preceding the 
election; and shall be possessed of Real Property in this Kingdom, to 
the value over and above all incumbrances of One Hundred and Fifty 
Dollars or of a Lease-hold property on which the rent is Twenty-five 
Dollars per year--or of an income of not less than Seventy-five Dollars 
per year, derived from any property or some lawful employment, and 
shall know how to read and write, if born since the year 1840, and 
shall have caused his name to be entered on the list of voters of his 
District as may be provided by law, shall be entitled to one vote for 
the Representative or Representatives of that District....''
    Haw. Const. art. 62 (1864). This meant that ethnic Hawaiians (as 
well as Hawaiian subjects of other races) who did not qualify could not 
vote.
    The 1887 Constitution or so-called ``Bayonet Constitution'' 
enhanced the property qualifications for voting for the Legislature's 
upper house (which previously had been appointed by the King) and 
eliminated such qualifications for voting for the lower house. It also 
effectively disenfranchised those of Asian descent and liberalized the 
literacy requirements imposed on voters born after 1840. See Hawaii 
Const. of 1887, art. 59 & 62.
    According to historian Ralph Simpson Kuykendall, by the time of the 
overthrow, approximately 75% of ethnic Hawaiians were without the right 
to vote owing to gender, age, property or literacy requirements. Many 
of European or American descent were also disenfranchised. 
Nevertheless, while the descendants of Portuguese, Britons, Germans and 
Americans were a strong majority of those voting in the elections for 
the House of Nobles, ethnic Hawaiians formed the majority of the 
electorate for the House of Representatives. Very large numbers of non-
ethnic Hawaiians also voted in the House elections. See Ralph Simpson 
Kuykendall, III Hawaiian Kingdom: The Kalakaua Dynasty 453 (1967).
    The United States surely has no interest in perpetuating the 
effects of the Kingdom's disenfranchisement of Asians, of women, or of 
illiterate or propertyless subjects. At the same time, it should have 
no interest in pretending that subjects of the Queen who were clearly 
enfranchised were not. If H.R. 2314 is to pass, the most promising way 
out of the racial difficulty would be to permit descendants of all 
subjects of the Kingdom of Hawaii to join the tribal entity 
contemplated in the proposal. While such an approach will not 
necessarily remedy all the constitutional defects of H.R. 2314, and may 
raise some issues, it is somewhat more likely to pass constitutional 
muster than the current version of the bill.
---------------------------------------------------------------------------
    Consequently, if the bill were constructed so as to apply not to a 
racial group, but to the group that was arguably wronged by the 
overthrow of Queen Liliuokalani, the bill's chances might be improved. 
That group would have to include the descendants of all subjects of 
Queen Liliuokalani, not just those who are descended from ``the 
aboriginal, indigenous, native people.''
    It is no more appropriate to say that only the ``aboriginal, 
indigenous, native people'' had a right of sovereignty in the Kingdom 
of Hawaii in 1893, than it is to say only descendants of the peoples 
who inhabited the United States in 1776 have a right of sovereignty 
that could be violated today. The United States has welcomed immigrants 
from around the world for hundreds of years. Many become citizens at 
their first opportunity. Their children, born on U.S. soil, are 
citizens from birth. The Kingdom of Hawaii was no different. The notion 
that only ethnic Hawaiians could have been divested of their inherent 
sovereignty is not correct. It is the application of a narrowly racial 
lens to a situation that was far more complex and nuanced.
    The Kingdom of Hawaii should be given its due in the history of 
nations. Despite numerous hardships, Hawaiians created a multi-racial 
society of remarkable modernity for its time. 3 It does them 
no honor to suggest otherwise.
---------------------------------------------------------------------------
    \3\ In addition to its geographic isolation (and as a result of 
it), Hawaii had the problem that ethnic Hawaiians had little resistance 
to diseases that had plagued much of the rest of the world for 
millennia. Yet Hawaii's leaders remained welcoming to the outside 
world.
---------------------------------------------------------------------------
    One could object to this proposed modification of H.R. 2314 on the 
ground that it could empower the descendants of the white Hawaiians who 
were responsible for the overthrow of the Queen. 4 While 
this may be regarded as less-than-optimal by some, it is defect not 
just of the proposed modification, but of H.R. 2314 in its present 
form. The Office of Hawaiian Affairs reports that as of 1984 only 3.95% 
of ethnic Hawaiians had a ``blood quantum'' level that is ``100% 
Hawaiian.'' Intermarriage between ethnic Hawaiians and persons of 
American or European extraction has been common for over 150 years. 
Given the length of time over which such intermarriage could occur, it 
stands to reason that those responsible for the overthrow are 
especially likely to have ethnic Hawaiian descendants. 5
---------------------------------------------------------------------------
    \4\ One possible solution to this problem would be to limit 
membership in the new tribe to those who could prove descent from a 
loyal subject of the Queen. But to use race as a proxy for loyalty 
would be violation of the Constitution. It is for good reason that the 
Supreme Court's decision in Korematsu v. United States, 323 U.S. 214 
(1944), suffers from a poor reputation.
    \5\ A second constitutional objection to the bill as currently 
drafted is that Congress lacks the authority to create (or re-create) a 
tribe with sovereign powers as opposed to the authority recognize a 
group with a long and continuous history of sovereignty. This is a 
difficult objection to overcome, but arguably if the bill were to take 
a more modest approach by disavowing the notion that the new entity 
will have sovereign power, its chances could improve. Under those 
circumstances, the tribal entity, if it were to have any powers that 
cannot be exercised by ordinary voluntary associations, must acquire 
those powers as the result of Congressional delegation. Congress, of 
course, cannot delegate powers that it does not have. Consequently, any 
governing entity would be governed to the same extent as the federal 
government by the Bill of Rights, including the Establishment Clause of 
the First Amendment and Takings Clause of the Fifth Amendment. H.R. 
2314, as currently drafted, is arguably not so limited.
    Two points that bear responding to came up during the hearing that 
relate to the authority of Congress to create (or re-create) a tribe 
that has not had a continuous history of sovereignty. First, one 
witness cited to United States v. Lara, 541 U.S. 193, 200 (2004) for 
the proposition that Congressional authority to legislate with respect 
to Indian tribes is ``plenary and exclusive.'' I note that Presidential 
power with respect to foreign relations is also broad. But that power 
does not give the President the right to designate a portion of New 
Jersey or its population as a foreign nation. Neither does 
Congressional power over Indian tribes give it the authority to create 
a tribe out of a group of citizens of the State of Hawaii who have not 
maintained a continuous political existence outside of the mainstream 
of state and national politics.
    Second, one of the witnesses argued that the Menominee Restoration 
Act, 25 U.S.C. sec. 903-903f, is precedent for the proposition that 
Congress has the authority to assist in the reconstitution of a tribe 
whose existence as political entity has not been continuous. The 
witness suggested that the Menominee tribe, like ethnic Hawaiians, had 
become so disorganized in the 1960s that it needed federal assistance 
to accomplish basic functions like the identification of its members 
and its leaders. This is simply untrue. The Menominee tribe (population 
approximately 4000) was ancient tribe that was recognized by the United 
States from an early date. For a brief time (1961 to 1973) in American 
history, it was not officially ``recognized'' as part of a short-lived 
federal plan to de-recognize all tribes and allow them to exist as 
voluntary associations under state law rather than as sovereign or 
semi-sovereign entities. Lack of recognition and lack of existence are 
not the same thing. During that period, the Menominee legally existed 
as Menominee Enterprises, Inc. It members were shareholders and its 
leaders officers of the corporation. The witness argued that the 
Menominees must have lost track of their membership (much as ethnic 
Hawaiian could be said to have lost track of their members today) since 
the Menominee Restoration Act required them to re-open their tribal 
roll. Note, however, that the tribal roll is a list required by the 
federal government for federal purposes. Lack of an official roll is 
not the same thing as lack of ability to identify one's members with 
reasonable accuracy. The United States doesn't have a ``national roll'' 
either; nor does Italy or Canada. And yet when necessary they are able 
to identify their members with reasonable accuracy without assistance 
from other sovereigns. And they know exactly what territory is theirs, 
often down to the square inch. The Menominees were similar. They could 
identify members better than most sovereign nations by starting with 
their earlier tribal roll and adding births since termination. They 
knew the officers, shareholders and assets of their corporation. On the 
other hand, ethnic Hawaiians have nothing that approaches this ability 
to identify group members. They have no clear leaders or institutions. 
They cannot identify tribal property. They exist only as a racial 
group.
---------------------------------------------------------------------------
    One could also object that this proposal would turn H.R. 2314 on 
its head--that the very purpose of the bill is to confer benefits on 
ethnic Hawaiians, especially to preserve the benefits they currently 
enjoy from the Office of Hawaiian Affairs and put at risk by Rice v. 
Cayetano, 528 U.S. 495 (2000). But that is precisely the purpose the 
Constitution forbids.
    The Ceded Lands: During the hearing, Mr. Abercrombie asked me about 
my statement that Hawaiian activists ``have argued that revenue from 
the ceded lands should be used exclusively for the benefit of ethnic 
Hawaiians.'' In my effort to clarify this statement, I said that I 
thought this statement was meant to refer to that part of the revenue 
that is currently being controlled by the Office of Hawaiian Affairs. I 
have since checked my sources and considered the matter more carefully.
    Some prominent Hawaiian activists have taken the position that all 
Ceded Lands revenue should go towards ethnic Hawaiians. Indeed, some 
take the position that the Ceded Lands themselves should be owned by 
ethnic Hawaiians. For example, Professor Jonathan Osorio, until 
recently the chair of the University of Hawaii Kamakakuokalani Center 
for Hawaiian Studies, has stated that the notion that Hawaii is part of 
the United States is a ``fiction'' and denounced any notion that the 
``US has some legitimacy in its claims to our land and our loyalty.'' 
6 Similarly, Dr. Kekuni Blaisdell recently referred to the 
Ceded Lands as ``our national lands'' that were seized illegally and 
subsequently transferred by ``a thief transferring the goods to someone 
else.'' 7
---------------------------------------------------------------------------
    \6\ See Trisha Kehaulani Watson, Jon Osorio's Response to the Ceded 
Lands Settlement: An Open Letter to the Lahui, The Honolulu Advertiser 
(May 29, 2009), available at: http://hehawaiiau.honadvblogs.com/2009/
05/23/jon-osorios-response-to-the-ceded-lands-settlement-an-open-
letter-to-the-lahui/.
    \7\ See Gordon Y.K. Pang, No Ceasing Ceded-Lands Fight: UH 
Professor Believes Recent Agreement Fails to Resolve All Concerns, 
Honolulu Advertiser (May 23, 2009), available at http://
www.honoluluadvertiser.com/article/20090523/NEWS23/905230321.
---------------------------------------------------------------------------
    State Representative Mele Carroll, who as Chair of the House 
Committee on Hawaiian Affairs will have an important role the transfer 
of property to the Native Hawaiian Governing Entity, has certainly been 
more circumspect. But even she has recently said things that would 
surprise some. When asked in a recent television show, ``Do you agree 
that all the Ceded Lands rightfully belong to the Hawaiians?'', she 
responded: ``I believe that all of the Hawaiian Islands belong to the 
Hawaiians. We never gave it up.'' She was then asked, ``And when the 
Akaka bill passes, will you sponsor a bill to transfer all the Ceded 
Lands to the Native Hawaiian Governing Entity?'' Rep. Carroll 
responded, ``You know, that's a question for all Hawaiians. I cannot 
speak for just one.'' While she acknowledged that non-ethnic Hawaiians 
would have to be involved too and that it would be difficult to go 
back, she nevertheless stated, ``But, you know, as a Hawaiian myself, I 
believe we never gave it up.'' 8
---------------------------------------------------------------------------
    \8\ See KBS Hawaii, Insights (recorded May 21, 2009), available at 
http://www.pbshawaii.org/ourproductions/insights_programs/
insights20090521_hawaiian.htm (italics representing the emphasis 
supplied by original speakers).
---------------------------------------------------------------------------
    One thing is clear: The negotiations over the transfer of ``land, 
resources and other assets'' pursuant to Section 8 of H.R. 2314 are 
very likely to be rocky. Over a million acres of land are at stake in 
this bilateral monopoly transaction. Even before H.R. 2314 has passed 
and the negotiations have begun, the dispute has already reached the 
United States Supreme Court once. See Hawaii v Office of Hawaiian 
Affairs, 129 S. Ct. 1436 (2009)(rejecting OHA's position that the 
Apology Resolution prohibits Hawaii from transferring even a square 
inch of the Ceded Lands prior to resolution of Hawaiian land claims). 
The issue will not be resolved quickly.
    Popular Sentiment on H.R. 2314: During the hearing on June 11, 
2009, my attention was drawn to a poll undertaken by the Office of 
Hawaiian Affairs in 2007. To the best of my recollection, I was unaware 
of this poll of 380 persons, which is now being touted as proof that 
most Hawaiians support H.R. 2314. I have now looked at it and found 
that it is in not inconsistent with my statements in my earlier written 
submission. The Office of Hawaiian Affairs first asked whether 
``Hawaiians should be recognized by the U.S. as a distinct indigenous 
group''? (Italics added.) It got a response similar to that in the 
previous Office of Hawaiian Affairs cited in my previous testimony: 
Seventy percent (70%) said yes. Everyone likes to be recognized. But 
when it asked the more relevant question: ``There has been talk of 
creating a Hawaiian governing entity that would represent the Hawaiian 
people in their dealings with the state and the federal government. Do 
you agree or disagree that an entity of some kind should be formed?'' 
This time only 51% of respondents agreed--well within the 5% margin for 
error. 9 Had the Office of Hawaiian Affairs stated 
(accurately) that this governing entity would not simply ``represent'' 
ethnic Hawaiians but would almost certainly govern them, just as the 
name implies by promulgating both civil and criminal laws and imposing 
and collecting taxes, there is no reason to suspect that the results 
would have been different from those obtained by the Grassroot 
Institute in its much larger (39,000 respondents) poll. The Grassroot 
Institute poll, conducted in 2005, found strong opposition to such a 
government. Congress, however, has no need to rely upon polls. It could 
request the State of Hawaii to hold a plebiscite on the matter--
something opponents of the bill have advocated and proponents have 
repeatedly refused to do.
---------------------------------------------------------------------------
    \{9\ http://www.oha.org/pdf/070904_Poll_Results.pdf.
---------------------------------------------------------------------------
    The Report of the U.S. Commission on Civil Rights: As I discussed 
in my initial testimony, the U.S. Commission on Civil Rights has 
recommended against the passage of an earlier and substantially similar 
version of H.R. 2314. Specifically, the report stated:
        ``The Commission recommends against passage of the Native 
        Hawaiian Government Reorganization Act...or any other 
        legislation that would discriminate on the basis of race or 
        national origin and further subdivide the American people into 
        discrete subgroups accorded varying degrees of privilege.''
    Every deliberative body should have its dissenters, and in 
Commissioner Yaki, who appeared at the June 11, 2009 hearing alongside 
me, we at the Commission on Civil Rights certainly have ours. But his 
characteristically theatrical criticisms of the procedures used to 
produce the Commission's Report are wholly unfounded.
    While there was a time in the not-too-distant past that Commission 
procedures were not as solicitous of minority views as they should have 
been, that time is now past. In 2005, not long after Gerald Reynolds 
was appointed Chair, the Commission adopted procedures designed to lean 
over backwards to ensure fairness. Our internal regulations now require 
our staff to exert their best efforts to ensure that the witnesses who 
appear at briefings represent all significant perspectives on the issue 
under consideration. Since then, staff members have always been 
successful in securing witnesses that give a full airing of views at 
our briefings, including our briefing on the proposed Native Hawaiian 
Government Reorganization Act. 10 Two witnesses testified in 
favor of that bill and two against it, making for a far more balanced 
presentation than the five-to-one hearing conducted by the House 
Committee on Natural Resources in connection with this testimony. 
Moreover, contrary to the impression Commissioner Yaki may have left, 
the Commission's report was based not just on witness testimony, but 
upon a careful review of the literature, including a briefing book 
prepared by the Commission's staff as well as extensive independent 
research by Commission members and their special assistants. Members of 
Congress can rest assured that Commission members were not under-
informed.
---------------------------------------------------------------------------
    \10\ Even on those occasions on which witnesses whose views were 
expected to be congenial to Commissioner Yaki mysteriously withdrew at 
the last moment, we have been able to move forward with a diverse 
panel--more diverse than would have been the case prior to the new 
procedures.
---------------------------------------------------------------------------
    Commissioner Yaki's suggestion that because the Commission's report 
was completed in four months (a shorter period than is typical for 
Commission reports) that it is somehow tainted is also unfounded. The 
Commission would like to be able to complete all its reports in a 
similar time frame, but often it cannot. This report in particular was 
shepherded through somewhat more quickly than average so that it could 
be issued before the time we were led to believe Congress would likely 
be voting on the matter. Under the circumstances, it would have been 
inappropriate not to move the report ahead. While Commissioner Yaki 
complains that the report was ``stripped'' of its findings and 
recommendations, what he really means is that proposed findings and 
recommendations that he may have wished to adopt were not in fact 
adopted by the Commission. Various recommendations were given due 
consideration; ultimately the Commission chose to adopt a report with 
one simple recommendation--that the proposed Native Hawaiian Government 
Reorganization Act not be adopted as law.
    Like Commissioner Yaki's criticisms of the Commission's report, his 
criticisms of the Hawaii State Advisory Committee are both unfounded 
and further evidence that no effort by the Commission towards 
bipartisanship goes unpunished. Six of the Commission's eight current 
members were appointed by President George W. Bush or by Republican 
leaders in Congress. A coalition of the Republicans and the Republican-
appointed Independents on the Commission could dominate the state 
advisory committee chartering process if those members wanted to do so. 
They have they voting strength to appoint only those whose views are 
center or right of center. But these members haven't wanted to dominate 
the process. In contrast to the practices of the Commission prior to 
their becoming the majority, the Commission's rules, which to the best 
of my knowledge were supported by all the Republican-appointed members, 
now require the membership of state advisory committees to include a 
range of perspectives. Both the major political parties must be 
represented. Some members of our Commission remember all too well what 
it was like to be shut out of the process and they are determined that 
they will not behave in the same manner as their predecessors.
    Under the new rules, the Hawaii State Advisory Committee was re-
chartered in 2007. There was nothing exceptional or irregular about 
this process or its timing. Re-charters are supposed to occur every two 
years. Of the 17 members, seven are Democrats, seven are Republicans 
and three are independent of either party. 11 In apparent 
contrast to the previous Hawaii State Advisory Committee, there is 
quite a bit of disagreement on the issues. Some members support S. 
2314; others do not. Two Republican members have recently resigned. The 
only complaints that I aware of in connection with the Hawaii State 
Advisory Committee came from members (from both political parties) who 
were concerned that Commissioner Yaki's no doubt heartfelt interest in 
the issues sometimes outstrips his dedication to proper decorum.
---------------------------------------------------------------------------
    \11\ I have no information on the political affiliations of the 
members of the previous Hawaii State Advisory Committee other than it 
had ten members when it unanimously adopted an otherwise controversial 
report entitled, ``Reconciliation at a Crossroads: The Implication of 
the Apology Resolution and Rice v. Cayetano for Federal and State 
Programs Benefiting Native Hawaiians. Its then-chair, Charles Kauluwehi 
Maxwell, Sr. (known to his radio audience as ``Uncle Charlie'') feels 
so strongly that what America has done to Hawaii ``from the overthrow 
of the monarchy through annexation and statehood'' was ``despicable'' 
that he refused to sing God Bless America at a Rotary Club luncheon to 
which he was invited to speak. See Walter Wright, Hawaiian ``Warriors'' 
Possible, Activist Says, Honolulu Advertiser (April 5, 2000). See also 
Charles K. Maxwell, Viewpoint: The People of Hawaii Should Rise Against 
Attack on Hawaiian Entitlements, The Maui News (June 26, 2002)(`` 
If...Hawaiians are removed from their entitlements, I predict that the 
Hawaiian people will rebel and take to the streets, causing Hawaii's 
economy to drop like a lead weight. This is not a threat, it's reality. 
We can be pushed only so far.'') For good or ill, the Hawaii State 
Advisory Committee, as it is currently constituted, is unlikely to 
adopt any report on a controversial issue unanimously.
---------------------------------------------------------------------------
                                 ______
                                 
    The Chairman. Mr. Yaki.

           STATEMENT OF MICHAEL YAKI, COMMISSIONER, 
                U.S. COMMISSION ON CIVIL RIGHTS

    Mr. Yaki. Thank you, Mr. Chair, Mr. Ranking Member, members 
of the Committee. My name is Michael Yaki, and unlike my 
colleague, I am from Sausalito, California, look further north, 
not San Diego. I am a Commissioner of the United States 
Commission on Civil Rights, and thank you for inviting me here 
today to participate in your hearing on H.R. 2314.
    I am here today in my individual capacity as a member of 
the commission because I voted against the release of the 
briefing report made public by the commission in May 2006, over 
three years ago, that came out in opposition to a version of 
this legislation that is being considered here today.
    I am here to testify first why, in my opinion, the report 
by the U.S. Commission on Civil Rights should be disregarded in 
any deliberation on this bill and second to reiterate a few key 
points about why this bill passes constitutional muster, why it 
is sound public policy and again why the commission was 
completely wrong on where it went. As you know, the commission 
was formed in 1957. It has had a long and proud history for 
some time.
    Typically, the commission would engage in an inquiry on a 
perceived civil rights wrong or an injustice through hundreds 
of hours of testimony, witnesses, hearings, sworn testimony, 
documents, you name it the commission would go about its work 
in a very methodical manner. The commission, in fact, produced 
the factual reports that this Congress relied upon to pass the 
1964 Civil Rights Act and the 1965 Voting Right Act and many 
other key pieces of legislation that are a part of the fabric 
of this nation today.
    In stark contrast, the report on the Native Hawaiian 
Government Reorganization Act was a product of a two-hour 
hearing with four witnesses, no field interviews, no documents 
were produced, none were examined. The Hawaii State Advisory 
Commission, which is an adjunct of the Convention on Civil 
Rights had many hearings and produced several reports on the 
issue of sovereignty over the years. None of them, and no one 
from the Hawaii State Advisory Commission was invited to 
appear.
    So forget just the ignorance of what had been done in the 
past by the Hawaii State Advisory Commission. This Congress in 
1993 through its process produced what we have termed the 
apology resolution that you have talked about here today. That 
also was not part of the briefing materials or record that was 
part of this particular meeting. In addition, subsequent to the 
apology resolution, Department of the Interior and Justice held 
reconciliation hearings in Hawaii in furtherance of the apology 
resolution. None of those materials were introduced as part of 
the record of our briefing.
    When you take this all into consideration, a truncated 
hearing, the deliberate exclusion, that is the only way I can 
put it, of relevant evidence, the failure to include the prior 
activities of the Hawaii State Advisory Committee, the 
Congress, the Departments of Justice and the Interior, 
compounded by what was truly amazingly faulty legal analysis. 
If you actually read this report, there are no findings in it.
    There are no findings of fact. There are no findings of 
law. There is only simply one recommendation, and the 
recommendation as made by my colleague here today, who by the 
way in her defense was not a member of the commission at the 
time this report was done, but that recommendation basically 
being that the commission opposes this and any other 
legislation that would discriminate on the basis of race or 
national origin, et cetera, et cetera.
    Again, this report that the commission came about with has 
no findings of fact and no findings of law. It did not include 
your own deliberations, which was passed by bipartisan 
majority. It did not include work by the Federal government. It 
did not include work of its own state advisory commission, but 
let me go on to the last point, which is what was the 
recommendation of the commission, and again it is based on a 
very faulty premise, which we have talked about here today. 
This act does not discriminate on the basis of race.
    It is in fact about native, indigenous peoples. It is about 
the Indian Commerce clause in the Constitution, not about the 
5th, the 14th or the 15th Amendment. That is not what we are 
talking about here today. In fact, if you read Cayetano and the 
other cases, they are very careful not to tread into that 
territory. Why? Because for the very simple reason that the 
very purpose of this act is to bestow upon Native Hawaiians the 
very same protections and privileges that Native Americans and 
Native Alaskans receive in this country.
    I have now gone completely off text. I am just going to 
start talking about a few things that are made up. One of the 
points made by one of the speakers talked about is this popular 
in Hawaii? Does a majority support it? I would just simply say 
that a Ward Research Poll done in 2007 continued to show 
overwhelmingly strong support for this legislation. Seventy 
percent supported the concept of creating Native Hawaiians as 
an indigenous peoples under the Constitution of the United 
States.
    Sixty-seven percent supported the continuation of the land 
benefits related from the Hawaiian Home Commissions, et cetera, 
and it goes on an on as a majority. Finally, just to state one 
simple fact about the Admissions Act. The Admissions Act itself 
recognized the special status of the Native Hawaiian people 
through the reservation of the Hawaiian Homes Commission and 
other acts. When one member talked about were there any special 
benefits to be conferred by this legislation.
    In fact, the Congress of the United States has already 
enacted over 150 different programs for Native Hawaiians in 
education, job training, whatever. There is going to be no 
expansion there at all. It is simply this: Do Native Hawaiians 
have the right and privilege as the indigenous peoples of those 
islands to be afforded the same legal status as Native 
Americans and Native Alaskans? I think the answer is clearly 
yes. Thank you for your consideration of this measure, and I 
urge its passage.
    [The prepared statement of Mr. Yaki follows:]

               Statement of Michael Yaki, Commissioner, 
                    U.S. Commission on Civil Rights

    Mr. Chair, Mr. Ranking Member, Members of the Committee, my name is 
Michael Yaki. I am a Commissioner on the United States Commission on 
Civil Rights, and thank you for inviting me here today to participate 
in your hearing on H.R. 2314, the Native Hawaiian Government 
Reorganization Act of 2009 on June 11, 2009.
    I come here today in my individual capacity as a member of the 
Commission. The reason for this distinction is that I voted against the 
release of a briefing report made public by the Commission in May 
2006--over three years ago--that came out in opposition to a version of 
the present legislation under consideration today.
    I want to thank my fellow Commissioner Arlan Melendez and his 
special assistant, Richard Schmechel, for helping to prepare my 
testimony for today, as well as my own special assistant, Alec Deull, 
whose first week on the job involved helping me to prepare as well.
    As a point of personal privilege, I would also like to mention that 
I had the honor last year of serving as the National Platform Chair for 
President Obama's campaign and the Democratic National Committee. And I 
would further like to point out that the Platform contained, among 
many, many other things, an endorsement of the Legislation that is 
being considered today.
    I am here to testify about why, in my opinion, that Report by the 
U.S. Commission on Civil Rights in opposition to this Legislation 
should be disregarded in any deliberation on this bill. Second, I wish 
to reiterate a few key points that you will hear or have heard from 
other witnesses as to why, in my opinion, this bill passes 
constitutional muster, is sound public policy, and should be passed by 
the Congress. Much of my rationale is also contained in my dissenting 
opinion to the Commission report, which I have attached as an exhibit 
to my written testimony.
CONGRESS SHOULD IGNORE THE RECOMMENDATION OF THE UNITED STATES 
        COMMISSION ON CIVIL RIGHTS WITH REGARD TO THE PRESENT 
        LEGISLATION
    First, let me deal with the Commission report. The Commission, as 
you know, was founded by President Eisenhower in 1957 and subsequently 
reauthorized by Congress over the years. Presently it is comprised of 8 
appointees--four by the President, four by the Congress, for six year 
staggered terms. At its inception, the role of the Commission was to 
engage in vigorous, in-depth fact-finding to create the factual 
predicate for action by the Executive and Legislative branches. 
Typically, the Commission would engage in an inquiry on a perceived 
injustice or violation of a civil right, relying on hundreds of hours 
of testimony and thousands of hours of staff time reviewing documents 
and interviewing witnesses. The report that would be produced would 
take similar amounts of time to formulate and analyze. But the end 
products were magnificent. The Commission's report on discrimination 
and Jim Crow laws resulted in the passage of the 1964 Civil Rights Act. 
The Commission's report on rampant voter discrimination gave Congress 
the means necessary to justify the 1965 Civil Rights Act. But I would 
be hesitant to say that the integrity and thoroughness of those years 
has been replicated in the three years that I have served on the 
Commission.
    To provide a stark contrast, the report on the Native Hawaiian 
Government Reorganization Act in 2006 was the product of a two ``hour 
briefing, with a total of 4 witnesses invited to our headquarters in 
Washington DC. No field interviews were conducted. No documents were 
produced, and none were examined. One witness who opposed the 
legislation cited a report that has been widely discredited by all 
notable historians of the time. The Commission is supposed to have 
fifty State Advisory Committees, appointed by the Commission, who serve 
as our eyes and ears and which prepare their own reports. The Hawai'i 
State Advisory Commission had, in the past, engaged in thorough public 
hearings on the islands and prepared several reports on the issue of 
sovereignty for the Native Hawaiian peoples. These reports concluded 
that the plight of the Native Hawaiians was constitutionally no 
different than that of other Native American populations in our 
country, and should be treated the same.
    But did our Commission ask a single person involved in the 
preparation of these reports to attend? No. Were these reports 
introduced into the record for consideration? No. Did members of our 
Hawai'i State Advisory Commission attempt to contact us and introduce 
these reports? Yes, but they were ignored by the majority-controlled 
staff.
    The deliberate ignorance of past practices and information was not 
confined to the state of Hawai'i. In 1993 the Congress passed a joint 
resolution, signed by President Clinton, which became Public Law 103-
50, which acknowledged the 100th year commemoration of the overthrow of 
the Kingdom of Hawai'i. Public Law 103-50 also apologized to Native 
Hawaiians for the role of the U.S. Navy in facilitating the overthrow 
of Queen Liliuokalani. In essence, the U.S. government acknowledged the 
illegal overthrow in 1893, and called upon the President to engage in a 
policy of reconciliation with Native Hawaiians. To facilitate this 
mandate, the U.S. Departments of Justice and Interior facilitated 
hearings in 1999 on reconciliation. All this information--the Apology 
Resolution, the reconciliation hearings, and the reports produced at 
the time--were never made part of the analysis of the Commission 
report.
    Finally, and perhaps most fatally--though I submit any one of these 
omissions was fatal to the integrity of the report in and of itself--
the draft report contained erroneous legal analyses of the 
Constitutional bases for recognition of Native Americans, which I will 
discuss in more detail later in my testimony.
    The convergence of a truncated hearing, the deliberate exclusion of 
relevant evidence, the failure to include prior activities not only of 
the Hawai'i State Advisory Committee but the Congress and the 
Departments of Justice and Interior, compounded by faulty legal 
analysis, led to the extraordinary step by the Commission of stripping 
the report of all findings and all recommendations. The embarrassment 
of poor scholarship, a paucity of outreach, and deliberate exclusion of 
previous Congressional and Executive action on this issue, in my 
opinion, was too much for even my most adamant colleagues to endure. In 
sum, the briefing and the report were exposed for the sham/kangaroo 
court that it was. As such, this Committee should give no credence at 
all to its sole recommendation, since it had little to no factual or 
analytical basis.
    All that remained in the report was a single, generic 
recommendation that could apply to a variety of prescriptive and 
proscriptive government actions--that the Commission opposed ``any 
legislation that would discriminate on the basis of race or national 
origin and further subdivide the American people into discrete 
subgroups accorded varying degrees of privilege.''
    The latter half of my testimony is to explain my why colleagues 
were dead wrong in applying this general principle to the Legislation 
at hand.
THE CONSTITUTIONALITY OF THE NATIVE HAWAIIAN GOVERNMENT REORGANIZATION 
        ACT
    You will hear from others far more learned than myself on the 
constitutionality of this Legislation. Yet, because my colleagues 
raised the issue, permit me a short rebuttal to what I believe is a 
specious and misplaced claim.
    The Native Hawaiian Government Reorganization Act does not purport 
to discriminate on the basis of race or national origin, or 
``subdivide'' (whatever that term means) the American people into 
subgroups. That is because the Native Hawaiian Government 
Reorganization Act is not legislation based on the 5th or 14th 
Amendments of the United States Constitution. It is, as the United 
States Supreme Court said in U.S. vs. Lara in 2004, well-settled that 
``the Constitution grants Congress broad general powers to legislate in 
respect to Indian tribes' powers that we have consistently described as 
plenary and exclusive.''
    Under the U.S. Constitution, therefore, America's indigenous, 
native people are recognized as groups that are not defined by race or 
ethnicity, but by the fact that their indigenous, native ancestors 
exercised sovereignty over the lands and areas that subsequently became 
part of the United States. It is the pre-existing sovereignty--
sovereignty that pre-existed the formation of the United States--which 
the U.S. Constitution recognizes and, on that basis, accords a special 
status to America's indigenous, native people. Let me elaborate.
    The courts have described Congress's power over Indian affairs as 
``plenary and exclusive.'' United States v. Lara, 541 U.S. 193, 200 
(2004). In one of its most recent rulings, the U.S. Supreme Court has 
described the dynamic nature of Congress' constitutional authority in 
the field of Native affairs in this manner, ``the Government's Indian 
policies, applicable to numerous tribes with diverse cultures, 
affecting billions of acres of land, of necessity would fluctuate 
dramatically as the needs of the Nation and those of the tribes changed 
over time,'' and ``such major policy changes inevitably involve major 
changes in the metes and bounds of tribal sovereignty.'' United States 
v. Lara, 541 U.S. 193, 200 (2004).
    As, over the course of our history, the term ``Indians'' has been 
used to describe the indigenous people encountered in geographic areas 
of the continental United States beyond the original thirteen states 
that were parties to the first Constitution, including the indigenous 
native people of Alaska and Hawaii, it is both important and relevant 
to revisit the origins of this term.
    Historical documents and dictionaries make clear that the terms 
``Indians'' and ``Indian tribe'' were terms derived from commonly-used 
European parlance which sought to describe the aboriginal, indigenous 
native people of the various nation states around the world as early as 
the 1500s. These were never words that the indigenous peoples applied 
to themselves. The debates of the Continental Congress and the written 
discourse amongst the Framers of the Constitution as it relates to this 
provision of the Constitution use the terms ``Indians'' and ``Indian 
tribes'' interchangeably, and it was only in the last draft of the 
Constitution that emerged from the conference that the term ``Indian 
tribes'' was ultimately adopted.
    The significance of this research cannot be underestimated. There 
are those who criticize whether Native Hawaiians comprise ``Indians'' 
within the meaning of the Constitution. Under the doubters' bizarre 
theory, Native Hawaiians are not Indians as envisioned by the Founding 
Fathers, as if only those indigenous people in situ at the founding 
were eligible for inclusion. That is clearly not the case. At the time 
of the ratification of the Constitution, the vast majority of the 
continental United States was not yet within our borders and with it 
the vast majority of Native American peoples who populated the Great 
Plains and the West. To exclude the Native Hawaiians on these grounds 
is the proverbial distinction without a difference.
    Understanding what is encompassed in these terms is significant for 
other constitutional purposes, because they describe the scope of 
Congress' authority to enact legislation affecting America's indigenous 
peoples, notwithstanding the fact that the Congress has from time to 
time chosen to define the indigenous, native people of the United 
States by reference to blood quantum or race. Indian Reorganization Act 
of 1934, 25 U.S.C. Sec. 461, et seq. And with reference to the issue of 
the use of blood quantum or race, it is Congress' constitutional 
authority under the Indian Commerce Clause that has led the Supreme 
Court to draw a legal distinction between laws enacted for the benefit 
of America's indigenous, native people and assertions that such laws, 
such as an Indian employment preference law, constitute racial 
discrimination. In the landmark case, Morton v. Mancari, 417 U.S. 535, 
94 S. Ct. 2474, 41 L.Ed.2d 290 (1974) the U.S. Supreme Court observed:
    ``Literally every piece of legislation dealing with Indian tribes 
and reservations, and certainly all legislation dealing with the BIA, 
single out for special treatment a constituency of tribal Indians 
living on or near reservations. If these laws, derived from historical 
relationships and explicitly designed to help only Indians, were deemed 
invidious racial discrimination, an entire Title of the United States 
Code (25 U.S.C.) would be effectively erased and the solemn commitment 
of the Government towards the Indians would be jeopardized.
    On numerous occasions this Court specifically has upheld 
legislation that singles out Indians for particular and special 
treatment. This unique status is of long standing....and its sources 
are diverse. As long as the special treatment can be tied rationally to 
the fulfillment of Congress' unique obligation toward the Indians, such 
legislative judgments will not be disturbed. Here, where the preference 
is reasonable and rationally designed to further Indian self-
government, we cannot say that Congress' classification violates due 
process. ``
    It is within this legal framework that the Congress has enacted 
legislation to extend federal recognition to various groups of 
America's indigenous peoples. As Professors Viet Dinh and Christopher 
Bartolomucci observed in their testimony submitted to the Commission 
for its January 20, 2006, briefing on S. 147--the 2005 version of this 
Legislation--the U.S. Supreme Court has sustained this exercise of 
Congress's constitutional authority most recently in 2004 when it 
recognized Congress' power to restore previously extinguished sovereign 
relations with Indian tribes. The Court observed that ``Congress has 
restored previously extinguished tribal status--by re-recognizing a 
Tribe whose tribal existence it previously had terminated.'' Id. ( 
citing Congress' restoration of the Menominee Tribe in 25 U.S.C. 
Sec. Sec. 903-903f). And the Court cited the 1898 annexation of Hawaii 
as an example of Congress' power ``to modify the degree of autonomy 
enjoyed by a dependent sovereign that is not a State.'' Lara, 124 S. 
Ct. at 205.
    The argument that recognition of a Native Hawaiian governing entity 
would discriminate on the basis of race conflicts with the long-
standing principles of federal law concerning the relationship between 
the United States government's and the indigenous peoples who have 
inhabited this land from time immemorial--a relationship that has long 
been recognized by Congress, the federal courts, and the Executive 
branch. Those making this argument are suggesting that Native Hawaiians 
should, and indeed must, be treated differently from the other 
indigenous peoples residing in what is now the United States. H.R. 2314 
is intended to establish parity for Native Hawaiians with the other 
indigenous peoples of America. Those who invoke the equal protection or 
due process clauses of the Constitution to oppose this legislation are 
using the very cornerstones of justice and fairness in our democracy to 
deny equal treatment to one group of indigenous people.
    It is disingenuous that the opponents of NHGRA are suggesting that 
extending this same U.S. policy to Native Hawaiians--the indigenous, 
native people of the fiftieth state--would lead to racial 
balkanization. There are over 560 federally recognized American Indian 
and Alaska Native governing entities in 49 of 50 states, coexisting 
with all peoples and federal, state and local governments. There is 
absolutely no evidence to support this notion, and seems to be spread 
simply to instill unwarranted fear and opposition to the NHGRA.
    This legislation seeks parity in U.S. policies towards the three 
indigenous, native people in the 50 states, American Indians, Alaska 
Natives and Native Hawaiians This legislation does not extend or create 
new legal boundaries, does not extend or create new constitution 
doctrine. Well within the plenary powers of the United States, and 
which has been repeatedly exercised throughout the history of our 
country, Congress may act to recognize a native, indigenous people for 
the purposes of establishing sovereign rights.
    If one accepts the majority on the U.S. Commission on Civil Rights' 
pronouncement against subdividing the country into ``discrete subgroups 
accorded varying degrees of privilege,'' then the Commission should 
immediately call for an end to any recognition of additional Indian 
tribes. Since that would clearly contravene the Constitutional 
authority of Congress, that would seem to be an unlikely--and illegal--
outcome. Given that the authority for NHGRA stems from the same 
constitutional source as that for Native Americans, then the Commission 
majority has chosen to ignore the constitutionality of the proposed 
law.
    It is also important to remember what this Legislation does not do. 
It does not, as it could, immediately create a de facto sovereign 
relationship for the Native Hawaiians. To that end, I am sure you have 
heard from constituents and advocates who believe the legislation does 
not go far enough and, indeed, from a constitutional viewpoint that may 
be true. Congress' powers are broader. This legislation is, within the 
broad powers of Congress, a process, carefully tailored and crafted by 
the authors to take into account the uniqueness of the islands of 
Hawai'i and the Native Hawaiians which may lead to self expression, 
self-determination, and restoration of sovereign rights. It is the 
right bill for the right time and the right circumstances.
CONCLUSION
    I must confess that there could be bias in my testimony. If my 
father's father was to be believed--and don't we always believe our 
grandparents?--my grandfather was the product of a union between a 
Japanese laborer and a Native Hawaiian. My grandfather was born in 
Hana, Maui, and placed in an orphanage at an early age. Unfortunately, 
the orphanage burnt down and with it, all records of my great-
grandmother.
    That was the sole connection I had to Hawai'i throughout most of my 
childhood and adult life, save for the occasional vacation on the 
beaches. But through this legislation, through working with individuals 
in Hawai'i, with people in the Office of Hawaiian Affairs, I have come 
to learn more about these special people and their place in our 
country.
    The Native Hawaiian Government Reorganization Act is about justice. 
It is about righting a wrong. It is about recognition of the identity 
and sovereignty of a people who survived attempts by our government to 
strip them of these precious rights over a hundred years ago. Far from 
the racial balkanization spread by opponents, the Act is simply a 
step--a baby step at that--towards potential limited sovereignty and 
self-governance.
    I am proud that Hawai'i is a role model for multi-cultural living 
in the United States. I am proud of how the Aloha spirit imbues the 
people, the culture, the way of life in the islands. For all the 
reasons that make Hawai'i so special, the Native Hawaiian Government 
Reorganization Act will succeed. I urge this Subcommittee, and this 
Congress, to pass H.R. 2314.
    Thank you for the privilege of testifying today.
                                 ______
                                 

                    ATTACHMENT TO WRITTEN STATEMENT:

 Dissenting Statement of Commissioner Michael J. Yaki 1 to 
        The Native Hawaiian Government Reorganization Act of 2005: A 
        Briefing Before The United States Commission on Civil Rights 
        Held in Washington, D.C., January 20, 2006
---------------------------------------------------------------------------
    \1\ Commissioner Arlan Melendez joined in the dissenting statement.
---------------------------------------------------------------------------
Preface
    As a person quite possibly with native Hawaiian blood running 
through his veins, 2 it is quite possible to say that I 
cannot possibly be impartial when it comes to this issue. And, in 
truth, that may indeed be the fact. Nevertheless, even before my 
substantive objections are made known, from a process angle there were 
serious and substantial flaws in the methodology underlying the report.
---------------------------------------------------------------------------
    \2\ My grandfather was born in Hana, Maui, and placed in an 
orphanage. The story passed down was that he was the product of a 
Japanese laborer on the islands and a Native Hawaiian. The orphanage 
records burned down some time ago, so we are unable to verify for sure 
whether he was half-native Hawaiian or not, but for anyone who knew or 
saw my grandfather, he had many Polynesian physical characteristics.
---------------------------------------------------------------------------
    First, the report relies upon a briefing from a grand total of four 
individuals, on an issue that has previously relied upon months of 
research and fact gathering that has led to two State Advisory 
Commission reports, one Department of Justice Report, and Congressional 
action (the ``Apology Resolution''), not to mention testimony before 
the Congress on the NHGRA bill itself that was never incorporated into 
the record.
    The paucity of evidence adduced is hardly the stuff upon which to 
make recommendations or findings. Even though the Commission, to its 
credit, stripped the report of all its findings for its final version, 
does that not itself lend strength and credence to the suggestion that 
the briefing was flawed from the inception? And if so flawed, how can 
the Commission opine so strongly upon a record that it could not even 
find supported now non-existent findings?
    Second, aside from ignoring the volumes of research and testimony 
that lie elsewhere and easily available to the Commission, we ignored 
soliciting advice and comment from our own State Advisory Commission of 
Hawai'i. Over the past two decades, the Hawai'i Advisory Committee to 
the United States Commission on Civil Rights (``HISAC'') has examined 
issues relating to federal and state relations with Native Hawaiians. 
As early as 1991, HISAC recommended legislation confirming federal 
recognition of Native Hawaiians. A mere five years ago, the HISAC found 
that ``the lack of federal recognition for native Hawaiians appears to 
constitute a clear case of discrimination among the native peoples 
found within the borders of this nation.'' 3 The HISAC 
concluded ``[a]bsent explicit recognition of a Native Hawaiian 
governing entity, or at least a process for ultimate recognition 
thereof, it is clear that the civil and political rights of Native 
Hawaiians will continue to erode.'' 4 The HISAC found that 
``the denial of Native Hawaiian self-determination and self-governance 
to be a serious erosion of this group's equal protection and human 
rights.'' 5 Echoing recommendations by the United States 
Departments of Justice and Interior, the HISAC ``strongly 
recommend[ed]'' that the federal government ``accelerate efforts to 
formalize the political relationship between Native Hawaiians and the 
United States.'' 6 The HISAC's long-standing position of 
support for legislation like S. 147 to protect the civil rights of 
native Hawaiians belies recent assertions that such legislation 
discriminates on the basis of race and causes further racial divide.
---------------------------------------------------------------------------
    \3\ Hawaii Advisory Committee to the U.S. Commission on Civil 
Rights, Reconciliation at a Crossroads: The Implications of the Apology 
Resolution and Rice v. Cayetano for Federal and State Programs 
Benefiting Native Hawaiians, at ix (June 2001).
    \4\ Id. at 49.
    \5\ Id.
    \6\ Id.
---------------------------------------------------------------------------
    The HISAC could and would have been a key source of information, 
especially updated information, on the state of the record. To exclude 
them from the dialogue I believe was indefensible and a deliberate 
attempt to ensure that contrary views were not introduced into the 
record.
    Third, the report as it stands now makes no sense. The lack of 
findings, the lack of any factual analysis, now makes the report the 
proverbial Emperor without clothes. The conclusion of the Commission 
stands without support, without backing, and will be looked upon, I 
believe, as irrelevant to the debate. Such is the risk one runs when 
scholarship and balance are lacking.
    Substantively, the recommendation of the Commission cannot stand 
either.
    It is not based on facts about the political status of indigenous, 
Native Hawaiians; nor Native Hawaiian history and governance; or facts 
about existing U.S. policy and law concerning Native Hawaiians. It is a 
misguided attempt to start a new and destructive precedent in U.S. 
policy toward Native Americans. The USCCR recommendation disregards the 
U.S. Constitution that specifically addresses the political 
relationship between the U.S. and the nations of Native Americans. The 
USCCR disregarded facts when the choice was made not to include HISAC 
in the January 2006 briefing on NHGRA and not utilizing the past 
relevant HISAC reports concerning Native Hawaiians based on significant 
public hearing and facts. Spring-boarding from trick phrasing and spins 
offered by ill informed experts, at least one of whom has filed suit to 
end Native Hawaiian programs established through Congress and the state 
constitution, the USCCR majority recommendation is an obvious attempt 
to treat Native Hawaiians unfairly in order to begin the process of 
destroying existing U.S. policy towards Native Americans.
Facts About Indigenous Native Hawaiians, Native Hawaiian and U.S. 
        History, and the Distinct Native Hawaiian Indigenous Political 
        Community Today
    Native Hawaiians are the indigenous people of Hawai'i, just as 
American Indians and Alaska Natives are the indigenous peoples of the 
remaining 49 states. Hawai'i is the homeland of Native Hawaiians. Over 
1,200 years prior to the arrival of European explorer James Cook on the 
Hawaiian islands, Native Hawaiians determined their own form of 
governance, culture, way of life, priorities and economic system in 
order to cherish and protect their homelands, of which they are 
physically and spiritually a part. They did so continuously until the 
illegal overthrow of their government by agents and citizens of the 
U.S. government in 1893. In fact the U.S. engaged in several treaties 
and conventions with the Native Hawaiian government, including 1826, 
1842, 1849, 1875 and 1887. Though deprived of their inherent rights to 
self-determination as a direct result of the illegal overthrow, coupled 
with subsequent efforts to terminate Native Hawaiian language, leaders, 
institutions and government functions, Native Hawaiians persevered as 
best they could to perpetuate the distinct vestiges of their culture, 
institutions, homelands and government functions in order to maintain a 
distinct community, recognizable to each other.
    Today, those living in Hawai'i recognize these aspects of the 
distinct, functioning Native Hawaiian political community easily. For 
example: the Royal Benevolent Societies established by Ali`i (Native 
Hawaiian chiefs and monarchs) continue to maintain certain Native 
Hawaiian government assigned and cultural functions; the private Ali`i 
Trusts, such as Kamehameha Schools, Queen Lili`uokalani Trust, Queen 
Emma Foundation and Lunalilo Home, joined by state government entities 
established for indigenous Hawaiians, including the Office of Hawaiian 
Affairs and the Department of Hawaiian Homelands, and Native Hawaiian 
Serving institutions such as Alu Like, Inc. and Queen Lili`uokalani 
Children's Center continue the Native Hawaiian government functions of 
caring for Native Hawaiian health, orphans and families, education, 
elders, housing economic development, governance, community wide 
communication and culture and arts; the resurgence of teaching and 
perpetuation of Native Hawaiian language and other cultural traditions; 
Native Hawaiian civic participation in matters important to the Native 
Hawaiian community are conducted extensively through Native Hawaiian 
organizations including the Association of Hawaiian Civic Clubs, the 
State Council of Hawaiian Homestead Associations, the Council for 
Native Hawaiian Advancement, Ka Lahui and various small groups pursuing 
independence; and Native Hawaiian family reunions where extended family 
members, young and old, gather to talk, eat, pass on family stories and 
history, sometimes sing and play Hawaiian music and dance hula and pass 
on genealogy.
    Indeed, if the briefing had been as consultative with the HISAC as 
it could have been, there would have been testimony that, for example, 
the Royal Order of Kamehameha, the Hale O Na Ali`I o Hawai`I, and the 
Daughters of Ka`ahumanu continue to operate under principles consistent 
with the law of the former Kingdom of Hawai`i. There would have been 
testimony that these groups went ``underground'' due to persecution but 
remained very much alive during that time. 7
---------------------------------------------------------------------------
    \7\ Communication from Quentin Kawananakoa, former member of the 
Hawai`i State Advisory Committee, May 12, 2006.
---------------------------------------------------------------------------
    The distinct indigenous, political community of Native Hawaiians is 
recognized by Congress in over 150 pieces of legislation, including the 
Hawaiian Homes Commission Act and the conditions of statehood. Native 
Hawaiians are recognized as a distinct indigenous, political community 
by voters of Hawai`i, as expressed in the Hawai`i state constitution.
    The notion introduced by opponents to the NHGRA that the Native 
Hawaiians don't ``fit'' federal regulations governing recognition of 
Native American tribes because they lacked a distinct political 
identity or continuous functional and separate government 8 
would ignore all the manifestations of such identity, existence, and 
recognition noted above.
---------------------------------------------------------------------------
    \8\ See 25 C.F.R. Sec. 83.
---------------------------------------------------------------------------
The NHGRA Does Not Set New Precedent in U.S.
    The NHGRA is in fact a measure to establish fairness in U.S. policy 
towards the three groups of Native Americans of the 50 united states--
American Indians, Alaska Natives and Native Hawaiians. The U.S. already 
provides American Indians and Alaska Natives access to a process of 
federal recognition, and the NHGRA does the same for Native Hawaiians 
based on the same constitutional and statutory standing.
I. Legal Authorities Establishing OHA/ Purpose of OHA
    Hawai`i became the fiftieth state in the union in 1959 pursuant to 
Pub. L. No. 86-3, 73 Stat. 5 (``Admission Act''). Under this federal 
law, the United States granted the nascent state title to all public 
lands within the state, except for some lands reserved for use by the 
federal Government (``public lands trust''). These lands ``together 
with the proceeds from the sale or other disposition of any such lands 
and the income therefrom, shall be held by [the State] as a public 
trust for the support of the public schools,...the conditions of native 
Hawaiians' and other purposes. 9
---------------------------------------------------------------------------
    \9\ Sec. 5 (f), 73 Stat. 6.
---------------------------------------------------------------------------
    In 1978, the multicultural residents of Hawai`i voted to amend its 
state Constitution to 1) establish the Office of Hawaiian Affairs 
(``OHA'') to ``provide Hawaiians the right to determine the priorities 
which will effectuate the betterment of their condition and welfare and 
promote the protection and preservation of the Hawaiian race, 
and...[to] unite Hawaiians as a people;'' 10 and 2) to 
establish the public lands trust created by the Admission Act as a 
constitutional obligation of the State of Hawaii to the native people. 
11
---------------------------------------------------------------------------
    \10\ 22 1 Proceedings of the Constitutional Convention of Hawai`i 
1978, Committee of the Whole Rep. 13, p. 1018 (1980)
    \11\ William Burgess, who testified at the briefing, was a delegate 
to the 1978 Constitutional Convention, yet Mr. Burgess then voiced no 
opposition to the establishment of OHA. Communication of Martha Ross, 
Office of Hawaiian Affairs, May 2006.
---------------------------------------------------------------------------
    The constitutional mandate for OHA was implemented in 1979 via the 
enactment of Chapter 10, Hawaii Revised Statutes. OHA's statutory 
purposes include ``[a]ssessing the policies and practices of other 
agencies impacting on native Hawaiians and Hawaiians,'' ``conducting 
advocacy efforts for native Hawaiians and Hawaiians,'' ``[a]pplying 
for, receiving, and disbursing, grants and donations from all sources 
for native Hawaiian and Hawaiian programs and services,'' and 
``[s]erving as a vehicle for reparations.'' 12 OHA 
administers funds derived for the most part from its statutory 20-
percent share of revenues generated by the use of the public lands 
trust. 13
---------------------------------------------------------------------------
    \12\ HRS Sec. 10-3 (4)-(6).
    \13\ HRS Sec. 10-13.5.
---------------------------------------------------------------------------
    Several legal challenges to the existence of OHA based upon the 
Fourteenth Amendment to the United States Constitution have been filed 
by various plaintiffs, some of who are represented by Mr. Burgess. Mr. 
Burgess has thus far failed to win the relief he has sought, including 
injunctive relief, either in the United States District Court for the 
District of Hawaii or the United States Court of Appeals for the Ninth 
Circuit. The denial of injunctive relief to Mr. Burgess's clients 
presents a powerful rebuttal to their claims that OHA's administration 
of its constitutional and statutory obligations to native Hawaiians and 
Hawaiians deprives all Hawaii's citizens of equal protection of law.
    Mr. Burgess describes the ``driving force'' behind the NHGRA as 
``discrimination based upon ancestry.'' Nothing could be further from 
the truth or more illogical. The ``driving force'' behind the creation 
and passage of NHGRA is the desire of the Hawaiian people, and 
virtually every political representative in the State of Hawaii to 
achieve federal recognition and legal parity with federal recognition 
as with the other two native indigenous peoples of America, namely 
American Indian Nations and Native Alaskans. There is no constitutional 
impediment to congressional federal recognition of the Hawaiian 
people.26 14
---------------------------------------------------------------------------
    \14\ See U.S. v. Lara. 541 U.S. 193 (2004).
---------------------------------------------------------------------------
    Then-United States Solicitor John Roberts (now Chief Justice 
Roberts) argued in his prior legal briefs to the United States Supreme 
Court in Rice v. Cayetano: ``[T]he Constitution, in short, gives 
Congress room to deal with the particular problems posed by the 
indigenous people of Hawaii and, at least when legislation is in 
furtherance of the obligation Congress has assumed to those people, 
that legislation is no more racial in nature than legislation 
attempting to honor the federal trust responsibility to any other 
indigenous people.'' It is, in sum, ``not racial at all.''
    Roberts went on to say:
    Congress is constitutionally empowered to deal with Hawaiians, has 
recognized such a ``special relationship,'' and--``[i]n recognition of 
th[at] special relationship''--has extended to Native Hawaiians the 
same rights and privileges accorded to American Indian, Alaska Native, 
Eskimo, and Aleut communities.'' 20 U.S.C. Sec. 7902(13) (emphasis 
added). As such, Congress has established with Hawaiians the same type 
of ``unique legal relationship'' that exists with respect to the Indian 
tribes who enjoy the ``same rights and privileges'' accorded Hawaiians 
under these laws. 42 U.S.C. Sec. 11701(19). That unique legal or 
political status--not recognition of ``tribal'' status, under the 
latest executive transmutation of what that means--is the touchstone 
for application of Mancari when, as here, Congress is constitutionally 
empowered to treat an indigenous group as such.
NHGRA Is a Matter of Indigenous Political Status and Relationship 
        Between the U.S. and the Native Hawaiian Government, and Not a 
        Racial Matter.
    Under the U.S. Constitution and federal law, America's indigenous, 
native people are recognized as groups that are not defined by race or 
ethnicity, but by the fact that their indigenous, native ancestors 
exercised sovereignty over the lands and areas that subsequently became 
part of the United States. It is the pre-existing sovereignty--
sovereignty that pre-existed the formation of the United States--which 
the U.S. Constitution recognizes and, on that basis, accords a special 
status to America's indigenous, native people.
    The tortured attempts by persons such as Mr. Burgess to distinguish 
Native Hawaiians from Native Americans ultimately fail by simple 
historical comparison. Like the Native Americans, the Native Hawaiians 
pre-dated the establishment of the United States. Like the Native 
Americans, the Native Hawaiians had their own culture, form of 
government, and distinct sense of identity. Like Native Americans, the 
United States stripped them of the ownership of their land and trampled 
over their sovereignty. The only distinction--one without a 
difference--is that unlike the vast majority of Native American tribes, 
the Native Hawaiians were not shipped off, force-marched, and relocated 
to another area far from their original homelands.27 15
---------------------------------------------------------------------------
    \15\ Although, like Native Americans, the land ceded to them under 
the Hawaiian Homes Act is, for the most part, largely uninhabitable or 
not readily susceptible to development.
---------------------------------------------------------------------------
    It is somewhat disingenuous that the opponents of NHGRA are 
suggesting that extending this same U.S. policy to Native Hawaiians, 
the indigenous, native people of the fiftieth state would lead to 
racial balkanization. There are over 560 federally recognized American 
Indian and Alaska Native governing entities in 49 of 50 states, 
coexisting with all peoples and federal, state and local governments. 
There is absolutely NO evidence to support this notion, and seems to be 
spread simply to instill unwarranted fear and opposition to the NHGRA.
NHGRA is Constitutional
    In United States v. Lara, the Supreme Court held that ``[t]he 
Constitution grants Congress broad general powers to legislate in 
respect to Indian tribes powers that we have consistently described as 
plenary and exclusive.'' In 1954, Congress terminated the sovereignty 
of the Menominee Indian Tribe in Wisconsin. In 1973, Congress exercised 
its discretion, changed its mind, and enacted the Menominee Restoration 
Act, which restored sovereignty to the Menominee Tribe.
    NHGRA does little more than follow the precedent allowed by Lara 
and exercised in the Menominee case. Reliance on federal regulations as 
gospel ignores the fact that the plenary authority of Congress has 
resulted in restoration of tribal status, in the case of the Menominee, 
and the retroactive restoration of tribal lands, as in the case of the 
Lytton Band in California. The Attorney General of Hawaii, many 
distinguished professors, and the American Bar Association all firmly 
believe that Congress has the authority to recognize Native 
Hawaiians.28 16
---------------------------------------------------------------------------
    \16\ On February 13, 2006, the policy-making body of the 400,000 
members American Bar Association (ABA) ``...voted overwhelmingly in 
favor of a resolution to urge Congress to pass legislation to establish 
a process to provide federal recognition for a Native Hawaiian 
governing entity. Such legislation, S. 147, proposed by Sen. Daniel 
Akaka, is currently pending in Congress.'' As further explained by Alan 
Van Etten, Hawai`i state delegate, ABA, in a Letter to the Editor 
published on February 21, 2006 in the Honolulu Advertiser,--...The 
ABA's mission is to be the national representative of the legal 
profession, serving the public and the profession by promoting justice, 
professional excellence and respect for the law. By passing the 
resolution, the delegates said yes to the establishment by Congress of 
a process that would provide Native Hawaiians the same status afforded 
to America's other indigenous groups, American Indians and Native 
Alaskans. The blessing by this country's largest and most prestigious 
legal organization would appear to put to rest the primary legal 
arguments advanced by this bill's opponents....The American Bar 
Association's support for Hawai'i's indigenous people sends a strong 
message that a process for Native Hawaiian recognition follows the rule 
of law and provides great impetus for Congress to take immediate action 
to pass the Akaka bill.''
---------------------------------------------------------------------------
    All that NHGRA seeks is parity in U.S. policies towards the three 
indigenous, native people in the 50 states, American Indians, Alaska 
Natives and Native Hawaiians. Under the U.S. Constitution and Federal 
law, America's indigenous, native people are recognized as groups that 
are not defined by race or ethnicity, but by the fact that their 
indigenous, native ancestors, exercised sovereignty over the lands and 
areas that subsequently became part of the United States. It is the 
pre-existing sovereignty, sovereignty that pre-existed the formation of 
the United States which the U.S. Constitution recognizes and on that 
basis, accords a special status to America's indigenous, native people.
    If one accepts the Commission's pronouncement against subdividing 
the country into ``discrete subgroups accorded varying degrees of 
privilege,'' then the Commission should immediately call for an end to 
any recognition of additional Indian tribes. Since that would clearly 
contravene the Constitutional authority of Congress, that would seem to 
be an unlikely--and illegal--outcome. Given that the authority for 
NHGRA stems from the same constitutional source as that for Native 
Americans, then the Commission majority has chosen to ignore the 
constitutionality of the proposed law.
NHGRA Has the Support of the Residents of Hawai`i as Reflected in Two 
        Scientific Polls, the Fact that the Majority of Officials 
        Elected by the Voters of Hawai`i Support NHGRA.
    The results of a scientific poll in Hawai`i showed 68 percent of 
those surveyed support the bill. 17 The statewide poll was 
taken Aug. 15-18 by Ward Research, a local public opinion firm. 
18 The results are consistent with a 2003 poll. 
19 While polls alone do not a mandate make, the consistency 
between the two polls shows that despite the best efforts of opponents 
such as Mr. Burgess, the multicultural, multiethnic residents of Hawaii 
support the recognition of Native Hawaiians and would allow them to 
take the first, tentative, steps toward recognition and sovereignty.
---------------------------------------------------------------------------
    \17\ OHA Poll Shows Strong Community Support for Akaka Bill, 
HONOLULU STAR BULLETIN, August 23, 2005.
    \18\ OHA paid for the poll of 401 randomly selected Hawai`i 
residents, which had a margin of error of plus or minus 4.9 percentage 
points.
    \19\ OHA Poll Finds Public Favors Federal Recognition, HONOLULU 
ADVERTISER, October 24, 2003. Ward Research was hired in July of 2003 
to conduct the telephone survey, in which 600 residents were contacted, 
about half of them Native Hawaiians. Federal recognition won support 
from 86 percent of the Hawaiian survey bloc, and 78 percent of the non-
Hawaiian participants. However, the idea of creating a Hawaiian 
government drew 72 percent support from Hawaiian participants and 53 
percent from non-Hawaiians.
---------------------------------------------------------------------------
    More importantly, the elected officials of Hawaii have almost 
unanimously thrown their support to the NHGRA. The NHGRA is supported 
by most of the elected officials of Hawai`i, including the entire 
Hawai`i Congressional Delegation, Governor Linda Lingle, the Senate and 
House of the State Legislature (except two members), all nine Trustees 
of the Office of Hawaiian Affairs and the mayors of all four counties 
of Hawai`i.
Conclusion
    The NHGRA is about justice. It is about righting a wrong. It is 
about recognition of the identity and sovereignty of a people who 
survived attempts by our government to strip them of these precious 
rights over a hundred years ago. Far from the racial balkanization 
spread by opponents, NHGRA is simply a step--a baby step at that--
towards potential limited sovereignty and self-governance.
    Most who live in Hawai`i know the distinct Native Hawaiian 
community, with its own language and culture, is the heart and breath 
of Hawai`i. Hawai`i, and no other place on earth, is the homeland of 
Native Hawaiians.
    On one thing the proponents and opponents of NHGRA seem to agree: 
Hawai`i is a special place in these United States, a multicultural 
society and model for racial and ethnic harmony that is unlike anywhere 
else in our country and, increasingly, the world. It is also a place 
where its multicultural residents recognize the indigenous Native 
Hawaiian culture as the host culture with a special indigenous 
political status where there are state holidays acknowledging Native 
Hawaiian monarchs, and the Hawaiian language is officially recognized.
    Perhaps it is the ``mainlanders'' lack of context and experience 
that creates a debate where, in Hawai`i, there is practically none. In 
the mainland, we think of ``Aloha'' as Hawaii Five-O, surfing, and 
brightly colored shirts that remain tucked away in the back of our 
closets. In Hawai`i, however, Aloha and the Aloha spirit is more than 
just a slogan. It is proof positive of the influence and power of the 
Native Hawaiian people and culture that exists and thrives today. In my 
lifetime, I have seen growing awareness, acceptance and usage of 
Hawaiian culture, symbols, and language. It is now almost mandatory to 
use pronunciation symbols whenever Hawaiian words are printed, whereas 
twenty years ago it was ignored. Multiculturalism in modern Hawai`i 
means that non-Native Hawaiians respect and honor the traditions of a 
people who settle on these volcanic paradises after braving thousands 
of miles of open ocean. The least we can do, the ``we'' being the 
American government which took away their islands, is to accord them 
the basic respect, recognition, and privileges we do all indigenous 
peoples of our nation. NHGRA will give meaning to the Apology 
Resolution; it will begin the healing of wounds.
    That same aloha spirit that imbues the multicultural islands of 
Hawai`i will, in my opinion, ensure that the processes contained in 
NHGRA will inure to the benefit of all the people of Hawaii. Perhaps 
more than any other place in our Union, fears of racial polarization, 
discrimination, or unequal treatment resulting from the passage of 
NHGRA should be seen as distant as the stars which the Hawaiians used 
to navigate their wa`a, their canoes, across the vastness of the seas.
                                 ______
                                 

           STATEMENT OF H. CHRISTOPHER BARTOLOMUCCI, 
           PARTNER, HOGAN & HARTSON, WASHINGTON, D.C.

    Mr. Bartolomucci. Mr. Chairman and distinguished members of 
the Committee, thank you for the opportunity and privilege to 
testify today on H.R. 2314, the Native Hawaiian Government 
Reorganization Act of 2009. My testimony will focus on the 
legal issue of Congress' constitutional authority to enact this 
legislation. The principal legal question posed by H.R. 2314 is 
whether Congress has the power to treat Native Hawaiians the 
same way it treats this country's other indigenous groups, that 
is American Indians and Native Alaskans.
    Constitutional text, Supreme Court precedent and historical 
events provide the answer. Congress' broad power to deal with 
Indian tribes allows Congress to recognize Native Hawaiians as 
having the same sovereign status as other Native Americans. 
H.R. 2314 would initiate a process through which Native 
Hawaiians would reconstitute their indigenous government.
    Before Hawaii became a state, the Kingdom of Hawaii was a 
sovereign nation recognized as such by the United States. In 
1893, American officials and the U.S. Military aided the 
overthrow of the Hawaiian monarchy. A century later, in 1993, 
the Congress in the apology resolution formally apologized to 
the Hawaiian people for the U.S. involvement in this regime 
change. Congress has ample authority to assist Native Hawaiians 
in their effort to reorganize their governing entity.
    Congress' broadest power, the power to regulate commerce 
specifically encompasses the power to regulate commerce with 
the Indian tribes. Based upon the Indian Commerce Clause and 
other constitutional provisions, the Supreme Court has 
recognized Congress' plenary power to legislate regarding 
Indian Affairs. As the Supreme Court said in the 2004 case of 
United States v. Lara, ``the Constitution grants Congress broad 
general powers to legislate in respect to Indian tribes, powers 
that we have consistently described as plenary and exclusive.''
    Congress has used the very power in the past to restore 
lost tribal sovereignty. In 1954, Congress terminated the 
sovereignty of the Menominee Indian Tribe in Wisconsin. In 
1973, Congress reversed course and enacted the Menominee 
Restoration Act, which restored sovereignty to the Menominee. 
Pointing to the Menominee Restoration Act, the Supreme Court in 
the Lara case affirmed that the Constitution authorizes 
Congress to enact legislation recognizing the existence of 
individual tribes and restoring previously extinguished tribal 
status.
    H.R. 2314 is patterned after the Menominee Restoration Act 
and would do for Native Hawaiians what Congress did for the 
Menominee. Commissioner Heriot in her remarks states that 
Congress cannot create a tribe. That is not at all what would 
be done in this legislation. This legislation would establish a 
process by which what everyone recognizes was an indigenous 
sovereign government would be reconstituted. A new tribe would 
not be created out of whole cloth.
    Furthermore, Commissioner Heriot refers to the Menominee 
experience and contends that the Menominee continued to exist, 
that the tribe hadn't changed and that the Menominee didn't 
need the Federal government to figure out who its leaders and 
members were. In fact, the act that terminated the full 
sovereignty of the Menominee was called the Menominee Indian 
Termination Act, and that was essentially the effect it had.
    It ended Federal supervision over the tribe, closed its 
membership roll and said that the members of the Menominee were 
subject to state laws the same as any other person. When 
Congress in 1973 restored the Menominee, the Menominee did need 
Federal assistance because the government had closed the roll, 
so in the Menominee Restoration Act, Congress set up a 
commission much like in the present bill that would assist the 
Menominee in voting for new leadership, and it supplied a 
definition of who would be a Menominee for purposes of voting 
to constitute the new commission.
    The comparison between the Menominee legislation and H.R. 
2314 is fairly close. H.R. 2314 does not run afoul of the 
Supreme Court's 2000 decision in Rice v. Cayetano. In Rice, the 
Court ruled the State of Hawaii could not limit the right to 
vote in the State election to Native Hawaiians, but Rice did 
not decide whether Congress may treat Native Hawaiians as it 
does other Native Americans.
    Indeed. the Court in Rice expressly declined to address the 
question 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. Some opponents 
of the legislation have pointed to Rice in support of an 
argument that the bill violates equal protection principles, 
but the Supreme Court has long held that Congressional 
legislation dealing with sovereign, indigenous groups is 
governmental, not racial in character and, therefore, is 
neither discrimination nor unconstitutional.
    When Congress enacts laws for sovereign indigenous peoples 
as it has done for Native Alaskans and Indian tribes, it does 
so on a government-to-government basis. Scores of Federal laws 
and regulations exist relating to American Indians, Native 
Alaskans and Native Hawaiians, and none has ever been struck 
down as racially discriminatory. Ultimately, a decision by 
Congress to treat Native Hawaiians like other native groups is 
a political decision and one that the Federal Courts are not 
likely to second guess.
    For example, in the 1913 case of United States v. Sandoval, 
which involved the New Mexican Pueblos, the Supreme Court ruled 
that Congress could treat the Pueblos as other Indians even 
though their culture and customs differed from that of other 
Indian tribes. The Court decided that Congress' judgment was 
not arbitrary and that judicial review should end there. H.R. 
2314 passes that legal test.
    I have submitted with my written statement a legal opinion 
that I co-authored in 2007 with Professors Viet Dinh and Neal 
Katyal regarding Congress' authority to enact the version of 
the legislation pending in 2007, which was H.R. 505. H.R. 2314 
does not differ in substance from H.R. 505. Therefore, the 
opinion that I authored with the professors on 505 also holds 
for H.R. 2314. That concludes my statement and I would, of 
course, be very happy to take the Committee's questions.
    [The prepared statement of Mr. Bartolomucci follows:]

     Statement of Christopher Bartolomucci, Hogan & Hartson L.L.P.

    Mr. Chairman, Ranking Member Hastings, and distinguished Members of 
the Committee: Thank you for the opportunity and the privilege to 
testify today on H.R. 2314, ``the Native Hawaiian Government 
Reorganization Act of 2009.'' My testimony will focus upon the legal 
issue of Congress' constitutional authority to enact H.R. 2314.
    The principal legal question presented by H.R. 2314 is whether 
Congress has the power to treat Native Hawaiians the way it treats 
other Native Americans, i.e., American Indians and Native Alaskans. 
Constitutional text, Supreme Court precedent, and historical events 
provide the answer: Congress' broad power in regard to Indian tribes 
allows Congress to recognize Native Hawaiians as having the same 
sovereign status as the other indigenous peoples of this country.
    H.R. 2314 would establish a process by which Native Hawaiians would 
reconstitute their indigenous government. Before Hawaii became a State, 
the Kingdom of Hawaii was a sovereign nation recognized as such by the 
United States. In 1893, American officials and the U.S. military aided 
the overthrow of the Hawaiian monarchy. A century later, in 1993, 
Congress formally apologized to the Hawaiian people for the U.S. 
involvement in this regime change.
    Congress has ample authority to assist Native Hawaiians in their 
effort to reorganize their governing entity. Congress' broadest 
constitutional power--the power to regulate commerce--specifically 
encompasses the power to regulate commerce ``with the Indian tribes.'' 
Based upon the Commerce Clause and other constitutional provisions, the 
Supreme Court has recognized Congress' plenary power to legislate 
regarding Indian affairs. As the Supreme Court said in 2004 in the case 
of United States v. Lara, ``the Constitution grants Congress broad 
general powers to legislate in respect to Indian tribes, powers that we 
have consistently described as ``plenary and exclusive.'' ``
    Congress has used that power in the past to restore lost tribal 
sovereignty. In 1954, Congress terminated the sovereignty of the 
Menominee Indian tribe in Wisconsin. In 1973, Congress reversed course 
and enacted the Menominee Restoration Act, which restored sovereignty 
to the Menominee. Pointing to the Menominee Restoration Act, the 
Supreme Court in Lara affirmed that the Constitution authorizes 
Congress ``to enact legislation ``recogniz[ing]...the existence of 
individual tribes'' and ``restor[ing] previously extinguished tribal 
status.'' H.R. 2314 is patterned after the Menominee Restoration Act 
and would do for Native Hawaiians what Congress did for the Menominee.
    H.R. 2314 does not run afoul the Supreme Court's 2000 decision in 
Rice v. Cayetano. In Rice, the Court ruled that the State of Hawaii 
could not limit the right to vote in a state election to Native 
Hawaiians. But Rice did not address whether Congress may treat Native 
Hawaiians as it does other Native Americans. Indeed, the Court in Rice 
expressly 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.''
    Some opponents of H.R. 2314 have pointed to Rice in support of an 
argument that the bill violates equal protection principles. But the 
Supreme Court has long held that congressional legislation dealing with 
indigenous groups is political, not racial, in character and therefore 
is neither discrimination nor unconstitutional.
    When Congress enacts laws for indigenous peoples, it does so on a 
government-to-government basis. Scores of federal laws and regulations 
exist relating to American Indians, Native Alaskans, and Native 
Hawaiians, and none has ever been struck down as racially 
discriminatory.
    Ultimately, a decision by Congress to treat Native Hawaiians like 
other native groups is a political decision--one that the federal 
courts are not likely to second guess. In the 1913 case of United 
States v. Sandoval, which involved the New Mexican Pueblos, the Supreme 
Court ruled that Congress could treat the Pueblos as Indians, even 
though their culture and customs differed from that of other Indian 
tribes. The Court decided that Congress' judgment was not arbitrary and 
that judicial review should end there. H.R. 2314 passes that legal 
test.
    For the remainder of my prepared statement, I have attached a legal 
opinion that I co-authored with Viet D. Dinh and Neal K. Katyal for the 
Office of the Hawaiian Affairs of the State of Hawaii, dated February 
26, 2007, and titled ``The Authority of Congress to establish a Process 
for Recognizing a Reconstituted Native Hawaiian Governing Entity.'' 
Although that opinion addressed the version of the legislation pending 
in 2007--H.R. 505--the present legislation, H.R. 2314, does not differ 
in substance from the 2007 version. Therefore, the opinion rendered on 
H.R. 505 also holds for H.R. 2314.
                                 ______
                                 

                 The Authority of Congress to Establish

               a Process for Recognizing a Reconstituted

                    Native Hawaiian Governing Entity

                              Prepared for

                       Office of Hawaiian Affairs

                            State of Hawaii

                                   by

                      H. Christopher Bartolomucci

                              Viet D. Dinh

                             Neal K. Katyal

                           February 26, 2007

This paper may be reproduced without permission, using customary 
attribution of source in the citation.
Executive Summary
    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 recognized 
Hawaiian monarchy in 1893 and a subsequent government acceded to U.S. 
annexation. A century later, in 1993, Congress formally apologized to 
the Hawaiian people for the U.S. involvement in this regime change.
    The U.S. Congress is now considering legislation establishing a 
process by which Native Hawaiians would reconstitute the indigenous 
government they lost to foreign intervention. The proposed Native 
Hawaiian Government Reorganization Act of 2007 (``NHGRA''), S. 310/H.R. 
505, would establish a commission to certify a roll of Native Hawaiians 
wishing to participate in the reorganization of the Native Hawaiian 
governing 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 governing documents and elect 
officers for the 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.
    Congress has the constitutional authority to enact the NHGRA and to 
recognize a Native Hawaiian governing entity as a dependent sovereign 
government within the United States--in other words, to treat Native 
Hawaiians just as it treats Native Americans and Alaska Natives.
    First, there is no question that Congress has the power to 
recognize, and restore the sovereignty of, Native American tribes. The 
Supreme Court has acknowledged Congress' plenary power--inherent in the 
Constitution and explicit in the Indian Commerce Clause, art. I, 
Sec. 8, cl. 3, and Treaty Clause, art. II, Sec. 2, cl. 2--to legislate 
regarding Native American affairs, and Congress has used that power to 
restore the relationship with tribal governments terminated by the 
United States. In 1954, Congress terminated the Menominee tribe in 
Wisconsin. In 1973, Congress enacted a law restoring the federal 
relationship with the Menominee and assisting in its reorganization. 
The bill before Congress is patterned after that law and would do for 
Native Hawaiians what Congress did for the Menominee.
    Second, Congress has the power to treat Native Hawaiians just as it 
treats Native Americans. This is because Congress' decision to treat a 
group of people as a native group, and to use its broad Indian affairs 
power to pass legislation regarding that group, is a political 
decision--one that courts are not likely to second-guess. Indeed, the 
Supreme Court has said that so long as Congress' decision to treat a 
native people as a group of Native Americans is not ``arbitrary,'' the 
courts have no say in the matter. The NHGRA passes that legal test. 
Furthermore, Congress has long considered Alaska Natives to be Native 
Americans and recognized Native Alaskan governing bodies, even though 
Alaska Natives differ from American Indians historically and 
culturally. The Supreme Court has not questioned Congress' power to do 
so. If Congress may treat Alaska Natives as a dependent sovereign 
people, it follows that Congress may do the same for Native Hawaiians.
    The principal constitutional objection to the NHGRA--that it 
impermissibly classifies on the basis of race--fails to recognize that 
congressional legislation dealing with indigenous groups is political, 
not racial, in character and therefore is neither discriminatory nor 
unconstitutional. Rice v. Cayetano, 528 U.S. 495 (2000), 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.'' Id. at 518. On those 
specific questions posed by the NHGRA, the Court could not be more 
clear or supportive of Congressional power to reaffirm the status of 
Native Hawaiians as an indigenous, self-governing people and 
reestablish a government-to-government relationship:
        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.
    United States v. Antelope, 430 U.S. 641, 645 (1977). To be sure, 
there are non-legal, policy arguments that can be voiced against the 
NHGRA, but if the Congress of the United States decides that the NHGRA 
is good policy, we believe that there is no constitutional barrier to 
Congress' enactment of the legislation.
I. The Native Hawaiian Government Reorganization Act
    The stated purpose of the NHGRA is ``to provide a process for the 
reorganization of the single Native Hawaiian governing entity and the 
reaffirmation of the special political and legal relationship between 
the United States and that Native Hawaiian governing entity for 
purposes of continuing a government-to-government relationship.'' NHGRA 
Sec. 4(b). To that end, the NHGRA authorizes the Secretary of the 
Interior to establish a Commission that will certify and maintain a 
roll of Native Hawaiians wishing to participate in the reorganization 
of the Native Hawaiian governing entity. Id. Sec. 7(b). For the purpose 
of establishing the roll, the NHGRA defines the term ``Native 
Hawaiian'' as:
        (I) an individual who is 1 of the indigenous, native people of 
        Hawaii and who is a direct lineal descendant of the aboriginal, 
        indigenous, native people who (I) resided in the islands that 
        now comprise the State of Hawaii on or before January 1, 1893; 
        and (II) occupied and exercised sovereignty in the Hawaiian 
        archipelago, including the area that now constitutes the State 
        of Hawaii; or (ii) an individual who is 1 of the indigenous, 
        native people of Hawaii and who was eligible in 1921 for the 
        programs authorized by the Hawaiian Homes Commission Act (42 
        Stat. 108, chapter 42) or a direct lineal descendant of that 
        individual.
Id. Sec. 3(10).
    Through the certification and maintenance of the roll of Native 
Hawaiians, the Commission will launch the process by which Native 
Hawaiians will set up a Native Hawaiian Interim Governing Council 
called for by the NHGRA. Id. Sec. 7(c)(2). Native Hawaiians listed on 
the roll may develop criteria for candidates to be elected to serve on 
the Council, determine the Council's structure, and elect members of 
the Council from enrolled Native Hawaiians. Id. Sec. 7(c)(2)(A).
    The NHGRA provides that the Council may conduct a referendum among 
enrolled Native Hawaiians ``for the purpose of determining the proposed 
elements of the organic governing documents of the Native Hawaiian 
governing entity.'' Id. Sec. 7(c)(2)(B)(iii)(I). Thereafter, the 
Council may hold elections for the purpose of ratifying the proposed 
organic governing documents and electing the officers of the Native 
Hawaiian governing entity. Id. Sec. 7(c)(2)(B)(iii)(IV).
II. Congress' Authority to Enact the NHGRA
    Congressional authority to enact S. 310/H.R. 505 encompasses two 
subordinate questions: First, would Congress have the power to adopt 
such legislation for members of a Native American tribe in the 
contiguous 48 states? Second, does such power extend to Native 
Hawaiians? The answer to both questions is yes.
A.  Congress' Broad Power to Deal with Indians Includes the Power to 
        Restore Sovereignty to, and Reorganize the Government of, 
        Indian Tribes.
    There is little question that Congress has the power to recognize 
Indian tribes. As the Supreme Court has explained, ``the Constitution 
grants Congress broad general powers to legislate in respect to Indian 
tribes, powers that we have consistently described as ``plenary and 
exclusive.''--United States v. Lara, 541 U.S. 193, 200 (2004). See also 
South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998) 
(``Congress possesses plenary power over Indian affairs''); Alaska v. 
Native Village of Venetie Tribal Gov't, 522 U.S. 520, 531 n.6 (1998) 
(same); 20 U.S.C. Sec. 4101(3) (finding that the Constitution ``invests 
the Congress with plenary power over the field of Indian affairs''). 
The NHGRA expressly recites and invokes this constitutional authority. 
See NHGRA Sec. 2(1) (``The Constitution vests Congress with the 
authority to address the conditions of the indigenous, native people of 
the United States.''); id. Sec. 4(a)(3).
    This broad congressional power derives from a number of 
constitutional provisions, including the Indian Commerce Clause, art. 
I, Sec. 8, cl. 3, which grants Congress the power to ``regulate 
Commerce...with the Indian Tribes,'' as well as the Treaty Clause, art. 
II, Sec. 2, cl. 2. See Lara, 541 U.S. at 200-201; Morton v. Mancari, 
417 U.S. 535, 552 (1974). The Property Clause, art. IV, Sec. 3, cl. 2, 
is also a source of congressional authority. See Alaska Pacific 
Fisheries v. United States, 248 U.S. 78, 87-88 (1918); see also Alabama 
v. Texas, 347 U.S. 272, 273 (1954) (per curiam) (``The power...to 
dispose of any kind of property belonging to the United States is 
vested in Congress without limitation.'') (internal quotation marks 
omitted). 1
---------------------------------------------------------------------------
    \1\  As discussed herein, see infra at 16, Congress in 1921 
reserved some 200,000 acres of public land for the benefit of Native 
Hawaiians. The NHGRA is related to, and would help to realize the 
purpose of, that exercise of the Property Clause power by commencing a 
process that would result in the identification of the proper 
beneficiaries of Congress' 1921 decision.
---------------------------------------------------------------------------
    Congress' legislative authority with respect to Indians also rests 
in part ``upon the Constitution's adoption of preconstitutional powers 
necessarily inherent in any Federal Government, namely powers that this 
Court has described as ``necessary concomitants of nationality.''--
Lara, 541 U.S. at 201 (citing, inter alia, United States v. Curtiss-
Wright Export Corp., 299 U.S. 304, 315-322 (1936)). See also Mancari, 
417 U.S. at 551-552 (``The plenary power of Congress to deal with the 
special problems of Indians is drawn both explicitly and implicitly 
from the Constitution itself.'').
    Plenary congressional authority to recognize Indian tribes extends 
to the restoration of the federal relationship with Native governments 
and reorganization of those governments. In Lara, the Court held that 
Congress' broad authority with respect to Indians includes the power to 
enact legislation designed to ``relax restrictions'' on ``tribal 
sovereign authority.'' 541 U.S. at 196, 202. ``From the Nation's 
beginning,'' the Court said, ``Congress' need for such legislative 
power would have seemed obvious.'' Id. at 202. The Court explained that 
``the Government's Indian policies, applicable to numerous tribes with 
diverse cultures, affecting billions of acres of land, of necessity 
would fluctuate dramatically as the needs of the Nation and those of 
the tribes changed over time,'' and ``[s]uch major policy changes 
inevitably involve major changes in the metes and bounds of tribal 
sovereignty.'' Id. The Court noted that today congressional policy 
``seeks greater tribal autonomy within the framework of a ``government-
to-government'' relationship with federal agencies.'' Id. (quoting 59 
Fed. Reg. 22,951 (1994)).
    Of particular significance to the present analysis, the Court in 
Lara specifically recognized Congress' power to restore previously 
extinguished sovereign relations with Indian tribes. The Court observed 
that ``Congress has restored previously extinguished tribal status--by 
re-recognizing a Tribe whose tribal existence it previously had 
terminated.'' Id. (citing Congress' restoration of the Menominee tribe 
in 25 U.S.C. Sec. Sec. 903-903f). And the Court cited the 1898 
annexation of Hawaii as an example of Congress' power ``to modify the 
degree of autonomy enjoyed by a dependent sovereign that is not a 
State.'' Id. Thus, when it comes to the sovereignty of Indian tribes or 
other ``domestic dependent nations,'' Cherokee Nation v. Georgia, 30 
U.S. 1, 17 (1831), the Constitution does not ``prohibit Congress from 
changing the relevant legal circumstances, i.e., from taking actions 
that modify or adjust the tribes' status.'' Lara, 541 U.S. at 205. 
Indeed, the Supreme Court has gone so far as to hold that it is not for 
the federal judiciary to ``second-guess the political branches' own 
determinations'' in such circumstances. Id. (emphasis added).
    United States v. John, 437 U.S. 634 (1978), further supports 
congressional authority to recognize reconstituted tribal governments 
and to re-establish sovereign relations with them. There, Congress' 
power to legislate with respect to the Choctaw Indians of Mississippi 
was challenged on grounds that ``since 1830 the Choctaw residing in 
Mississippi have become fully assimilated into the political and social 
life of the State'' and that ``the Federal Government long ago 
abandoned its supervisory authority over these Indians.'' Id. at 652. 
It was thus urged that to ``recognize the Choctaws in Mississippi as 
Indians over whom special federal power may be exercised would be 
anomalous and arbitrary.'' Id. The Court unanimously rejected the 
argument. ``[W]e do not agree that Congress and the Executive Branch 
have less power to deal with the affairs of the Mississippi Choctaw 
than with the affairs of other Indian groups.'' Id. at 652-653. The 
``fact that federal supervision over them has not been continuous,'' 
according to the Court, does not ``destroy[ ] the federal power to deal 
with them.'' Id. at 653.
    Congress exercised this established authority to restore the 
government-to-government relationship with the Menominee Indian tribe 
of Wisconsin, see Lara, 541 U.S. at 203-204, and it can do the same 
here. Indeed, the NHGRA government reorganization process closely 
resembles that prescribed by the Menominee Restoration Act, 25 U.S.C. 
Sec. Sec. 903-903f.
    In 1954, Congress adopted the Menominee Indian Termination Act, 25 
U.S.C. Sec. Sec. 891-902, which terminated the government-to-government 
relationship with the tribe, ended federal supervision over it, closed 
its membership roll, and provided that ``the laws of the several States 
shall apply to the tribe and its members in the same manner as they 
apply to other citizens or persons within their jurisdiction.'' 
Menominee Tribe of Indians v. United States, 391 U.S. 404, 407-410 
(1968). In 1973, Congress reversed course and adopted the Menominee 
Restoration Act, which repealed the Termination Act, restored the 
sovereign relationship with the tribe, reinstated the tribe's rights 
and privileges under federal law, and reopened its membership roll. 25 
U.S.C. Sec. Sec. 903a(b), 903b(c).
    The Menominee Restoration Act established a process for 
reconstituting the Menominee tribal leadership and organic documents 
under the direction of the Secretary of the Interior. The Restoration 
Act directed the Secretary (a) to announce the date of a general 
council meeting of the tribe to nominate candidates for election to a 
newly-created, nine-member Menominee Restoration Committee; (b) to hold 
an election to select the members of the Committee; and (c) to approve 
the Committee so elected if the Restoration Act's nomination and 
election requirements were met. Id. Sec. 903b(a). Just so with S. 310/
H.R. 505. The NHGRA authorizes the Secretary of the Interior to 
establish a Commission that will prepare and maintain a roll of Native 
Hawaiians wishing to participate in the reorganization of the Native 
Hawaiian governing entity. NHGRA Sec. 7(b). The legislation also 
provides for the establishment of a Native Hawaiian Interim Governing 
Council. Id. Sec. 7(c)(2). Native Hawaiians listed on the roll may 
develop criteria for candidates to be elected to serve on the Council; 
determine the Council's structure; and elect members of the Council 
from enrolled Native Hawaiians. Id. Sec. 7(c)(2)(A).
    The Menominee Restoration Act provided that, following the election 
of the Menominee Restoration Committee, and at the Committee's request, 
the Secretary was to conduct an election ``for the purpose of 
determining the tribe's constitution and bylaws.'' 25 U.S.C. 
Sec. 903c(a). After the adoption of such documents, the Committee was 
to hold an election ``for the purpose of determining the individuals 
who will serve as tribal officials as provided in the tribal 
constitution and bylaws.'' Id. Sec. 903c(c). Likewise, the NHGRA 
provides that the Native Hawaiian Interim Governing Council may conduct 
a referendum among enrolled Native Hawaiians ``for the purpose of 
determining the proposed elements of the organic governing documents of 
the Native Hawaiian governing entity.'' NHGRA Sec. 7(c)(2)(B)(iii)(I). 
Thereafter, the Council may hold elections for the purpose of ratifying 
the proposed organic governing documents and electing the officers of 
the Native Hawaiian governing entity. Id. Sec. 7(c)(2)(B)(iii)(IV).
    The courts have approved the process set forth in the Menominee 
Restoration Act to restore sovereignty to the Menominee Indians. See 
Lara, 541 U.S. at 203 (citing the Restoration Act as an example where 
Congress ``restored previously extinguished tribal rights''); United 
States v. Long, 324 F.3d 475, 483 (7th Cir. 2003) (concluding that 
Congress had the power to ``restor[e] to the Menominee the inherent 
sovereign power that it took from them in 1954''), cert. denied, 540 
U.S. 822 (2003). The teachings of these cases would apply to validate 
the similar process set forth in NHGRA.
B.  Congress' Power to Enact Special Legislation with Respect to 
        Indians Extends to Native Hawaiians.
    The inquiry, therefore, turns to whether Congress has the same 
authority to deal with Native Hawaiians as it does with other Native 
Americans in the contiguous 48 states. Congress has determined--and 
would determine again in passing the NHGRA--that it has such authority. 
See 42 U.S.C. Sec. 11701(17) (``The authority of the Congress under the 
United States Constitution to legislate in matters affecting the 
aboriginal or indigenous peoples of the United States includes the 
authority to legislate in matters affecting the native peoples of 
Alaska and Hawaii.''); NHGRA Sec. 4(a)(3) (finding that ``Congress 
possesses the authority under the Constitution, including but not 
limited to Article I, section 8, clause 3, to enact legislation to 
address the conditions of Native Hawaiians'').
    We conclude that courts will likely affirm these assertions of 
congressional authority. 2 As we explain below, court review 
of congressional decisions recognizing native groups qua native groups 
is extraordinarily deferential: The courts may interfere with such a 
determination only if it is ``arbitrary.'' And a congressional decision 
through the NHGRA to recognize Native Hawaiians in the same way it has 
recognized other indigenous groups cannot fairly be said to be 
arbitrary. To the contrary, it is supported not just by extensive 
congressional fact-finding (which standing alone would suffice to 
insulate the statute from court review for arbitrariness), but also by 
numerous other factors, including the parallels between the United 
States' historical treatment of Native Hawaiians and its treatment of 
other Native Americans.
---------------------------------------------------------------------------
    \2\ The Supreme Court has not decided this question. Rather, its 
last pronouncement on the issue, in Rice v. Cayetano, expressly 
declined to answer 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.'' 528 U.S. at 518. See 
infra at 24-25.
---------------------------------------------------------------------------
i.  Courts review a congressional decision to recognize a native group 
        only for arbitrariness.
    Under United States v. Sandoval, 231 U.S. 28 (1913), Congress has 
the authority to recognize and deal with native groups pursuant to its 
Indian affairs power, and courts possess only a very limited role in 
reviewing the exercise of such congressional authority. In Sandoval, 
the Supreme Court rejected the argument that Congress lacked authority 
to treat the Pueblos of New Mexico as Indians and that the Pueblos were 
``beyond the range of congressional power under the Constitution.'' Id. 
at 49.
    The Court first observed:
        Not only does the Constitution expressly authorize Congress to 
        regulate commerce with the Indian tribes, but long continued 
        legislative and executive usage and an unbroken current of 
        judicial decisions have attributed to the United States...the 
        power and duty of exercising a fostering care and protection 
        over all dependent Indian communities within its borders, 
        whether within its original territory or territory subsequently 
        acquired, and whether within or without the limits of a state.
Id. at 45-46. The Court went on to say that, although ``it is not meant 
by this that Congress may bring a community or body of people within 
the range of this power by arbitrarily calling them an Indian tribe,'' 
nevertheless, ``the questions whether, to what extent, and for what 
time they shall be recognized and dealt with as dependent tribes 
requiring the guardianship and protection of the United States are to 
be determined by Congress, and not by the courts.'' Id. at 46. Applying 
those principles, the Supreme Court concluded that Congress' 
``assertion of guardianship over [the Pueblos] cannot be said to be 
arbitrary, but must be regarded as both authorized and controlling.'' 
Id. at 47. And the Court so held even though the Pueblos differed (in 
the Court's view) in some respects from other Indians: They were not 
``nomadic in their inclinations''; they were ``disposed to peace''; 
they ``liv[ed] in separate and isolated communities''; their lands were 
``held in communal, fee-simple ownership under grants from the King of 
Spain''; and they possibly had become citizens of the United States. 
Id. at 39.
    Sandoval thus holds, first, that Congress, in exercising its 
constitutional authority to deal with Indian tribes, may determine 
whether a ``community or body of people'' is amenable to that 
authority, and, second, that unless Congress acts ``arbitrarily,'' 
courts do not second-guess Congress' determination. The courts have 
employed this approach in a number of other cases. See United States v. 
Holliday, 3 Wall. 407, 419 (1866) (``If by [the political branches] 
those Indians are recognized as a tribe, this court must do the 
same.''); Long, 324 F.3d at 482 (``[W]hile we assume that Congress 
neither can nor would confer the status of a tribe onto a random group 
of people, we have no doubt about congressional power to recognize an 
ancient group of people for what they are.''). 3
---------------------------------------------------------------------------
    \3\ See also Lara, 541 U.S. at 205 (federal judiciary should not 
``second-guess the political branches' own determinations'' with 
respect to ``the metes and bounds of tribal autonomy''); United States 
v. McGowan, 302 U.S. 535, 538 (1938) (``Congress alone has the right to 
determine the manner in which this country's guardianship over the 
Indians shall be carried out'').
---------------------------------------------------------------------------
ii.  Congress' determination that Native Hawaiians are amenable to its 
        constitutional authority over native groups is amply supported 
        and cannot fairly be deemed arbitrary.
    The language of the NHGRA contains a congressional determination 
that Native Hawaiians are amenable to its plenary authority over native 
groups. See, e.g., NHGRA Sec. 4(a)(3). It cannot be said that this 
determination is an arbitrary exercise of Congress' power to recognize 
and deal with this Nation's native peoples. This is so for at least 
four reasons, explained in more detail below: First, Congress has made 
extensive findings of fact, both in the NHGRA and other legislation, 
that support its determination. Second, Congress has long treated 
Native Hawaiians like other Native Americans, and no Act of Congress 
doing so has been struck down by the courts. Third, Native Hawaiians 
bear striking similarities to Alaska Natives, the latter of whom are 
treated by Congress as Native Americans. And finally, Congress has 
recognized that the United States owes moral obligations to Native 
Hawaiians; such obligations constitute an implicit basis for 
congressional power to legislate as to indigenous peoples.
Congress' findings as to Native Hawaiians, and Native Hawaiian history, 
        preclude a claim of arbitrariness.
    The NHGRA expressly finds that Native Hawaiians ``are indigenous, 
native people of the United States,'' NHGRA Sec. 2(2); that the United 
States recognized Hawaii's sovereignty prior to 1893, id. Sec. 2(4); 
that the United States participated in the overthrow of the Hawaiian 
government in 1893, id.Sec. 2(13); and that ``the Native Hawaiian 
people never directly relinquished to the United States their claims to 
their inherent sovereignty as a people over their national lands,'' id. 
The statute further finds that that Native Hawaiians continue to reside 
on native lands set aside for them by the U.S. government, ``to 
maintain other distinctly native areas in Hawaii,'' and ``to maintain 
their separate identity as a single distinct native community through 
cultural, social, and political institutions,'' id. Sec. Sec. 2(7), 
2(11), 2(15); see also U.S. Department of Justice & U.S. Department of 
the Interior, From Mauka to Makai: The River of Justice Must Flow 
Freely, Report on the Reconciliation Process Between the Federal 
Government and Native Hawaiians at 4 (Oct. 23, 2000) (hereinafter ``The 
Reconciliation Report'') (finding that ``the Native Hawaiian people 
continue to maintain a distinct community and certain governmental 
structures and they desire to increase their control over their own 
affairs and institutions''). Finally, the NHGRA finds that Native 
Hawaiians through the present day have maintained a link to the Native 
Hawaiians who exercised sovereign authority in the past. See id. 
Sec. 2(22)(A) (``Native Hawaiians have a cultural, historic, and land-
based link to the aboriginal, indigenous, native people who exercised 
sovereignty over the Hawaiian Islands''); id. Sec. 2(22)(B).
    These findings all support the conclusion that Native Hawaiians, 
and the Native Hawaiian experience, are similar to other Native 
Americans in important ways. Indeed, the NHGRA reflects some of 
Congress' prior determinations that Native Hawaiians are like other 
Native Americans. See NHGRA Sec. 2(2) (finding that Native Hawaiians 
``are indigenous, native people of the United States''); id. 
Sec. 2(20)(B) (Congress ``has identified Native Hawaiians as a distinct 
group of indigenous, native people of the United States within the 
scope of its authority under the Constitution, and has enacted scores 
of statutes on their behalf''); id. Sec. 4(a)(1); Native American 
Languages Act, 25 U.S.C. Sec. 2902(1) (``The term ``Native American'' 
means an Indian, Native Hawaiian, or Native American Pacific 
Islander''); American Indian Religious Freedom Act, 42 U.S.C. Sec. 1996 
(declaring it to be the policy of the United States ``to protect and 
preserve for American Indians their inherent right of freedom to 
believe, express, and exercise the traditional religions of the 
American Indian, Eskimo, Aleut, and Native Hawaiians''); 42 U.S.C. 
Sec. 11701(1) (finding that ``Native Hawaiians comprise a distinct and 
unique indigenous people with a historical continuity to the original 
inhabitants of the Hawaiian archipelago whose society was organized as 
a Nation prior to the arrival of the first nonindigenous people in 
1778'').
    These extensive factual findings are crucial because they render 
implausible any argument that Congress' decision to treat Native 
Hawaiians like other Native Americans is without a rational basis. Like 
in Sandoval, whatever differences there may be between Native Hawaiians 
and other Native Americans, it cannot be said in light of Congress' 
findings that it is ``bring[ing] a community or body of people within 
the range of [its] power by arbitrarily calling them an Indian tribe.'' 
231 U.S. at 46. There is nothing arbitrary about such a legislative 
choice; it reflects a long pattern of Congress' dealings with Native 
Hawaiians.
    Native Hawaiian history confirms that the congressional 
determination in the NHGRA is both supportable and supported. Although 
unique in some respects, the Native Hawaiian story is in other ways 
very similar to the story of all Native Americans. By the time Captain 
Cook, the first white traveler to Hawaii, ``made landfall in Hawaii on 
his expedition in 1778, the Hawaiian people had developed, over the 
preceding 1,000 years or so, a cultural and political structure of 
their own. They had well-established traditions and customs and 
practiced a polytheistic religion.'' Rice, 528 U.S. at 500. Hawaiian 
society, the Court noted, was one ``with its own identity, its own 
cohesive forces, its own history.'' Id. As late as 1810, ``the islands 
were united as one kingdom under the leadership of an admired figure in 
Hawaiian history, Kamehameha I.'' Id. at 501.
    During the 19th century, the United States established a 
government-to-government relationship with the Kingdom of Hawaii. 
Between 1826 and 1887, the two nations executed a number of treaties 
and conventions. See id. at 504. But in 1893, ``a group of 
professionals and businessmen, with the active assistance of John 
Stevens, the United States Minister to Hawaii, acting with the United 
States Armed Forces, replaced the monarchy [of Queen Liliuokalani] with 
a provisional government.'' Id. at 505. In 1894, the U.S.-created 
provisional government then established the Republic of Hawaii. See id. 
In 1898, President McKinley signed the Newlands Resolution, which 
annexed Hawaii as a U.S. territory. See id.; Territory of Hawaii v. 
Mankichi, 190 U.S. 197, 209-211 (1903) (discussing the annexation of 
Hawaii); Lara, 541 U.S. at 203-204 (citing the annexation of Hawaii as 
an example of Congress' adjustment of the autonomous status of a 
dependent sovereign). Under the Newlands Resolution, the Republic of 
Hawaii ceded all public lands to the United States, and the revenue 
from such lands was to be ``used solely for the benefit of the 
inhabitants of the Hawaiian Islands for educational and other public 
purposes.'' Rice, 528 U.S. at 505.
    In 1921, concerned about the deteriorating conditions of the Native 
Hawaiian people, Congress passed the Hawaiian Homes Commission Act, 
``which set aside about 200,000 acres of the ceded public lands and 
created a program of loans and long-term leases for the benefit of 
native Hawaiians.'' Id. at 507. In 1959, Hawaii became the 50th State 
of the United States. In connection with its admission to the Union, 
Hawaii agreed to adopt the Hawaiian Homes Commission Act as part of the 
Hawaii Constitution, and the United States adopted legislation 
transferring title to some 1.4 million acres of public lands in Hawaii 
to the new State, which lands and the revenues they generated were by 
law to be held ``as a public trust'' for, among other purposes, ``the 
betterment of the conditions of Native Hawaiians.'' Id. (quoting 
Admission Act, Pub. L. No. 86-3, Sec. 5(f), 73 Stat. 5, 6).
    In 1993, a century after the Kingdom of Hawaii was replaced with 
the active involvement of the U.S. Minister and the American military, 
``Congress passed a Joint Resolution recounting the events in some 
detail and offering an apology to the native Hawaiian people.'' Id. at 
505; see Apology Resolution, Pub. L. No. 103-150, 107 Stat. 1510 
(1993). In the Apology Resolution, Congress both ``acknowledge[d] the 
historical significance of this event which resulted in the suppression 
of the inherent sovereignty of the Native Hawaiian people'' and issued 
a formal apology to Native Hawaiians ``for the overthrow of the Kingdom 
of Hawaii on January 17, 1893 with the participation of agents and 
citizens of the United States, and the deprivation of the rights of 
Native Hawaiians to self-determination.'' Id. Sec. Sec. 1, 3, 107 Stat. 
1513.
    In short, the story of the Native Hawaiian people is the story of 
an indigenous people having a distinct culture, religion, and 
government. Contact with the West led to a period of government-to-
government treaty making with the United States; the involvement of the 
U.S. government in overthrowing the Native Hawaiian government; the 
establishment of the public trust relationship between the U.S. 
government and Native Hawaiians; and, finally, political union with the 
United States. Given the parallels between the history of Native 
Hawaiians and other Native Americans, Congress has ample basis to 
conclude that its power to deal with the Native Hawaiian community is 
coterminous with its power to deal with American Indian tribes. Cf. 
Long, 324 F.3d at 482 (``This case does not involve a people unknown to 
history before Congress intervened....[W]e have no doubt about 
congressional power to recognize an ancient group of people for what 
they are.'').
Congress' long history of treating Native Hawaiians, and Alaska 
        Natives, like Native Americans further supports its 
        determination in the NHGRA.
    Congress' authority to treat Native Hawaiians like American Indians 
is further supported by the numerous statutes Congress has enacted 
doing just that. See, e.g., Hawaiian Homes Commission Act, 42 Stat. 108 
(1921); Native Hawaiian Education Act, 20 U.S.C. Sec. Sec. 7511-7517; 
Native Hawaiian Health Care Act, 42 U.S.C. Sec. 11701(19) (noting 
Congress' ``enactment of federal laws which extend to the Hawaiian 
people the same rights and privileges accorded to American Indian, 
Alaska Native, Eskimo, and Aleut communities''); see also Statement of 
U.S. Representative Ed Case, Hearing Before the Senate Committee on 
Indian Affairs on S. 147, the Native Hawaiian Government Reorganization 
Act, at 2-3 (March 1, 2005) (``[O]ver 160 federal statutes have enacted 
programs to better the conditions of Native Hawaiians in areas such as 
Hawaiian homelands, health, education and economic development, all 
exercises of Congress' plenary authority under our U.S. Constitution to 
address the conditions of indigenous peoples.'') (prepared text) 
(hereinafter, ``Senate Indian Affairs Committee Hearing on S. 147''); 
cf. Apology Resolution, Pub. L. No. 103-150, 107 Stat. 1510 (1993). 
4 For example, The Augustus F. Hawkins-Robert T. Stafford 
Elementary and Secondary School Improvement Amendments of 1988, Pub. L. 
No. 100-297, 102 Stat. 130, authorized ``supplemental programs to meet 
the unique educational needs of Native Hawaiians'' and federal grants 
to Native Hawaiian Educational Organizations to help increase 
educational attainment among Native Hawaiians. 20 U.S. C. 
Sec. Sec. 4902-03, 4905 (1988). The Hawaiian Homelands Homeownership 
Act of 2000 provides governmental loan guarantees ``to Native Hawaiian 
families who otherwise could not acquire housing financing.'' Pub. L. 
No. 106-569, Sec. Sec. 511-14, 114 Stat. 2944, 2966-67, 2990 (2000). 
Congress has also enacted legislation authorizing employment 
preferences for Native Hawaiians. See, e. g., 1995 Department of 
Defense Appropriations Act, Pub. L. No. 103-335, 108 Stat. 2599, 2652 
(1994) (``In entering into contracts with private entities to carry out 
environmental restoration and remediation of Kaho'olawe Island...the 
Secretary of the Navy shall...give especial preference to businesses 
owned by Native Hawaiians.''). See also Drug Abuse Prevention, 
Treatment and Rehabilitation Act, 21 U.S.C. Sec. 1177(d) (involving 
grant applications aimed at combating drug abuse and providing: ``The 
Secretary shall encourage the submission of and give special 
consideration to applications under this section to programs and 
projects aimed at underserved populations such as racial and ethnic 
minorities, Native Americans (including Native Hawaiians and Native 
American Pacific Islanders), youth, the elderly, women, handicapped 
individuals, and families of drug abusers.''); Workforce Investment Act 
of 1998, 29 U.S.C. Sec. 2911(a) (``The purpose of this section is to 
support employment and training activities for Indian, Alaska Native, 
and Native Hawaiian individuals''); American Indian Religious Freedom 
Act, 42 U.S.C. Sec. 1996 (``it shall be the policy of the United States 
to protect and preserve for American Indians their inherent right of 
freedom to believe, express, and exercise the traditional religions of 
the American Indian, Eskimo, Aleut, and Native Hawaiians, including but 
not limited to access to sites, use and possession of sacred objects, 
and the freedom to worship through ceremonials and traditional 
rites.''); Native American Programs Act of 1974, 42 U.S.C. 
Sec. Sec. 2991-92, 2991a (including Native Hawaiians in a variety of 
Native American financial and cultural benefit programs: ``The purpose 
of this subchapter is to promote the goal of economic and social self-
sufficiency for American Indians, Native Hawaiians, other Native 
American Pacific Islanders (including American Samoan Natives), and 
Alaska Natives.''); Comprehensive Alcohol Abuse and Alcoholism 
Prevention, Treatment, and Rehabilitation Act, 42 U.S.C. 
Sec. 4577(c)(4) (giving preference to grant applications aimed at 
combating drug abuse: ``The Secretary shall encourage the submission of 
and give special consideration to applications under this section for 
programs and projects aimed at underserved populations such as racial 
and ethnic minorities, Native Americans (including Native Hawaiians and 
Native American Pacific Islanders), youth, the elderly, women, 
handicapped individuals, public inebriates, and families of 
alcoholics.''); 20 U.S.C. Sec. 4441 (providing funding for Native 
Hawaiian arts and cultural development); Older Americans Act of 1965, 
42 U.S.C. Sec. 3001 et seq., 45 C.F.R. Sec. 1328.1 (2004) (establishing 
a ``program...to meet the unique needs and circumstances of Older 
Hawaiian Natives''). No court has struck down any of these numerous 
legislative actions as unconstitutional. 5
---------------------------------------------------------------------------
    \4\ In Ahuna v. Department of Hawaiian Home Lands, 640 P.2d 1161 
(Hawaii 1982), the Hawaii Supreme Court assessed the trust 
responsibilities that the Hawaiian Homes Commission owes to ``native 
Hawaiians.'' The court specifically relied on federal Indian law 
principles regarding lands set aside by Congress in trust for the 
benefit of native Americans. The court reasoned that ``[e]ssentially, 
we are dealing with relationships between the government and aboriginal 
people. Reason thus dictates that we draw the analogy between native 
Hawaiian homesteaders and other native Americans.'' Id. at 1169.
    \5\ The vast number of federal and state programs that could be 
called into question by a ruling against the NHGRA renders even smaller 
the chance of a successful court challenge. It is not a persuasive 
answer to claim that all of these statutes, too, are unconstitutional. 
``Every legislative act is to be presumed to be a constitutional 
exercise of legislative power until the contrary is clearly 
established.'' Close v. Glenwood Cemetery, 107 U.S. 466, 475 (1883); 
see also Reno v. Condon, 528 U.S. 141, 148 (2000).
---------------------------------------------------------------------------
    That Congress has power to enact such special legislation for 
Native Hawaiians is made still clearer by congressional action dealing 
with Alaska Natives, who--like Native Hawaiians--differ from American 
Indian tribes anthropologically, historically, and culturally. In 1971, 
Congress adopted the Alaska Native Claims Settlement Act (``ANCSA''), 
43 U.S.C. Sec. Sec. 1601-1629h, which is predicated on the view that 
congressional power to deal with Alaska Natives is coterminous with its 
plenary authority relating to American Indian tribes. See 43 U.S.C. 
Sec. 1601(a) (finding a need for settlement of all claims ``by Natives 
and Native groups of Alaska''); id. Sec. 1602(b) (defining ``Native'' 
as a U.S. citizen ``who is a person of one-fourth degree of more Alaska 
Indian...Eskimo, or Aleut blood, or combination thereof.''); id. 
Sec. 1604(a) (directing the Secretary of the Interior to prepare a roll 
of all Alaskan Natives). The Supreme Court has never questioned the 
authority of Congress to enact such legislation. See Native Village of 
Venetie, supra; Morton v. Ruiz, 415 U.S. 199, 212 (1974) (quoting 
passage of Brief for Petitioner the Secretary of the Interior referring 
to ``Indians in Alaska and Oklahoma''); see also Pence v. Kleppe, 529 
F.2d 135, 138 n.5 (9th Cir. 1976) (when the term ``Indians'' appears in 
federal statutes, that word ``as applied in Alaska, includes Aleuts and 
Eskimos''). If Congress has authority to enact special legislation 
dealing with Alaska Natives, it follows that Congress has the same 
authority with respect to Native Hawaiians.
The U.S. government's complicity in overthrowing the Hawaiian Kingdom 
        reinforces Congress' moral and legal authority to enact the 
        NHGRA.
    Finally, Congress could easily conclude that its moral and legal 
authority to establish a process for the reorganization of the Native 
Hawaiian governing entity also derives from the role played by the 
United States--in particular U.S. Minister John Stevens, aided by 
American military forces--in bringing a forcible end to the Kingdom of 
Hawaii in 1893.
    As Congress recounted in the Apology Resolution, Stevens in January 
1893 ``conspired with a small group of non-Hawaiian residents of the 
Kingdom of Hawaii, including citizens of the United States, to 
overthrow the indigenous and lawful Government of Hawaii.'' 107 Stat. 
1510. In pursuit of that objective, Stevens ``and the naval 
representatives of the United States caused armed naval forces of the 
United States to invade the sovereign Hawaii nation on January 16, 
1893, and to position themselves near the Hawaiian Government buildings 
and the Iolani Palace to intimidate Queen Liliuokalani and her 
Government.'' Id. See also S. Rep. No. 108-85, 108th Cong., 2d Sess. 11 
(2003) (on Stevens' orders, ``American soldiers marched through 
Honolulu, to a building known as Ali`iolani Hale, located near both the 
government building and the palace''); Rice, 528 U.S. at 504-505. The 
next day, the Queen issued a statement indicating that she would yield 
her authority ``to the superior force of the United States of America 
whose Minister Plenipotentary, His Excellency John L. Stevens, has 
caused United States troops to be landed at Honolulu.'' 107 Stat. 1511. 
The United States, quite simply, effected regime change in Hawaii 
because ``without the active support and intervention by the United 
States diplomatic and military representatives, the insurrection 
against the Government of Queen Liliuokalani would have failed for lack 
of popular support and insufficient arms.'' Id. On December 18, 1893, 
President Cleveland described the Queen's overthrow ``as an ``act of 
war,'' committed with the participation of a diplomatic representative 
of the United States and without the authority of Congress.'' Id.
    Given the role of United States agents in the overthrow of the 
Kingdom of Hawaii, Congress could conclude that its ``unique obligation 
toward the Indians,'' Mancari, 417 U.S. at 555, extends to Native 
Hawaiians. Congress' power to enact special legislation dealing with 
native people of America is derived from the Constitution ``both 
explicitly and implicitly.'' Id. at 551. See Lara, 541 U.S. at 201 (to 
the extent that, through the late 19th Century, Indian affairs were a 
feature of American military and foreign policy, ``Congress' 
legislative authority would rest in part...upon the Constitution's 
adoption of preconstitutional powers necessarily inherent in any 
Federal Government''). The Supreme Court has explained that the United 
States has a special obligation toward the Native Americans--a native 
people who were overcome by force--and that this obligation carries 
with it the authority to legislate with the welfare of Native Americans 
in mind. As the Court said in Board of County Commissioners of Creek 
County v. Seber, 318 U.S. 705 (1943):
        From almost the beginning the existence of federal power to 
        regulate and protect the Indians and their property against 
        interference even by a state has been recognized. This power is 
        not expressly granted in so many words by the Constitution, 
        except with respect to regulating commerce with the Indian 
        tribes, but its existence cannot be doubted. In the exercise of 
        the war and treaty powers, the United States overcame the 
        Indians and took possession of their lands, sometimes by force, 
        leaving them an uneducated, helpless and dependent people 
        needing protection against the selfishness of others and their 
        own improvidence. Of necessity the United States assumed the 
        duty of furnishing that protection and with it the authority to 
        do all that was required to perform that obligation * * *.
Id. at 715 (citation omitted).
    In the case of Native Hawaiians, the maneuverings of the U.S. 
Minister and the expression of U.S. military force contributed to the 
overthrow of the Kingdom of Hawaii and the ouster of her Queen. The 
events of 1893 cannot be undone; but their import extends to this day, 
imbuing Congress with a special obligation and the inherent authority 
to restore some semblance of the self-determination then stripped from 
Native Hawaiians. Certainly it cannot be said that Congress' conclusion 
to this effect would be arbitrary. In the words of Justice Jackson,
        The generation of Indians who suffered the privations, 
        indignities, and brutalities of the westward march of the 
        whites have gone to the Happy Hunting Ground, and nothing that 
        we can do can square the account with them. Whatever survives 
        is a moral obligation resting on the descendants of the whites 
        to do for the descendants of the Indians what in the conditions 
        of this twentieth century is the decent thing.
Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 
355 (1945) (concurring opinion). 6
---------------------------------------------------------------------------
    \6\ NHGRA opponents have argued that the ``Republic of Hawaii,'' 
which succeeded the Kingdom of Hawaii after Queen Liliuokalani was 
overthrown, extinguished native Hawaiians' claims to tribal status, and 
that as a result there was no Native Hawaiian sovereignty at the time 
of U.S. annexation. But this argument relies on the notion that the 
United States did not play a role in the Queen's ouster, and that the 
Republic of Hawaii was a legitimate government. Congress has explicitly 
found to the contrary, see, e.g., Apology Resolution, and that 
congressional finding is due substantial deference from the courts.
---------------------------------------------------------------------------
III. Objections to the NHGRA
    In 2005, hearings on a previous incarnation of the NHGRA drew 
several speakers who objected to the legislation on constitutional 
grounds. We have considered these objections and do not believe they 
would be persuasive to a court considering the NHGRA's lawfulness.
A.  As an Exercise of Congress' Indian Affairs Powers, the NHGRA Is Not 
        an Impermissible Classification Violative of Equal Protection.
    The principal constitutional objection to the NHGRA--that it 
classifies U.S. citizens on the basis of race, in violation of the 
constitutional guarantee of equal protection--would depart from long-
standing precedent with respect to both Native Americans and equal 
protection.
    Those who level this objection have cited Rice v. Cayetano, supra, 
for support. But Rice is inapposite for two reasons: (1) It did not 
concern Congress' special powers to employ political classifications 
when dealing with Native Americans but rather concerned a state 
legislative determination; and (2) it was limited to the unique 15th 
Amendment voting context.
    First, in Rice, the Court held that the Fifteenth Amendment to the 
Constitution did not allow the State of Hawaii to limit to Native 
Hawaiians eligibility to vote in elections to choose trustees for the 
Office of Hawaiian Affairs, a state governmental agency. See Rice, 528 
U.S. at 523-524. In this instance, by contrast, the reorganized Native 
Hawaiian governing entity will be neither a United States nor a state 
governmental body, but rather the governing entity of a sovereign 
native people. Because the NHGRA is an exercise of Congress' Indian 
affairs powers, the legislation is ``political rather than racial in 
nature,'' Mancari, 417 U.S. at 553 n.24, and under well-settled 
precedent it does not violate the Constitution's equal protection 
guarantees. As the Court explained:
        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....Federal regulation of Indian tribes...is governance 
        of once-sovereign political communities; it is not to be viewed 
        as legislation of a--``racial'' group consisting of 
        Indians....'' Morton v. Mancari, supra, at 553 n.24.
United States v. Antelope, 430 U.S. at 645-646 (footnote omitted); see 
also Washington v. Confederated Bands & Tribes of the Yakima Indian 
Nation, 439 U.S. 463, 500-501 (1979) (``It is settled that ``the unique 
legal status of Indian tribes under federal law'' permits the Federal 
Government to enact legislation singling out tribal Indians, 
legislation that might otherwise be constitutionally offensive.'') 
(quoting Mancari, 417 U.S. at 551-552). In short, Rice simply has no 
application here. See Kahawaiolaa v. Norton, 386 F.3d 1271, 1279 (9th 
Cir. 2004) (``Rice does not bear on the instant case because...[w]hile 
Congress may not authorize special treatment for a class of tribal 
Indians in a state election, Congress certainly has the authority to 
single out ``a constituency of tribal Indians'' in legislation 
``dealing with Indian tribes and reservations.'''') (quoting Rice, 528 
U.S. at 519-20). 7
---------------------------------------------------------------------------
    \7\ The Ninth Circuit recently described a special relationship 
between Congress and the Hawaiians in Doe v. Kamehameha Schools, 470 
F.3d 827 (9th Cir. 2006):
     Beginning as early as 1920, Congress recognized that a special 
relationship existed between the United States and Hawaii. See Hawaiian 
Homes Commission Act, 1920, 42 Stat. 108 (1921) (designating 
approximately 200,000 acres of ceded public lands to Native Hawaiians 
for homesteading). Over the years, Congress has reaffirmed the unique 
relationship that the United States has with Hawaii, as a result of the 
American involvement in the overthrow of the Hawaiian monarchy. See, 
e.g., 20 U.S.C. Sec. 7512(12), (13) (Native Hawaiian Education Act, 
2002); 42 U.S.C. Sec. 11701(13), (14), (19), (20) (Native Hawaiian 
Health Care Act of 1988).
    Id. at 847-48. The Ninth Circuit also recently pointed out that 
Congress has repeatedly singled out Native Hawaiians to provide them 
with special benefits:
     Congress has relied on the special relationship that the United 
States has with Native Hawaiians to provide specifically for their 
welfare in a number of different contexts. For example, in 1987, 
Congress amended the Native American Programs Act of 1974, Pub.L. No. 
100-175, Sec. 506, 101 Stat. 926 (1987), to provide federal funds for a 
state agency or ``community-based Native Hawaiian organization'' to 
``make loans to Native Hawaiian organizations and to individual Native 
Hawaiians for the purpose of promoting economic development in the 
state of Hawaii.'' A year later, Congress enacted the Native Hawaiian 
Health Care Act of 1988, Pub.L. No. 100-579, Sec. 11703(a), 102 Stat. 
2916 (1988), ``for the purpose of providing comprehensive health 
promotion and disease prevention services as well as primary health 
services to Native Hawaiians.''
    Id. at 848.
---------------------------------------------------------------------------
    In Mancari, the Supreme Court rejected the claim that an Act of 
Congress according an employment preference for qualified Indians in 
the Bureau of Indian Affairs violated the Due Process Clause and 
federal anti-discrimination provisions. The Court explained that ``[o]n 
numerous occasions this Court specifically has upheld legislation that 
singles out Indians for particular and special treatment.'' 417 U.S. at 
554 (citing cases involving, inter alia, the grant of tax immunity and 
tribal court jurisdiction). The Court laid down the following rule with 
respect to Congress' special treatment of Indians: ``As long as the 
special treatment can be tied rationally to the fulfillment of 
Congress' unique obligation toward the Indians, such legislative 
judgments will not be disturbed.'' Id. Clearly, and as explained above, 
the NHGRA can be ``rationally tied'' to Congress' discharge of its duty 
with respect to the native people of Hawaii. As such, it does not 
violate equal protection principles.
    A more subtle variation of the objection is that because the NHGRA 
does not immediately result in recognition of a sovereign Native 
Hawaiian entity, the ``race-based'' classifications Congress makes 
now--before that entity is reconstituted--violate equal protection 
principles. This argument, albeit clever, ignores the fact that in 
passing the NHGRA, Congress would be finding (as it has before) that 
Native Hawaiians are, and have been, an indigenous political entity 
analogous to American Indian tribes, and that they never ceased to 
retain elements of their political and cultural unity. See, e.g., NHGRA 
Sec. Sec. 2(13), 2(15), 2(22). The NHGRA simply reflects Congress' 
determination that such an entity already exists--the legislation 
declares, it does not create. As a result, Native Hawaiians are deemed 
a political unit even before formal recognition of their sovereignty, 
and the lines drawn by Congress in the NHGRA are not racial at all, but 
instead fall within Congress' plenary power as to indigenous peoples. 
See Mancari, 417 U.S. at 551-552. 8
---------------------------------------------------------------------------
    \8\ The Mancari principle can apply as fully with respect to 
indigenous groups not currently recognized as sovereign as it does with 
respect to indigenous groups already so recognized. If that were not 
so, then the congressional power to recognize and restore sovereignty 
to tribes--affirmed by the Supreme Court in Lara, 541 U.S. 193--could 
not exist; such congressional restoration would by definition violate 
equal protection principles.
---------------------------------------------------------------------------
    To be sure, Justice Breyer's separate concurrence in Rice suggested 
that there is a limit to how attenuated a purported tribal member's 
connection to the tribe may be. See 528 U.S. at 527. However, to 
overread this point as an objection to the NHGRA would be to confuse 
the limited power other bodies--agencies, states, and courts--have as 
to Indian affairs with the robust plenary power enjoyed by Congress. 
Justice Breyer, writing for himself and Justice Souter, noted only that 
while ``a Native American tribe has broad authority to define its 
membership, [t]here must...be some limit on what is reasonable, at the 
least when a State (which is not itself a tribe) creates the 
definition.'' Rice, 528 U.S. at 527 (Breyer, J., concurring) (citation 
omitted) (emphasis added). He rightly makes no mention of a 
congressional definition, or of a constitutional limit on congressional 
power. Rice involved state, not congressional, action, and as cases 
such as Mancari reflect, Congress has far more latitude when dealing 
with Native Americans than do the states. See Rice, 528 U.S. at 520 
(``OHA is a state agency, established by the State Constitution, 
responsible for the administration of state laws and obligations.''); 
id. at 522 (``[T]he elections for OHA trustee are elections of the 
State, not of a separate quasi-sovereign, and they are elections to 
which the Fifteenth Amendment applies. 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'').
    Second, Rice dealt exclusively with the Fifteenth Amendment and 
voting restrictions. Nowhere did it mention the equal protection 
clause. Only the dissents mentioned the Fourteenth Amendment. See id. 
at 528-28 (Stevens, J., dissenting); id. at 548 (Ginsburg, J., 
dissenting). By contrast, the majority decision consistently referenced 
the Fifteenth Amendment's unique history and requirements. See, e.g., 
id. at 512 (discussing concern about giving ``the emancipated slaves 
the right to vote''). It is doubtful that the rigid rules applied to 
voting would translate directly into the Fourteenth Amendment context, 
which is by its nature more flexible. E.g., Hayden v. Pataki, 449 F.3d 
305, 351-352 (2d Cir. 2006) (``The text and the legislative history of 
the Fifteenth Amendment demonstrate that it did not simply mimic Sec. 2 
of the Fourteenth Amendment, but, instead, broke new ground by 
instituting a ban on any disenfranchisement based on race.''). 
9
---------------------------------------------------------------------------
    \9\ Opponents of the legislation also have relied on yet another 
constitutional provision, arguing that a congressional grant of 
superior political rights to Native Hawaiians would violate Art. I, 
sec. 9, which forbids the creation of a hereditary aristocracy. This 
argument is baseless. Apart from the absurdity of characterizing Native 
Hawaiians as ``noble'' after the enactment of the NHGRA (as opposed to 
simply being partially restored to their preexisting condition), no 
court has ever relied on Art. I, sec. 9's ``title of nobility'' clause 
to strike down any enactment of Congress--indeed, it appears that no 
court has ever relied on the clause for any holding whatsoever. In any 
event, a congressional finding that Native Hawaiians are an indigenous 
group analogous to Native American tribes would bring the NHGRA within 
Congress' plenary authority to legislate with regard to Native 
Americans, and as a result the ``superior'' rights granted to Native 
Hawaiians by the NHGRA would be no different, as a constitutional 
matter, from the ``superior'' rights granted to other American Indian 
groups. As discussed above, such groups' status as political entities 
removes congressional enactments about them from the strict scrutiny 
given racial classifications under traditional equal protection 
analysis. See Mancari, 417 U.S. at 551-552. There is no reason why the 
analysis should proceed differently under any other constitutional 
equality guarantee. See Zobel v. Williams, 457 U.S. 55, 70 n.3 (1982) 
(Brennan, J., concurring) (comparing the Fourteenth Amendment to Art. 
I, sec. 9).
---------------------------------------------------------------------------
    Finally, in connection with any discussion of the equal protection 
implications of the NHGRA, it should be noted that the equality of 
treatment, under federal law, between Native Hawaiians and other native 
groups is one of the purposes and justifications for the NHGRA. Native 
Hawaiians have been denied some of the self-governance authority long 
established for other indigenous populations in the United States. As 
Governor Lingle testified to Congress,
        The United States is inhabited by three indigenous peoples--
        American Indians, Native Alaskans and Native 
        Hawaiians....Congress has given two of these three populations 
        full self-governance rights....To withhold recognition of the 
        Native Hawaiian people therefore amounts to discrimination 
        since it would continue to treat the nation's three groups of 
        indigenous people differently....[T]oday there is no one 
        governmental entity able to speak for or represent Native 
        Hawaiians. The [NHGRA] would finally allow the process to begin 
        that would bring equal treatment to the Native Hawaiian people.
Testimony of Linda Lingle, Governor of the State of Hawaii, Senate 
Indian Affairs Committee Hearing on S. 147, at 2 (March 1, 2005) 
(prepared text). See also Statement of Sen. Byron Dorgan, Vice 
Chairman, Senate Indian Affairs Committee Hearing on S. 147, at 1 
(March 1, 2005) (``[T]hrough this bill, the Native Hawaiian people 
simply seek a status under Federal law that is equal to that of 
America's other Native peoples--American Indians and Alaska Natives.'') 
(prepared text); Haunani Apoliona, Chairperson, Board of Trustees, 
Office of Hawaiian Affairs, Senate Indian Affairs Committee Hearing on 
S. 147, at 2 (March 1, 2005) (``In this legislation, as Hawaiians, we 
seek only what long ago was granted this nation's other indigenous 
peoples.'') (prepared text).
B.  The Fact that Native Hawaiians Allowed Foreigners Into Their 
        Society Prior to 1893 Has No Bearing on the Analysis.
    Opponents of the legislation also have argued that Congress cannot 
recognize Native Hawaiians as a sovereign people because they did not 
enjoy such a status even before 1893. In support of this argument, they 
have said, among other things, that (1) Native Hawaiian society was 
multiracial and whites held high-ranking positions in Queen 
Liliuokalani's government, and (2) the Hawaiian government was a 
monarchy and thus sovereignty did not rest with the people.
    We do not believe this argument carries much constitutional weight. 
First, the fact that Hawaii was a monarchy prior to U.S. annexation is 
irrelevant to the analysis. The American Indian and Alaska Native 
groups that have been recognized as dependent sovereigns had a wide 
range of political structures prior to the arrival of whites, and that 
fact has never been deemed to have any bearing on congressional power 
to recognize their sovereignty or tribal status. See, e.g., Washington 
v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 
658, 664 & n.5 (1979) (``[S]ome bands of Indians...had little or no 
tribal organization * * *. Indeed, the record shows that the 
territorial officials who negotiated the treaties on behalf of the 
United States took the initiative in aggregating certain loose bands 
into designated tribes and even appointed many of the chiefs who signed 
the treaties.''). Congress is certainly well within its powers to 
determine that the situation of Native Hawaiians parallels those of 
other federally recognized tribes.
    Second, the fact that Native Hawaiians invited foreigners into 
their midst prior to 1893 is equally irrelevant to their inherent 
sovereignty vel non. Taken to its logical endpoint, this argument 
suggests that any sovereign political group that permits outsiders into 
its ranks surrenders its sovereignty; this clearly cannot be. It would 
be a perversion of the United States' trust responsibility toward 
indigenous people to punish a group for having been too inclusive when 
settlers arrived, while rewarding those who were exclusive or 
discriminatory. In any event, participation of non-Hawaiians in the 
Hawaiian monarchical government was at least in part the result of 
direct pressure by Europeans and Americans who sought increased 
influence over Hawaiian affairs. See Rice, 528 U.S. at 504. It would be 
equally perverse to find that this pressure--which led to the overthrow 
of the Native Hawaiian monarch--negates the possibility of a sovereign 
Native Hawaiian government going forward.
    Opponents of the legislation also have advanced a related argument: 
They have said that because foreigners were part of the Hawaiian polity 
in 1893, there was never a solely Native Hawaiian entity of the sort 
that would be reconstituted by the NHGRA--in other words, that if one 
were to accurately reconstitute the Hawaiian sovereign, one would have 
to include lineal direct descendants of non-indigenous Hawaiian 
natives, over whom Congress has no Indian affairs power. The flaw in 
this argument is that it discounts both the realities of Hawaiian 
history and the great deference paid to congressional line-drawing in 
the Indian affairs arena.
    Under Sandoval, supra, Congress has extraordinarily broad authority 
to decide who falls within its Indian affairs power; the logical 
concomitant of this authority is the power to decide who falls outside 
the groups it chooses to recognize. For this reason, a congressional 
decision on how to define ``Native Hawaiian'' would be reviewable only 
for arbitrariness. The NHGRA's approach cannot be said to run afoul of 
this highly deferential standard. As the Supreme Court has noted, much 
of the nineteenth century foreign presence in Hawaii--both within 
Hawaiian government and in the broader polity--was unwanted and in fact 
actively resisted by Native Hawaiians. See Rice, 528 U.S. at 504 
(finding that there was ``an anti-Western, pro-native bloc'' in the 
Hawaiian government, that in 1887 Westerners ``forced...the adoption of 
a new Constitution'' that gave the franchise to non-Hawaiians, and that 
the U.S.-led 1893 uprising was triggered in part by the queen's attempt 
to promulgate a new constitution again limiting the franchise to 
Hawaiians). Furthermore, Congress has long distinguished between 
indigenous Hawaiians and others who may have lived in the Hawaiian 
Islands at the time of annexation. See Hawaiian Homes Commission Act 
Sec. Sec. 201, 203 (setting aside land to provide lots to Native 
Hawaiians with 50 percent or more Hawaiian blood). With all of these 
facts in mind, Congress supportably could find that an initial 
definition of ``Native Hawaiian'' as limited to those with some 
Hawaiian blood is appropriate. 10
---------------------------------------------------------------------------
    \10\ In any event, of course, the congressional definition is 
preliminary--it defines only the roll of those who may participate in 
reconstituting the Native Hawaiian entity. Congress could rationally 
conclude that the initial definition of ``Native Hawaiian'' should be 
limited to indigenous Hawaiians and their descendants, while leaving 
the subsequent dependent sovereign entity some leeway to later 
determine--just as virtually every Native American tribe determines for 
itself--who else (if anyone) should be included in its ranks.
---------------------------------------------------------------------------
    NHGRA opponents have made one additional argument aimed at pre-
statehood days: They say that Native Hawaiians' failure to preserve 
their polity through some sort of treaty or other formal recognition at 
the time of annexation (or later, at the time Hawaii joined the Union) 
waives any claim of revival now. But the lack of a treaty recognizing 
Native Hawaiian sovereignty at the time of annexation is immaterial for 
several reasons. First, the argument is ahistorical: The 1898 
annexation post-dated the era when the United States signed treaties 
with native groups. See Lara, 541 U.S. at 201 (``[I]n 1871 Congress 
ended the practice of entering into treaties with the Indian tribes'') 
(citing 25 U.S.C. Sec. 71). This change in U.S. policy did not alter 
the sovereignty of native groups. Cf. id. (noting that 25 U.S.C. 
Sec. 71 `` `in no way affected Congress' plenary powers to legislate on 
problems of Indians.' ``) (quoting Antoine v. Washington, 420 U.S. 194, 
203 (1975)). Second, yet again, it would be perverse to punish an 
indigenous group precisely because it had been so thoroughly removed 
from power in its own land that it did not have the means to win 
concessions from the annexing entity. And third, as a factual matter, 
there were concessions made by the United States analogous to the 
treaties signed with American Indian groups. See Hawaiian Homes 
Commission Act, supra.
    Finally, it is unclear why a failure to recognize Native Hawaiians 
at the time of Hawaiian statehood should have any effect on 
congressional power to recognize them now; this argument, like many of 
those above, appears grounded in an improperly cramped view of 
congressional authority as to native groups. But in any event, it is 
simply inaccurate to say no steps were taken in 1959 to recognize the 
separate existence of a Native Hawaiian people. As noted supra at 16, 
Hawaii agreed in connection with its admission to the Union to adopt 
the Hawaiian Homes Commission Act as part of the Hawaii Constitution. 
Furthermore, the United States transferred title to some 1.4 million 
acres of public lands in Hawaii to the new State as a public trust for 
the betterment of ``Native Hawaiians.'' Admission Act Sec. 5(f). These 
actions constitute the sort of recognition of a continuing indigenous 
corpus that NHGRA opponents wrongly claim was lacking.
C.  The Claim that Congress Can Only Recognize a Native Group that Has 
        Had a ``Continuous'' Governmental Structure is Incorrect as a 
        Matter of Constitutional Law.
    NHGRA opponents also have argued that Congress cannot recognize 
Native Hawaiians as a sovereign indigenous people because they have not 
existed as a coherent ``tribe'' on a consistent basis since Hawaii's 
annexation; this argument sometimes relies on the proposition that 
Congress may not recognize a tribe unless its existence has been 
``continuous.'' This objection suffers from numerous fundamental flaws. 
In our judgment, it would not carry the day in any challenge to the 
NHGRA's constitutionality.
  i. The supposed ``continuity'' rule does not bind Congress.
    First, and most importantly, congressional power to recognize 
Indian tribes is not hamstrung by a ``continuity'' rule or any similar 
requirement. The ``continuity'' rule cited by opponents of the 
legislation is drawn in the main from Department of the Interior 
regulations that govern when that agency will recognize an Indian tribe 
pursuant to its delegated power. See 25 C.F.R. Sec. 83.1 et seq. But 
these regulations govern nothing more than the scope of the agency's 
power, and they in no way mean Congress' authority is similarly 
cabined. To the contrary, Congress has plenary power to establish the 
criteria for recognizing a tribe; it may delegate this authority to the 
executive branch at its discretion, and the executive branch restricts 
its agency decision-makers by means of regulations they are bound to 
follow. See Miami Nation v. United States Dep't of Interior, 255 F.3d 
342, 345 (7th Cir. 2001). In other words, the reservoir of authority 
lies in Congress. The Agent (an executive agency) cannot tell the 
Principal (Congress) what recognition criteria to employ.
    This structural arrangement, in turn, governs the shape of judicial 
review. As Judge Posner has explained, it means that a decision 
recognizing a tribe is reviewable by the courts only if it was made by 
an agency within the agency's regulatory framework; in that 
circumstance, the decision is ``within the scope of the Administrative 
Procedure Act'' and therefore within the competence of the courts. Id. 
at 348. Otherwise, the decision ``has traditionally been held to be a 
political one not subject to judicial review.'' Id. at 347 (quoting 
William C. Canby, Jr., American Indian Law in a Nutshell 5 (3d ed. 
1998)). 11
---------------------------------------------------------------------------
    \11\ In any event, reliance on these regulations is misplaced 
because they are expressly inapplicable to Native Hawaiians. See 25 
C.F.R. Sec. 83.3(a) (``This part applies only to those American Indian 
groups indigenous to the continental United States which are not 
currently acknowledged as Indian tribes by the Department.''); id. 
Sec. 83.1 (defining continental United States to mean ``the contiguous 
48 states and Alaska'').
---------------------------------------------------------------------------
    Like the Department of the Interior, some courts have employed a 
``continuity'' requirement when examining whether a group of Native 
Americans qualifies as the successor of an earlier tribe for purposes 
of exercising treaty rights. See, e.g., United States v. Washington, 
641 F.2d 1368, 1373 (9th Cir. 1981) (``Washington I''). Again, however, 
the courts do so only as a default rule in the face of congressional 
silence about a tribe's qualifications; if Congress has chosen to 
recognize (or decline to recognize) a tribe, the courts defer to that 
decision, recognizing Congress' far greater authority in the arena. See 
United States v. Washington, 394 F.3d 1152, 1158 (9th Cir. 2005) 
(``Washington II'') (noting ``the traditional deference that the 
federal courts pay to the political branches in determining whether a 
group of Indians constitutes a tribe''); Canby, American Indian Law in 
a Nutshell 6 (``Once granted,...the recognition will bind the courts 
until it is removed by the Executive or Congress.''); Holliday, 3 Wall. 
at 419 (``If by [the political branches] those Indians are recognized 
as a tribe, this court must do the same.''). In short, the courts 
uniformly have recognized that ``Congress has the power, both directly 
and by delegation to the President, to establish the criteria for 
recognizing a tribe.'' Miami Nation, 255 F.3d at 345.
  ii. Even if a ``continuity'' rule applied, Native Hawaiians would 
        meet it.
    The ``continuity'' rule does not limit congressional power to 
recognize a Native Hawaiian sovereign entity. However, even assuming 
that it did, Native Hawaiians would be able to meet its mandate.
    Courts that use a ``continuity'' rule in the absence of 
congressional direction have explained that it is not absolute--that 
is, it does not require that a native group have maintained a robust 
political structure no matter the circumstances. To the contrary, these 
courts sensibly have recognized that native groups often were subject 
to intense pressure--military, economic, and otherwise--to abandon 
their lands and submit to Western governments. They therefore hold that 
any modern tribal vestige demonstrating that assimilation is not 
complete suffices to meet the continuity test. As the Washington I 
court wrote:
        [C]hanges in tribal policy and organization attributable to 
        adaptation do not destroy tribal status. Over a century, change 
        in any community is essential if the community is to survive. 
        Indian tribes in modern America have had to adjust to life 
        under the influence of a dominant non-Indian culture....A 
        degree of assimilation is inevitable under these circumstances 
        and does not entail the abandonment of distinct Indian 
        communities.
641 F.2d at 1373. Therefore, only when assimilation is ``complete'' do 
those purporting to be the tribe lose their claim to tribal rights. 
Id.; see also Native Village of Venetie I.R.A. Council v. State of 
Alaska, 944 F.2d 548, 557 (9th Cir. 1991) (``[A] relationship...must be 
established, but some connection beyond total assimilation is generally 
sufficient.''). Further, the courts ``have been particularly 
sympathetic to changes wrought as a result of dominion by non-
natives.'' Id. The relaxed construction of the ``continuity'' rule in 
this circumstance reflects the principle that ``if a group of Indians 
has a set of legal rights by virtue of its status as a tribe, then it 
ought not to lose those rights absent a voluntary decision made by the 
tribe * * *.'' Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 586 
(1st Cir. 1979).
    If such a continuity test applied here, it would be met on the 
strength of Congress' findings of fact. As discussed above, Congress 
has determined--both in the NHGRA and elsewhere--that Hawaiians have 
indeed maintained elements of their political and cultural structure in 
the years since Hawaiian annexation. See, e.g., NHGRA Sec. 2(9) 
(``Native Hawaiians have continuously sought access to the ceded lands 
in order to establish and maintain native settlements and distinct 
native communities''); id. Sec. 2(11) (``Native Hawaiians continue to 
maintain other distinctly native areas in Hawaii''); id. Sec. 2(15) 
(``Native Hawaiians have continued to maintain their separate identity 
as a single distinct native community through cultural, social, and 
political institutions''); see also The Reconciliation Report at 4 
(noting that native Hawaiian people ``continue to maintain a distinct 
community and certain governmental structures''). This, combined with 
the fact (found by Congress) that the United States played a role in 
the ouster of the Hawaiian government, see Apology Resolution, supra, 
and the fact (also found by Congress) that ``the Native Hawaiian people 
never directly relinquished to the United States their claims to their 
inherent sovereignty as a people over their national lands,'' NHGRA 
Sec. 2(13), brings Native Hawaiians within the relaxed ``continuity'' 
requirement established by such cases as Washington I. 12
---------------------------------------------------------------------------
    \12\  Furthermore, that many native Hawaiians are integrated into 
multiracial communities does not set them apart from Alaska Natives, 
who have been similarly assimilated and whose dependent sovereignty has 
nonetheless been recognized by Congress. See Metlakatla Indian 
Community v. Egan, 369 U.S. 45, 50-51 (1962) (describing how the 
``Indians of southeastern Alaska...have very substantially adopted and 
been adopted by the white man's civilization'').
---------------------------------------------------------------------------

                                 * * *

    The Supreme Court has confirmed that Congress has broad, plenary 
constitutional authority to recognize indigenous governments and to 
help restore the federal relationship with indigenous governments 
overtly terminated or effectively decimated in earlier eras. See Lara, 
541 U.S. at 203 (affirming that the Constitution authorizes Congress to 
enact legislation ``recogniz[ing]...the existence of individual 
tribes'' and ``restor[ing] previously extinguished tribal status''). 
That authority extends to the Native Hawaiian people and permits 
Congress to adopt the NHGRA, which would recognize the Native Hawaiian 
governing entity and initiate a process for its restoration.
The Authors
H. Christopher Bartolomucci is a partner in the Washington, D.C. office 
of Hogan & Hartson LLP. Mr. Bartolomucci served in the White House 
Counsel's Office as Associate Counsel to the President from 2001 to 
2003.

Viet D. Dinh is Professor of Law and Co-Director of Asian Law & Policy 
Studies at the Georgetown University Law Center, as well as the founder 
and principal of Bancroft Associates PLLC, a leading consultant on 
constitutional and regulatory policy issues. Mr. Dinh served as U.S. 
Assistant Attorney General for Legal Policy from 2001 to 2003.

Neal K. Katyal is Professor of Law at Georgetown University Law Center. 
Mr. Katyal, a specialist in constitutional, criminal, and education 
law, has been counsel in a number of leading Supreme Court cases. He 
served as National Security Adviser to the Deputy U.S. Attorney General 
from 1998 to 1999.
                                 ______
                                 
    The Chairman. Thank you, again. Gentleman from Hawaii?
    Mr. Abercrombie. Thank you very much, Mr. Chairman. Ms. 
Heriot, thank you for coming and testifying today. I am well 
aware myself of what it is like to be in a situation where you 
are the only one holding a particular viewpoint, and you stated 
it clearly.
    Ms. Heriot. Still kind of like the sport of it.
    Mr. Abercrombie. Yes, very good, and particularly when it 
comes to something like civil rights there can be clear 
disagreement as to what constitutes that, and I take it as a 
premise that your testimony is trying to defend what in fact 
are civil rights, and that the commission forms a very valuable 
service in that regard.
    What I would like to do right now if I can is engage in a 
bit of a dialogue with you in the hopes that perhaps you will 
come to see that both of our commitments to civil rights in the 
United States may not be as far afield as we might initially be 
led to think by your interpretation so far of what this 
legislation is about. I am hoping that with just a touch of 
history from me that perhaps you will grant--I was going to say 
the opportunity, but grant my request that perhaps you might do 
some rethinking on this, and we might be closer than we might 
otherwise appear to be on the surface.
    I was in the legislature and in the negotiations that 
brought about the legislation that was passed, the proposed 
constitutional amendments. I think from an historic point of 
view, I may be one of the only people that has this continuity 
of legislative relationship. The whole idea we thought of the 
legislation establishing the Office of Hawaiian Affairs.
    I am referring to this specifically now because of Rice v. 
Cayetano, which has been mentioned here, we thought we were 
resolving the issue that had been on the table since 1959 with 
the Admissions Act, which included the benefit for Native 
Hawaiians in the overall context of the rights, which you cite 
in your testimony. We thought we were handling that. When I was 
first elected to the legislature in 1974, involved in racial 
politics, you mentioned racial politics, I was just recently 
named the Scot of the Year in Hawaii, OK?
    The Scot of the Year. I am glad I got your attention on 
that one Ms. Heriot. When I am introduced on occasion across 
the mainland, especially in saying here is the representative 
from Hawaii, and everybody looks around for Don Ho, and they 
see me instead, and I routinely say to people that I am 
Hawaii's answer to affirmative action in this regard, so I am 
well aware of what racial politics are, and I don't think I 
would be sitting in this seat if racial politics in the garden 
variety understanding of what racial politics was prevailing.
    I assure you both in 1974 when I was on the Water, Land and 
Hawaiian Homes Committee and now, we have always known what the 
assets are. It is water, and it is land and then Hawaiian 
Homes. That was the committee. I remember asking the Chairman, 
Chairman Richard Kawakami, from Hawaii why are we dealing with 
the ceded lands in Hawaiian Homes? Why doesn't the State just 
turn it over to the Hawaiians. He said that is what we want to 
do. We just have to figure out how. We have been figuring it 
out for 50 years now since 1959 and statehood, so when we did 
this in 1978, we thought we were resolving that issue.
    Now, the people of Hawaii understood very clearly when we 
passed the constitutional amendment then when we said Native 
Hawaiians should elect the trustees, it wasn't because we were 
trying to be racially discriminatory or anything. We thought 
that is the most sensible way to do this. Now, we probably 
should have been aware that because it is a state agency, and 
by the way OHA is constantly criticized for being a state 
agency, well hell, we were the State Legislature. What else 
could we create.
    Because it was a state agency, the Court ruled, and this is 
all that happened in Rice v. Cayetano, that everybody had to 
vote, not just Native Hawaiians. OK. Great. Everybody voted, 
and what did they do? They voted Native Hawaiians in to be the 
trustees because everybody is agreed in Hawaii that everybody 
benefits when we deal with issues associated with Native 
Hawaiian ceded lands, Department of Hawaiian Homelands. We are 
all agreed on that.
    It has never been racial. It is always been historic and 
political. Always, and I want to point out, Mr. Chairman, that 
Representative Tom Gill, our predecessor here, ranks and will 
rank in the history of the House of Representatives right up 
with Patsy Mink, also a Representative from Hawaii. Patsy Mink 
wrote Title IX that saw that you cannot discriminate against 
women, and Tom Gill was the author of the clause in the Civil 
Rights Act against racial discrimination, so believe me.
    We do not need to be lectured in Hawaii about racial 
discrimination when it has been our representatives who have 
led the way in making sure that where civil rights are 
concerned discrimination whether on the basis of gender or on 
the basis of race is not tolerated legally.
    What I am asking is could you at least contemplate the idea 
that H.R. 2314 has no basis in racial politics but is, in fact, 
a document put together to try to resolve legislatively the 
questions of dealing with Native Hawaiian assets as defined in 
the Admissions Act and that could you consider then that if you 
are willing to grant that, that this bill might, in fact, then 
help to resolve those issues?
    Ms. Heriot. Well, Congressman, I think you hit the nail on 
the head in regards to this issue. I think the problem is when 
race gets introduces, the issues are never resolved, that it 
just goes around and around and around, and that is why the 
14th Amendment was passed as it was. Now, if this bill defined 
the potential members of the tribal group in a way that was not 
racial, that was historic, if this were perhaps the descendants 
of the people that lived in the Kingdom of Hawaii, which again 
was a multi-racial culture----
    Mr. Abercrombie. Well, then you will excuse me. That is OK 
because time is short. The definition as suggested by the 
Chairwoman Haunani is that we go back to 1778 and anybody who 
can trace their ancestry back that far.
    Ms. Heriot. But the wrong that has been asserted is the 
overthrow of the kingdom, which occurred much, much later at a 
time when ethnic Hawaiians were a minority in the State of 
Hawaii.
    Mr. Abercrombie. Yes, but that is my point is this is never 
racial. The Native Hawaiians are probably the most racially 
mixed group of people on the face of the Earth. I suspect you 
and I have less in the way of cosmopolitanism than virtually 
all Hawaiians.
    Ms. Heriot. That is absolutely true that only about I 
believe according to the----
    Mr. Abercrombie. So then why is this a racial issue?
    Ms. Heriot. Because it is defined in terms of that.
    Mr. Abercrombie. No, no. You are defining it.
    Ms. Heriot. I can read it into the record if you want. I 
think most people would agree this is an effort to define a 
group based on whether or not they are descended from a race of 
people who lived in Hawaii prior to contact with the rest of 
the world.
    Mr. Abercrombie. Yes.
    Ms. Heriot. The Supreme Court decided----
    Mr. Abercrombie. That is what indigenous people are.
    Ms. Heriot. Yes.
    Mr. Abercrombie. Yes.
    Ms. Heriot. And this is a race as the Supreme Court has 
held in Rice v. Cayetano when Native Hawaiians were the only 
people who could vote for trustees. This was rejected on the 
basis of the 15th Amendment.
    Mr. Abercrombie. Yes.
    Ms. Heriot. Now, it is true that they left the question 
open of whether or not it would be different if this were a 
tribe, but the problem is, it is not a tribe now, and the only 
way to make a tribe is by operating a law working on a racial 
group.
    Mr. Abercrombie. Nobody has ever thought of it that way. 
The word tribe only comes up with folks from the mainland. We 
never even heard of that the whole time I have been in Hawaii. 
This is my 50th anniversary. The only time this tribe business 
comes up is when it is injected because someone wants to try 
and keep us from resolving these issues. I appreciate that 
though. Thank you. Mr. Yaki, do you see what I am driving at?
    Mr. Yaki. Thank you very much, Congressman. Two points I 
wish to raise in response to what my colleague just said. One, 
quite frankly that I do not wish to sound as offended as I 
probably want to be, but when she talks about the fact that 
Native Hawaiians were a very small minority of the population 
in 1890, I would just point out the fact that as the 
Congressman from American Samoa pointed when Cook landed on the 
islands, there were about 300,000 to 400,000 Native Hawaiians.
    The introduction of disease brought about by settlers 
decimated that population down to 40,000, so the idea that they 
were a minority at the time in 1890, well to say that without 
understanding the context I think is wrong.
    The Chairman. Well, would you agree that whether you are a 
minority numerically is immaterial to the issue at hand.
    Mr. Yaki. It is, and my next point was simply going to be 
the point is that the failure to recognize by my colleague that 
these were the indigenous peoples who had traveled thousands of 
years before to settle on those islands, and this legislation 
tracks those individuals is exactly what we have done 
elsewhere. When we talk about tribes, tribes as you know is a 
western anthropological term. It really has no meaning to a lot 
of the different governing structures of the native peoples of 
this country.
    California had a much looser band structure than some of 
the more organized in the Midwest and Colorado, et cetera. The 
Native Alaskans, for example, are completely not by any term a 
tribe, so the idea that there is some constitutional definition 
rigidity to the term tribe is erroneous. Clearly, over time the 
Supreme Court has talked about indigenous peoples, and that is 
the clear point and the clear message of this legislation. It 
relates to the indigenous peoples of the islands of Hawaii.
    As long as you focus on that, it is not 15th Amendment, it 
is not the 14th Amendment, it is not the 5th, it is not the 
whatever it is. It is the Indian Commerce Clause plenary power 
of Congress to recognize those individuals. That is the focus 
of this legislation.
    Mr. Abercrombie. Now, just one more moment, Mr. Chairman, 
if you will. Mr. Bartolomucci, in your testimony I wanted just 
to reflect this last commentary here. We are, in fact, here 
talking about native people, right?
    So the Indian Tribal Clause within the Constitution is I 
don't know if phrase of art is the correct terminology here 
legally, but that is the way at the time of the formation of 
the Constitution, that was the only entity or designation 
rather that the writers of the constitutional documents could 
refer to, right, so that when you try to apply the Constitution 
in a contemporary context, indigenous people is what they were 
really talking about, is that correct?
    The word tribe might have been used, but it is almost a 
generic term for the relationship of the United States 
government to indigenous people. Is that a fair summary?
    Mr. Bartolomucci. You are correct, Congressman Abercrombie. 
The term Indian tribe really is in reference to indigenous 
people, so the Indian commerce clause is properly understood, 
and the Supreme Court has said this again and again as 
conferring upon Congress a broad plenary power to deal with 
indigenous, native groups that exercised a sovereignty, so 
that----
    Mr. Abercrombie. And do we not do that in this Committee 
routinely?
    Mr. Bartolomucci. Correct.
    Mr. Abercrombie. As recently as last week, Mr. Chairman, 
isn't that the case?
    The Chairman. Correct.
    Mr. Abercrombie. Yes. Now it may be controversial, but the 
question of whether we can do it is not at issue. The question 
is do we want to do it? That is always at issue and, of course, 
that is what has to be decided now. Just one last point very 
quickly with Mr. Kane.
    Mr. Kane, was I essentially correct, and am I reflecting 
correctly your testimony that the question of sovereignty per 
se is not an issue when it comes to paying taxes, connecting 
sewer lines, the practical every day realities, signing 
contracts, issuing bonds, all the rest that for all intents and 
purposes the practical implementation of being able to exercise 
authority by some governing entity that emerges out of this 
enabling legislation would not be a difficulty, that we have 
practical every day examples already in existence which would 
continue to apply.
    Mr. Kane. It hasn't been in the past, and I don't perceive 
it being a challenge going forward. In fact, the mechanics and 
agreements that we have in place in dealing with the state Land 
Use Commission as well as the respective county Planning 
Commission allow the department to work in cooperation with 
those regulatory agencies. While the Department of Hawaiian 
Homelands holds the authority to its land use jurisdiction, we 
do work in cooperation and, in fact, have very good working 
relationships with them.
    Mr. Abercrombie. Has there ever been any difficulty since 
statehood to your knowledge with dealing with any Federal 
agency, Department of Justice, Interior, Commerce, Courts, 
anything?
    Mr. Kane. Absolutely not. In fact, in many cases, we are 
shoring up systems, and in very few cases do we have stand-
alone systems. In fact, our legislatures continually 
appropriate funding to projects that benefit not only our 
community but a broader community because that is just he way 
we function.
    Mr. Abercrombie. Thank you, and then finally, Mr. Chairman, 
and with respect to full disclosure, I want to indicate that 
the counsel to the Office of Hawaiian Affairs is, in fact, my 
next door neighbor, Judge Klein, so I want to make sure that 
you know that and that it is on the record. I am not trying to 
hide anything.
    The Chairman. Thank you very much. Gentlelady from Wyoming?
    Ms. Lummis. Thank you, Mr. Chairman. Do we have time to 
squeeze me in before votes?
    The Chairman. Yes. We are on. I am not sure how many votes 
we have got, but we do have votes, two votes that are underway 
at the present time, but we will come back. I don't know what 
is wrong with our light. Well, there is our lights.
    Ms. Lummis. OK. Thank you.
    Mr. Abercrombie. I beg your pardon, Mr. Chairman, I beg the 
pardon of all the members. I had no idea that the vote was one.
    The Chairman. No. Gentlelady from Wyoming is recognized.
    Ms. Lummis. No problem. Thanks, Mr. Chairman. Thank you for 
being here today. This is a fascinating discussion for someone 
who is being exposed to it for the first time. I am curious. 
When Hawaii became a state, clearly these issues must have been 
visited then, or if they were visited then were found to be not 
appropriate given the statehood that Hawaii was seeking. What 
has changed, and I ask that question of Mr. Kane?
    Mr. Kane. I think I would have to disagree with your 
premise.
    Ms. Lummis. OK.
    Mr. Kane. I don't think there was--and so I would just have 
to disagree with your initial premise.
    Ms. Lummis. OK. Mr. Chairman, so this was discussed at the 
time of statehood?
    Mr. Kane. Well, I believe the fact that the State of Hawaii 
accepted statehood and the conditions that came with it was 
just a continuation of that authority to operate the Department 
of Hawaiian Homelands, and so the State of Hawaii embraced 
that, and today we are a fundamental part of our economy.
    We are a fundamental part of the fabric of our society and 
are a fundamental part of our culture that attracts people to 
come all across the world to visit our place and our culture, 
and I think people respect that and appreciate that, and I 
think statehood, they understood that, and I think they 
understand that today.
    Ms. Lummis. OK. Thank you. Ms. Apoliona. I appreciated your 
testimony and your desire to teach people and different 
generations about respect for land and culture. That is 
important in Wyoming as well, so that was very significant to 
me. If this bill is signed into law, what percentage of 
currently publicly owned lands in Hawaii is eligible to be 
turned over to Federally designated Native Hawaiian governing 
entities?
    Ms. Apoliona. I think representative Abercrombie referred 
to the potential 1.8 million acres that remains as public trust 
lands, but the key to this whole process has been underscored 
in several of the responses. If you look at the bill, it would 
be a negotiations process. Assuming the bill passes, the 
governing entity is established after a process of Native 
Hawaiians deriving what the governing structure would look 
like, which would be appropriate to our community.
    The United States government, the State of Hawaii 
government and the native government would have to sit down and 
negotiate some of these issues related to and including as I 
said in my testimony some of the comments related to historical 
wrongs, et cetera, which may include the discussion on lands. 
That is a negotiation process that we know will be very 
challenging.
    However, it is due process of three governments working 
together needs to occur, so I cannot at this point say to you a 
certain acreage or a certain location of public lands would 
come back or be part of the assets transferred back to the 
native government, and in addition to the negotiations, then we 
would have to have statutes, whether they be state statutes or 
Congressional actions taken to implement the agreements through 
a negotiations process would need to occur, so it would be a 
long process, an arduous one, but one that we must go forward 
on.
    To answer your question on what exactly is going to come 
back, I can't tell you because we are not at that point yet.
    Ms. Lummis. OK. Thank you. Mr. Kane, I do want to hear what 
you have to say about that, but I want to ask one more question 
of Mr. Yaki before we do. I am struggling with the difference 
between what we are talking about here versus my contacts as a 
Wyoming native about tribal definitions and the sovereign 
relationship between the State of Wyoming and the northern 
Arapaho, the Shoshone and so forth.
    Why should Congress not apply the same criteria to the 
request of Native Hawaiians as is applied to the tribes that I 
deal with within the contiguous United States?
    Mr. Yaki. Well, without knowing the exact details of the 
sovereign negotiations that go on between the tribes in your 
state and the Federal government and the State of Wyoming, I 
would simply say this: What you are asking though begs the 
question of why we are here today because the point of this is 
to create that scenario by which Native Hawaiians can engage in 
those discussions.
    Now, there are some interest limitations in this bill that 
may not be, for example, in any of the compacts that some of 
your tribes may have with your state government, such as 
limitations on gaming and other sorts of things, so in some 
ways, and I think this is a very important point to stress, 
this legislation is good legislation. It is for some people, 
and you probably heard about it I am sure the Congressman has 
heard about from some people, it doesn't go far enough. It 
doesn't immediately create a sovereign government and initiate 
state-to-state relations.
    It doesn't do that and probably because of the very reasons 
brought about by many here today, including my colleague, and 
especially Congressman Abercrombie about how Hawaii operates a 
little bit differently, and it is about trying to do this 
together, trying to make it work together. I think this is 
going to be a process that will be harmonious, that will be one 
that attempts to reach reconciliation and compromise, but no 
one exactly knows where it is going to lead.
    This legislation is about broad principles, about working 
toward self-governance and self-determination, which your 
tribes have. It allows them to begin the first what I call baby 
steps toward that, which quite frankly is a little bit less 
than what other people have gotten over the years, but it is 
the way this legislation is written. It is a way this 
legislation is deemed to pass, and I believe it is a reasonable 
step toward attaining what the tribes in your state already 
have.
    Ms. Lummis. OK. Thank you. Mr. Kane, I may catch you after. 
I don't want to hold everybody up here because we have to go to 
vote, so I might just catch you before we walk out of the room 
and get your response privately. Great. Thank you so much. 
Thanks, Mr. Chairman.
    The Chairman. Thank you. The Chair is going to have to 
recess the hearings for these votes on the House Floor. With 
the panels' patience, if you can return, I am sure there are 
more questions.
    Mr. Faleomavaega. There will be.
    The Chairman. OK. But we have more questions on that side?
    Mr. Faleomavaega. Yes.
    The Chairman. Can the panel return? Then the Committee will 
stand in recess for 15 minutes.
    [Recess.]
    Mr. Abercrombie [presiding]. Thank you for your patience. 
Let us see. I think, Mr. Kane, you were not being questioned at 
the end, but there was a question raised to which I believe the 
gentlewoman from Wyoming was going to speak to you, but perhaps 
you could put your answer on the record, and we will start from 
there if that is all right.
    Mr. Kane. Thank you, Congressman. I refer to the governing 
entity, and I wanted to parallel it to what we do today with 
the Hawaiian Homes Commission Act when a change occurs that 
affects our trust. As you know, a bill needs to be enacted at 
the legislature, adopted by our legislature, signed off by our 
Governor, and then if it has significant impacts, consent by 
the legislature as well as the Department of the Interior.
    That is the same process that the entity would go through 
as it negotiates through this effort, and I think it is 
important, or I think it would be important for members to 
recognize that it is not a significant change to a process that 
we are familiar with now, and again I think the mechanics of 
those activities are somewhat minor in nature because we are 
familiar with them.
    Mr. Abercrombie. When you say the legislature the second 
time, you mean the Congress, the national legislature?
    Mr. Kane. Yes, sir.
    Mr. Abercrombie. Yes. Thank you.
    Mr. Abercrombie. Eni, do you have a question at this point 
or an observation?
    Mr. Faleomavaega. Yes. Thank you, Mr. Chairman. I do have 
some questions I wanted to share with the members of the panel, 
and again thank you all of you for testifying this morning. Mr. 
Kane, welcome.
    Mr. Kane. Thank you.
    Mr. Faleomavaega. I just wanted to ask whether or not the 
establishment of the Department of Hawaiian Homelands was 
something creative to the discretion of the Hawaii state 
government or did this have anything to do with the Hawaii 
State Admissions Act, which was enacted by the Congress? In 
other words, did this department, was it created simply because 
something that originated by the Hawaii State government, or 
how did it come about? I think that is the----
    Mr. Kane. The Hawaiian Homes Commission Act established 
basically the Department of Homelands.
    Mr. Faleomavaega. The Hawaiian Homes Commissions Act was an 
Act by Congress?
    Mr. Kane. It was an act by Congress. It was an attempt to 
reconcile those political differences from the overthrow and 
before, and so that political relationship based on the 
treaties that occurred prior to the overthrow and then when the 
Hawaiian Homes Commission Act was passed was a direct 
relationship to those relationships. You cannot, in my opinion, 
turn off that political relationship when it is convenient to 
your argument, and that is what I believe some of the 
dissidence are trying to do.
    You cannot again recognize those political relationships 
that occurred through treaties that the Hawaii Kingdom had with 
various countries as well as the United States, carry that 
political relationship through the Hawaiian Homes Commission 
Act that Congress set aside, carry that relationship through 
the political relationship that is acknowledged at the time of 
statehood and then try to make a race-based argument when it is 
convenient to you now, and I believe that is what seems to be 
occurring right now on those----
    Mr. Faleomavaega. OK. And I just want to allude to our good 
friend, Ms. Heriot, certainly I am not trying to establish an 
adversarial relationship with you, Ms. Heriot in terms of the 
positions that you have taken on this, but in asking Mr. Yaki, 
you did make reference to the Admissions Act. Wasn't one of the 
requirements of the Admissions Act that something had to be 
done for the Native Hawaiians?
    I mean, didn't the Congress at that time recognize the 
existence of a group or people, if you call it a racial 
organization as Native Hawaiians, or did they just come out of 
thin air? I am trying to figure a sense of continuity from the 
time when Hawaii was a territory in 1900.
    Ms. Heriot. Yes. This is with regard to the ceded lands. 
Actually, the Admissions Act had five purposes that the public 
lands could be used.
    Mr. Faleomavaega. OK. OK.
    Ms. Heriot. Only one of those was for the betterment of 
Native Hawaiians as defined in the Hawaiian Homes Commission 
Act.
    Mr. Faleomavaega. Right. And the Congress----
    Ms. Heriot. Which, of course, is very different from the 
definition that is used in this statute.
    Mr. Faleomavaega. Yes.
    Ms. Heriot. So actually, it is a violation of the 
Admissions Act to be using the property for any purpose other 
than one of those five, and the fact----
    Mr. Faleomavaega. Let me interrupt you a minute. Congress 
also made a racial definition of American Indians that in order 
to be an American Indian you would have to be 50 percent blood 
or more, and they apply the same standard to Native Hawaiians. 
To be a Native Hawaiian, you have to be 50 percent or more. 
That classification of a Native American or American Indian, 
does it still apply today because I don't think so.
    Ms. Heriot. It is still in the statute. I mean, it was in 
the statute as passed in 1921. It is different from the 
definition. They are both racial definitions.
    Mr. Faleomavaega. Yes.
    Ms. Heriot. And I think they are both unconstitutional.
    Mr. Faleomavaega. But they continue to be applied from the 
time that the Congress made the definition of an American 
Indian as 50 percent blood or more. Did you think it was 
racially----
    Ms. Heriot. There were lots of legislation passed in the 
earlier part of the 20th century that is unconstitutional.
    Mr. Faleomavaega. But do you agree that this definition of 
race, I mean 50 percent to be a Native Hawaiian or American 
Indian was a fair way to describe a people?
    Ms. Heriot. Do I think it was a fair way? No. I am 
definitely against the statute.
    Mr. Faleomavaega. OK. Mr. Yaki, I just wanted to ask you 
for your comment on this.
    Mr. Yaki. Well, thank you very much, Mr. Congressman, and 
thank you for your leadership on the issues and on behalf of 
the people of American Samoa. I would just simply reiterate the 
point that has been made by Mr. Bartolomucci, Kane and others 
and that is the fact is that the Admission Act had specific 
conditions within it that continued policies set forth by this 
Congress that recognized the unique and special nature of the 
Native Hawaiian peoples.
    Some people try and call it a race issue. To me, it is and 
has been a perpetuation of the recognition of Native Hawaiians 
as a distinct indigenous people throughout the time of 
annexation and beyond, so I think that we can get into this 
argument about who classifies what as what, but the fact of the 
matter is that the Admissions Act by its very nature by 
incorporating in the Hawaiian Homes Act and other things 
continued that recognition that there is a special status for 
Native Hawaiian peoples within the State of Hawaii.
    Mr. Faleomavaega. OK. One more question, Mr. Yaki. You had 
given an indication that there was some serious problems on how 
the U.S. Commission on Civil Rights came about in making the 
decision that it did.
    Mr. Yaki. Yes.
    Mr. Faleomavaega. And you mentioned that there were only 
four witnesses that testified before the Commission?
    Mr. Yaki. Yes.
    Mr. Faleomavaega. Can you elaborate a little further on 
this in terms of how this four witnesses came about to be the 
only ones to testify before the commission?
    Mr. Yaki. Well, again as I think the Acting Chair alluded 
to the fact that before he had been in the minority as a 
minority when as I am on the commission one of the minorities 
in terms of the divide, it is basically divided.
    Mr. Faleomavaega. Did you say it was politically slanted?
    Mr. Yaki. I am not going to say how it was done, but I do 
not control the staff director. I do not control the staff. 
This was a briefing that came about in a rather large hurry, 
mainly because this legislation was starting to move toward the 
House Floor and to the Senate Floor. If you want to ask about--
--
    Mr. Faleomavaega. Well, you indicated earlier there were no 
findings of fact. Can you elaborate on that?
    Mr. Yaki. What happened was that a draft report came out 
which contained within it I would call extremely erroneous 
findings of fact and of conclusions from the testimony. Some of 
these were based upon again the fact that there was no allusion 
to what Congress had done prior to with the apology the 
resolution, the fact that there was no allusion to any of the 
factual inquiries performed by the Federal government or the 
Hawaiian State Advisory Commission to the U.S. Commission on 
Civil Rights.
    It came to a point, if I may say, for lack of a better 
word, my colleagues were embarrassed to put a report with this 
kind of information in it to the point where they stripped all 
the findings and recommendations from the report except for the 
one generic one about we oppose legislation that divides people 
on the basis of race, which I submit does not apply to this 
legislation. This is not about race. It is about indigenous 
peoples, but I--yes, go ahead. I am sorry.
    Mr. Faleomavaega. Go ahead. Go ahead.
    Mr. Yaki. But I will add this one extra point about 
political issues. Soon thereafter, the staff director of the 
commission reconstituted the Hawaiian State Advisory Committee 
to the commission.
    Mr. Faleomavaega. After the fact?
    Mr. Yaki. After the fact, he reconstituted it, and in its 
place put a majority of people who had signed petitions against 
this legislation. Now, the criteria for membership on state 
advisory commissions is in general ancient civil rights, 
diverse backgrounds or what have you. I would submit, and this 
is my own opinion, I would submit that the only commonality of 
the majority of the people appointed to this Hawaii State 
Advisory Committee was one salient fact that they were opposed 
to this legislation.
    The commission then proceeded to hurriedly convene a 
meeting of this committee, spent I would say to this day I do 
not know, but I can tell you that we spent more money on the 
Hawaii State Advisory Committee than probably all the other 
state advisory committees combined in a period of three months 
in order to get the commission to take a position against this 
legislation. Unfortunately for them, it failed despite all of 
that.
    I think it was because the people of Hawaii who support 
this bill came out during the hearings and made it very clear 
that this was not something they wanted the Hawaii State 
Advisory Committee to the U.S. Commission on Civil Rights to 
do. Again, this is my own opinion, but based upon fact, the 
timing was very interesting, the composition of the committee 
was very interesting, the amount of money that we spent on this 
particular committee was extremely interesting, but luckily the 
end result was that they deadlocked and did not take a position 
against the legislation.
    Mr. Faleomavaega. Just one more question, Mr. Chairman.
    Ms. Heriot. I assume you would like me to respond to that 
since this is a commission report.
    Mr. Faleomavaega. Yes, but I will get back to you later Ms. 
Heriot. Mr. Bartolomucci and Mr. Yaki, again reading the case 
of Cayetano v the United States where the Supreme Court 
purposely narrowly defined the whole race issue under the 14th 
and 15th Amendments requirement as being race-based but totally 
ignored anything having to do with the history in terms of how 
Native Hawaiians are being considered by the Congress 
historically in every way in terms of the fact that these are 
indigenous peoples exactly the same as American Indians and 
Native Alaskans even though Native Alaskans were never defined 
as a tribe itself, but Congress has given that special trust 
responsibility in the same way.
    Can you two comment? Was there any reason why the Supreme 
Court so narrowly made this decision, which was a split 
decision by the way to overturn the decisions that were made by 
the Federal District Court as well as the Court of Appeals in 
sustaining the decision?
    Mr. Bartolomucci. Well, Congressman, it was a split 
decision. The majority garnered five votes. There were two 
Justices who concurred in the judgment in a separate opinion 
and two dissenting votes on the Court. As I have testified, the 
Rice v. Cayetano decision simply doesn't answer the question 
whether Congress has the power to enact H.R. 2314 because the 
issue there was whether Hawaii could have a state law that 
limited who could vote in a state election, so it had nothing 
to do with Congressional authority.
    It had nothing to do with Congress' power to recognize 
native indigenous sovereign groups for what they are, so it is 
a very limited utility in determining the legality of the 
pending bill.
    Mr. Yaki. And I would actually argue that it is a very good 
argument in favor of the bill itself because the Court 
essentially contorted itself around the idea of how to make 
these specific findings.
    If Congress had acted earlier, if this legislation as 
authored by Senator Akaka and Congressman Abercrombie had been 
in existence at the time, I submit there would have been a 
completely different analysis of it because of the very fact 
that Congress had not made the finding which it can under the 
Indian Commerce clause that Native Hawaiians constitute 
separate indigenous peoples with certain sovereign rights. That 
lack of congressional action I think it what led the Court to 
make its decision.
    What this legislation would do is help to remedy I won't 
say the loopholes, but the issues that still remain out there 
and that continually I think bedevil the people of Hawaii and 
Native Hawaiians in terms of how do we attain the same status, 
the equal status of other Native Americans and Native Alaskans 
in this country.
    Mr. Faleomavaega. Ms. Heriot, I am sorry. I didn't mean to 
put you off. Please.
    Ms. Heriot. Thank you. I just wanted to comment on the 
commission's report. First of all, it is really quite an 
accusation to suggest the commission's briefing report on this 
bill was anything out of the ordinary. It is quite false. I was 
not on the commission at the time, but I know a lot about how 
that briefing report was put together.
    Mr. Faleomavaega. But you were not on the commission at the 
time that this was put together.
    Ms. Heriot. No, but I was a witness at that particular 
briefing.
    Mr. Faleomavaega. But were you a member of the commission.
    Ms. Heriot. No, I was not.
    Mr. Faleomavaega. OK.
    Ms. Heriot. But I have read that report thoroughly. I have 
spoken to quite a few of the commissioner who were involved in 
putting together that report. First of all, four witnesses is 
nothing out of the ordinary. Our staff works very, very hard to 
invite witnesses that take varying positions on all of the 
issues that come before us. In fact, that marks a change from 
the procedures during the previous----
    Mr. Faleomavaega. Were you aware that other organizations 
wanted to testify before the commission?
    Ms. Heriot. It is absolutely routine. We allow anyone who 
wants to present evidence, and we have a much tougher time 
getting people to testify sometimes, so four witnesses is 
perfectly routine, and you can bet we invited a lot more. I 
happen to know because I was a witness at that particular 
briefing. They were having a hard time getting witnesses 
because I was called just 72 hours ahead of time and told we 
are having a really tough time getting witnesses. Can you 
please, please, please come, and so I did.
    In years past, the commission has a rather poor history of 
not getting both sides of an issue, but in the last few years 
under the leadership of now Chairman Gerald Reynolds, we have 
new regulations, new procedures that ensure that absolutely, 
positively we get or try our very hardest to get all the major 
positions on any issue. Nothing odd about that at all with this 
report.
    Now, what is different about this report is that it moved a 
little more quickly than some of our others for a very good 
reason. It was coming before the U.S. Congress, and we thought 
that if we were going to have a report on this, it needed to be 
finished up in time to actually influence the legislature.
    Mr. Faleomavaega. My times has come up. I am sorry, Mr. 
Chairman, but can I just ask one more comment from Mr. Yaki to 
make up my portion of the time you wanted to----
    Mr. Yaki. Thank you very much, Congressman. I just wanted 
to state that you were correct. Ms. Heriot was not a 
commissioner at the time. She was not involved in the 
deliberations. The debate on this report raged for quite some 
time over the accuracy of its draft findings in the commission 
in view of the facts before the commission voted to strip all 
the findings from the report. They stripped all the 
recommendations, except for the one that talks about 
subdivision on the basis of race.
    In terms of procedures, I will tell you that this hearing 
came up out of the blue, not this one, the one on the Native 
Hawaiian Act came up very suddenly. The chartering of the state 
advisory came up very suddenly. You can just simply look at the 
facts and see for yourself exactly how it operated.
    Mr. Faleomavaega. Thank you, Mr. Chairman. I am sorry. My 
time is up.
    Ms. Heriot. I do have some comment on that. Again, that is 
an accusation against the procedures of the commission. In 
fact, in years past, prior to the administration of Gerald 
Reynolds, we had state advisory committee that were chartered 
that were really not politically balanced. We have new rules, 
and those new rules require that the commission have political 
balance on its state advisory committees. That is what 
Commissioner Yaki is objecting to.
    Mr. Abercrombie. Thank you, Ms. Heriot. I presume when you 
say political balance you don't mean those who are for civil 
rights and those who are against it?
    Ms. Heriot. No, we do not. All the members of all our staff 
have a background in civil rights.
    Mr. Abercrombie. I am sure. Maybe at this juncture I should 
indicate that the Committee may be sending written questions to 
you and to the witnesses, and the record will stay open 10 
business days, so if you care to comment further, don't feel 
that if you didn't have sufficient time to explicate everything 
you wished on this or any other element of what we are 
discussing today, please take the opportunity to send to us 
what you would like to have considered.
    I can assure you on this Committee between the staff and 
the Committee members, everything that comes is read, is read 
thoroughly and digested and shared. You are not going through 
motions when you contribute to the record in this Committee. 
Ms. Heriot? Mr. Faleomavaega, are you finished?
    Mr. Faleomavaega. Just one more. I just wanted to ask 
Sister Haunani thank you so much for your eloquent statement 
here. In your current capacity and the times that you have had 
I am sure opportunities to associate and meet with several or 
many members of Native American tribes and organizations, I 
know this is one issue that has also been raised about will 
this cause any problems in terms of the recognition process to 
the native Hawaiians as it is with our native American Indians 
from Alaska as well as the continental U.S.
    Has there been any indication in opposition from any of the 
tribes in the U.S. in terms of what the Native Hawaiians are 
trying to achieve here?
    Ms. Apoliona. Absolutely not. The National Congress of 
American Indians has stood firmly in support of passage of 
Federal recognition for Native Hawaiians as has the Alaska 
Federation of Natives, who one of their representatives is here 
this afternoon in the absence of their president, in addition 
the native groups, there have been many, other national groups 
that have been supportive of our effort because they understand 
justice, indigenous rights, et cetera, at home, and we talk 
about Kuhio Kalaniana'ole and his role as a delegate.
    In addition to his policymaking here, he was very 
instrumental in forming and beginning community activism at 
home with Native Hawaiians because of what he saw happening 
with Hawaiian people over the years in decimation of our 
community. The president of that Association of Hawaiian Civic 
Clubs, which is the established community, civic group in the 
interest of Hawaiian movement forward established by Kuhio is 
here. Levomican who is sitting in the audience.
    There has been vast and diverse and varied support, and 
certainly the native leadership of this country is supportive 
of this recognition bill for Hawaiians.
    Mr. Faleomavaega. So the major factions, indigenous peoples 
of our country----
    Ms. Apoliona. Absolutely.
    Mr. Faleomavaega. American Indians and the Native Alaskans 
fully support this.
    Ms. Apoliona. They stand with us, and they say hurry up.
    Mr. Faleomavaega. And the sensitivity alluding to this, 
well, this is something that I share the Chairman and other 
members of the Committee have taken so differently where do you 
feel that being treated in a way that this proposed is given 
that you are being treated racially, or is it because of the 
fact that you are a defined indigenous group of people just 
like the American Indians and the Native Alaskans.
    Ms. Apoliona. Our position as my testimony, my written and 
oral testimony, states our history is very similar to the kind 
of history of our other native Americans in this country. We 
believe, and we know we are aboriginal native indigenous people 
of Hawaii, first people of Hawaii, and we do not understand why 
there is this confusion, and I will leave it at that. Our 
position is we are native, aboriginal indigenous people to 
Hawaii.
    Mr. Faleomavaega. The Navajo National currently has a 
government composed of 250,000 Navajos. When they have their 
elections, can other people, the residence of Arizona, also 
participate in their elections, or are they strictly for the 
Navajo people to participate in?
    Ms. Apoliona. Congressman, I am not clear exactly how the 
Navajo Nation has their elections, but I would imagine that 
those elections of their leaders for their native government 
would be engaged in by their native people. Ultimately, for the 
Hawaiian government, I think the process of organizing and 
setting up organic documents, et cetera, will be outcomes of 
this process that we will go through.
    In terms of who ultimately becomes members of the 
government, that is going to be determined by those that create 
the organic documents. At this point, the beginning process is 
being launched. It is intended to be launched by those 
aboriginal native indigenous people of Hawaii, native 
Hawaiians.
    Mr. Faleomavaega. Thank you, Haunani. Thank you, Mr. 
Chairman.
    Mr. Abercrombie. Thank you. Ms. Heriot, on page 5 of your 
testimony, I am just curious about this. If you don't know it, 
names or groups, perhaps you could take a look and submit it 
for the record. You say activists in Hawaii have argued that 
revenue from the ceded lands should be used exclusively for the 
benefit of ethnic Hawaiians and reject the other four purposes. 
I have never had any experience with that. I have never heard 
that.
    Is there some specific reference, individuals or groups 
that you are referring to, or is that anecdotal? Do you know 
offhand? If you don't, that is all right, but I assume that 
testimony is----
    Ms. Heriot. I think this is revenue that is going through 
the Office of Hawaiian Affairs.
    Mr. Abercrombie. I am sorry?
    Ms. Heriot. I think I am referring to the revenues from the 
ceded lands that go through the Office of Hawaiian Affairs, and 
maybe I need to clarify that.
    Mr. Abercrombie. OK. Well, then I will ask Haunani. I have 
never heard OHA say that the other four purposes should be 
rejected.
    Ms. Apoliona. No. We have never said that, and actually the 
revenues that are derived from the ceded do go to the four 
other purposes. In theory, the Office of Hawaiian Affairs has 
received only 20 percent of that revenue stream. The other 80 
percent of the proprietary revenues and all of the sovereign 
revenues from the ceded land revenues go to the State of 
Hawaii.
    Mr. Abercrombie. Yes, so the State has continued, has it 
not, to exercise legislative authority over the ceded lands and 
what transpires regarding them?
    Ms. Apoliona. Absolutely. It is the State that creates the 
leases and the rents and whatever related to the----
    Mr. Abercrombie. So you have had negotiations with the 
State that ended up with the 20 percent figure, right?
    Ms. Apoliona. Yes, and it is just a revenue stream.
    Mr. Abercrombie. Yes, so all this has always been 
negotiated and concluded as a result of negotiations. It is 
never been arbitrarily decided?
    Ms. Apoliona. Right. Right. Sometimes it is been a 
struggle.
    Mr. Abercrombie. Well, yes. Yes. Then, maybe I should ask 
Judge Klein if he could come to the table as well if that is 
all right.
    Ms. Apoliona. Sure.
    Mr. Abercrombie. Because I have a question I would like to 
have his view. When one of the five purposes is, and I am 
talking about the Admissions Act now, Judge, that for the 
betterment of conditions of Native Hawaiians is defined in 
Hawaiian Homes Commission Act of 1920, as amended, is it fair 
to assume, and can you identify yourself for the record. I am 
sorry.
    Judge Klein. Yes. Thank you, Congressman Abercrombie. 
Robert Klein. I am board counsel.
    Mr. Abercrombie. Can you pull the mic a little closer?
    Judge Klein. I guess not. I will have to sit a little 
closer.
    Mr. Abercrombie. OK.
    Judge Klein. Congressman Abercrombie. I am Robert Klein. I 
am board counsel for the Office of Hawaiian Affairs.
    Mr. Abercrombie. Thank you, and you previous tenure?
    Judge Klein. I served eight years on the Hawaii Supreme 
Court as an Associate Justice.
    Mr. Abercrombie. Thank you. You are familiar obviously then 
as counsel to OHA with the five purposes associated with the 
Admissions Act.
    Judge Klein. I would like to think so. That is correct.
    Mr. Abercrombie. OK. You may have had to rule at one time 
or another, I don't know, while you were Judge, but one of the 
purposes is for the betterment of conditions of Native 
Hawaiians as defined in Native Hawaiians Home Commission Act 
1920, as amended. Am I, as a layperson, able to take from that 
it is inherent in the Admissions act that the Hawaiian Homes 
Commission Act had been amended and possibly could be amended 
in the future?
    Judge Klein. Yes, absolutely. It has been amended quite a 
few times since 1959.
    Mr. Abercrombie. OK. So that means definitions with regard 
to what constitutes the rules, regulations, et cetera of the 
Hawaiian Homes Act is subject to periodic amendment?
    Judge Klein. That is correct. As far as the beneficiary 
class, the only changes that can be made there are with the 
consent of Congress, so Congress has continuous oversight over 
the purposes and the beneficial----
    Mr. Abercrombie. So these definitions with respect to 
Native Hawaiians has always had a Congressional not just input, 
but a Congressional imprimatur?
    Judge Klein. Exactly, and that is the words of the 
Admissions Act, Federal law, says that they can be only changed 
with the consent of the United States.
    Mr. Abercrombie. And is it your understanding as well that 
should H.R. 2314 pass substantially as it exists right now, 
that this is, in fact, enabling legislation for any entity, any 
governing entity to come into existence in Hawaii under the 
auspices of this bill that it would have to pass muster than 
with the Department of the Interior and the Congress?
    Judge Klein. Yes, absolutely. That is accurate. Section 7 
talks about that entire process so that when the organic 
documents are created by the interim governing council under 
Section 7, approval has to be given by the Secretary of the 
Interior and the documents have to contain about eight specific 
points that are required by H.R. 2314 that must be covered in 
the organic documents and approved by the Secretary of the 
Interior.
    Mr. Abercrombie. So far from any imposition being able to 
be implemented by any governing entity that evolves out of this 
imposition with regard to taxes or land tenure or anything else 
like that, all of that is subject to I guess approval is the 
word, subject at least to the review of the Department of the 
Interior.
    Judge Klein. And Section 8 of the bill covers the 
negotiations, the subjects that will be negotiated between the 
three governments, so that talks about natural resources, land 
and other issues including claims of the Hawaiian people 
subject to being negotiated, and that is found in Section 8.
    Mr. Abercrombie. So this bill, if anything, is a 
springboard? It certainly isn't anything that could remotely be 
seen as an easy process? There are lots of obstacles to be 
overcome here, is there not and lots of entities to be local, 
state and Federal to be both adjudicated and worked with before 
you come to any kind of conclusion that is capable of being 
presented for final approval?
    Judge Klein. Absolutely correct. It is a process, and it is 
going to require a lot of work and dedication in the community 
back at home to come up with organic documents that satisfy the 
United States government, the Department of the Interior and 
that work well for the people.
    Mr. Abercrombie. OK. Just for the record then, in your role 
as counsel, what is your view? I won't say would you agree, but 
is it your view that Rice v. Cayetano has a--I hate to use the 
word narrow basis because that sort of implies a bit that it is 
trying to avoid an issue.
    I don't mean it that way, but has as a basis the question 
of whether state law was properly applied to a state election 
with regard to constitutional rights and the view of the Court 
was is that the way the voting base was operating in Hawaii 
that it was unconstitutional in that it was a state, that OHA 
was a state entity and, therefore, everyone should be able to 
vote in it as opposed to some of the broader questions of 
racial discrimination and so on.
    Judge Klein. Right. I mean, that is probably not exactly 
the way I would put it. I think the United States Supreme Court 
performed its constitutional role in judicial review of a state 
statute when called upon to do that by the Petitioner and came 
to the conclusion that the 15th Amendment was implicated by a 
state law that permitted only Hawaiians to vote in the affairs 
of a general election, and I guess the benefit that we have now 
from that is all of the trustees are presently served and 
elected by everyone in the State.
    Mr. Abercrombie. Yes. That takes me to a final point that I 
wanted to raise. This is in regard to whether or not there is 
support for this. Now, despite the fact that this is a state 
entity, the Office of Hawaiian Affairs, is not participation in 
the OHA elections in the hundreds of thousands?
    Judge Klein. Absolutely. We have universal suffrage here in 
these OHA elections, and some of the trustees garner----
    Mr. Abercrombie. More votes than other elected officials, 
is that correct?
    Ms. Apoliona. Absolutely. Absolutely.
    Mr. Abercrombie. Haunani, I see you nodding gleefully 
there. Would you like to say how many voted you got in the last 
election as opposed to some others, and you can leave me out if 
you wish?
    [Laughter.]
    Ms. Apoliona. No. We will say over 150,000. We will say 
that. I think the highest has been about 200,000 plus votes.
    Mr. Abercrombie. Right. Which compares favorably to any 
election from the Governor on down.
    Ms. Apoliona. Absolutely. Our trustees that are elected are 
elected in a fashion of statewide races only likened to the 
Governor and the lieutenant Governor race.
    Mr. Abercrombie. So the serious part of my question has to 
do with the fact then that people in Hawaii obviously don't 
consider the Office of Hawaiian Affairs then as representing 
some race-based entity from which they are prevented from 
having a say?
    Ms. Apoliona. Absolutely.
    Mr. Abercrombie. Because they exercise a franchise. They 
don't have to vote for you, right? They can leave it blank?
    Ms. Apoliona. That is correct, and some choose to vote. 
Some choose not to vote because some believe that this is 
really a mission for Hawaiians, but as I alluded to the 
numbers, there are many who do vote now that they have the 
opportunity who are not native Hawaiian. They vote.
    Mr. Abercrombie. And there are those who object to the 
existence of the Office of Hawaiian Affairs.
    Ms. Apoliona. Yes.
    Mr. Abercrombie. And they are free to run for office and to 
put in bills or even run for trusteeship to take OHA out of 
existence if they want, right?
    Ms. Apoliona. Yes, and they have tried, and so far they 
have failed.
    Mr. Abercrombie. Yes. Now, again I think they are a small 
minority, but nonetheless, that doesn't mean they don't have 
the right to do it, and they say so, and they say so with 
regularity as to what their views are here.
    Ms. Apoliona. Absolutely.
    Mr. Abercrombie. But my point is here is that in terms of 
popular sovereignty, it is well established that the Office of 
Hawaiian Affairs has had the approbation of the voting 
population in Hawaii pre-Rice v. Cayetano and post-Rice v. 
Cayetano.
    Ms. Apoliona. Yes.
    Mr. Abercrombie. Thank you. I think that is all I have.
    Mr. Faleomavaega. I just have one more round, Mr. Chairman, 
if I could.
    Mr. Abercrombie. Sure.
    Mr. Faleomavaega. I want to say my aloha to Judge Klein for 
being here.
    Judge Klein. Aloha, Eni.
    Mr. Faleomavaega. As you know, Judge Klein, we have had a 
very interesting history of how our nation has treated Native 
American Indians, and I have said this several times in times 
when we debate the issue of the welfare, the needs of our 
American Indian tribes and Native Alaskans. Our first national 
policy was to kill all the Indians. That was our national 
policy. Get rid of them. Then the next national policy was to 
assimilate them, make them as part of America. Then the third 
policy was to terminate them.
    They don't exist and now the latest is we need to re-
recognize that they existed as tribes. We just had a tribe here 
who over 100 years finally have been approved by this body in 
their quest for being recognized as an American Indian Tribe. 
Five or six tribes of the State of Virginia, 400 years it has 
taken them to get recognition by this Congress and by our 
government.
    Judge Klein, I have here a document that was a brief that 
was submitted on the Cayetano Supreme Court case, and I show 
that he is the Chief counsel, a gentleman by the name of John 
G. Roberts, Jr.. I believe he also made the oral arguments 
before the U.S. Supreme Court on behalf of the state of the 
respondents, and this Mr. Roberts also happens to be now the 
Chief Justice of the United States Supreme Court.
    Judge Klein. That is correct.
    Mr. Faleomavaega. And would you say that as a matter of 
basic ethics legally and all of that that the argument that the 
gentleman makes basically is to say that Native Hawaiians are 
in the same category as American Indians and Native Alaskans? 
Wasn't that basically the premise of his argument?
    Judge Klein. Well, that is absolutely correct. Now Chief 
Justice Roberts, who is a conservative constitutional scholar 
and textualist, went back and looked at what the word Indian 
and what the word tribe meant back at the time of the framers 
of the Constitution and honored those definitions and found 
that the constitutional provision under Article I, Section 8, 
the Indian Commerce Clause, was certainly broad enough to reach 
the shores of Hawaii I think were the exact words he used in 
his brief.
    We like to think we have support from the now Chief Justice 
and his rationale for saying that extending political 
recognition and legislation that favors Hawaiians is certainly 
available to Congress under Article I, Section 8 and would be 
constitutional.
    Mr. Faleomavaega. So if I was an attorney, and if someone, 
one of the best legal minds in our country, to have written and 
prepared this brief before the Supreme Court of the United 
States, who else would you recommend to be your attorney before 
the U.S. Supreme Court to make a case on behalf of the Native 
Hawaiians than Mr. Roberts?
    Judge Klein. He certainly does our legal position great 
honor when he writes like that. He is the best.
    Mr. Faleomavaega. Well, Mr. Chairman, I do want to thank 
you for your patience, and I certainly want to welcome also and 
thank our members of our panel. This issue has been with us now 
for well over 10 years or even before that. Of course, we have 
done it twice successfully already, Mr. Chairman. It just so 
happens the other body unbelievable of the testimonies that you 
hear the members of the other body saying there are no Native 
Hawaiians in existence today. It is a myth. They don't exist.
    This just blows my mind to hear from the highest authority 
of our country saying that Native Hawaiians don't exist 
anymore. It is somebody's imagination. The fact that there 
400,000 existing, to say that they don't exist, Mr. Chairman, 
this is a travesty, not only a travesty of justice, unfairness, 
cruelty. I don't know how else I could say it, but I sincerely 
hope that we get this bill out of here and get it passed behind 
this body. Thank you, Mr. Chairman, for your patience, and 
thank the members of the panel.
    Mr. Abercrombie. Thank you. Yes. I want to thank you all 
for being here and for testifying. Ms. Heriot, I want to thank 
you in particular again because as I said, it is not easy to be 
in a situation where issues are ranged against you and your 
views. Nonetheless, your position does represent some I think 
including on the Committee and perhaps on the Floor.
    My request to you is that you consider, and perhaps if you 
want to comment over the next 10 days if you care to, I would 
be pleased to receive it, the Committee would, the 
differentiation we make and that I make in putting this bill 
forward. I certainly would never consciously put forward a bill 
I believe to be unconstitutional because I thought it was 
politically convenient to do it. Believe me.
    When we put together the Office of Hawaiian Affairs for a 
constitutional amendment back in the mid and late 1970s, there 
was plenty of controversy over it, and it was not politically 
convenient to do it, so I have some experience with that. This 
bill was put forward in good faith on the basis of trying to 
establish legislatively a resolution of issues involving 
indigenous people.
    To the degree and extent that you believe that the bill is 
not written sufficiently to address that, and instead has taken 
on a caste legislatively of being racially based, I would very 
much appreciate your suggestions as to what could be done in 
the legislation to make sure that there is no question that 
this is legislation aimed at the recognition of indigenous 
people. Believe me.
    I have no pride of authorship in this, nor does Senator 
Akaka for that matter in terms of saying what we thought to be 
correctly stated legislatively with regard to the recognition 
of Native Hawaiians as indigenous people, that we thought we 
were doing in this and believe we are doing this legislatively. 
If the language is written in such a way that you conclude 
otherwise, if you could make suggestions with regard to how we 
could do that, believe me will pay close attention to it 
because we want to succeed with this.
    We don't want to go to the Supreme Court eventually and 
then have someone say I know what you want to do, but and that 
is legitimate because the recognition of indigenous people is, 
in fact, something that is constitutionally established, but 
you folks didn't do it. You wrote it the wrong way, so believe 
me. I don't want you to leave this hearing thinking that we 
believe that we have something that can go back to Moses and be 
the right thing. My own believe is that Moses had a lot more 
than 10 Commandments when he was coming down but got argued 
down to 10.
    The story goes is that Moses came down after all the days 
on the mount and people were getting very restless as they are 
here about this bill and came down and look, it took an awful 
long time. I was arguing with God after all, and I have good 
news and bad news. The good news is I got him down to 10, and 
the good news here is that we have this bill as it has evolved 
over this decade.
    The bad news is he said adultery is still in. I don't know 
you feel about that. I won't comment further on that, but we 
don't want bad news of having written legislation with one 
intention, and it was a good intention, but it failed. If you 
can grant the idea that indigenous people should be recognized 
or can be recognized constitutionally and have suggestions, we 
would be pleased to receive them.
    Ms. Heriot. I would be happy to think about that and get 
you something in 10 days.
    Mr. Abercrombie. Thank you very, very much indeed. Anything 
else? Any final comments or anything for the good and welfare? 
Thank you very, very much. Aloha.
    [Whereupon, at 1:24 p.m. the Committee was adjourned.]

    [Additional statements submitted for the record follows:]

    [A statement submitted for the record by Hon. Mark J. 
Bennett, Attorney General, State of Hawaii, follows:]

June 11, 2009

The Honorable Nick J. Rahall II
Chairman
Committee on Natural Resources
1324 Longworth House Office Building
Washington, D.C. 20515

The Honorable Doc Hastings
Ranking Member
Committee on Natural Resources
1324 Longworth House Office Building
Washington, D.C. 20515

Testimony of Hawaii Attorney General Mark J. Bennett before the House 
Committee on Natural Resources on H.R. 2314, the Native Hawaiian 
Government Reorganization Act of 2009.

    As Hawaii's Attorney General, I respectfully submit this testimony 
to the House Committee on Natural Resources, in support of the Native 
Hawaiian Government Reorganization Act of 2009. Thank you for providing 
me the opportunity to address this 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, 
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 some that the Akaka Bill creates a race-based 
government at odds with our constitutional and congressional heritage 
contradicts Congress's 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 concerns are, in my view, unjustified.
    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.
    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 
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 struck down a 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).
---------------------------------------------------------------------------
    Some 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.'' 3 Thus, Congress does not view 
programs for Native Hawaiians as being ``race-based.''
---------------------------------------------------------------------------
    \3\ See, e.g., Hawaiian Homelands Homeownership Act of 2000, Pub. 
L. No. 106-568, Section 202(13)(B).
---------------------------------------------------------------------------
    Accordingly, a Native Hawaiian Governing Entity by and for Native 
Hawaiians would similarly not constitute a ``race-based'' government.
    This is not just clever word play, 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 
4 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.
---------------------------------------------------------------------------
    \4\ 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.'' 
5 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.
---------------------------------------------------------------------------
    \5\ 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 rent) to 
native Hawaiians. 6 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.'' 7 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, and Congress would not be doing so in 
this bill.
---------------------------------------------------------------------------
    \6\ The Admission Act, Pub. L. No. 86-3, 73 Stat. 4 (1959), Section 
4.
    \7\ Id., Section 5.
---------------------------------------------------------------------------
    Some opponents of the bill have noted that 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, but is also refuted by the Supreme 
Court's Lara decision 8 issued just five 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. That cannot bar the Congress from 
trying to restore a small measure of sovereignty to the Native Hawaiian 
people.
---------------------------------------------------------------------------
    \8\ United States v. Lara, 541 U.S. 193 (2004).
---------------------------------------------------------------------------
    In addition, one of the very purposes and objects of the Akaka Bill 
is to allow Native Hawaiians to re-form the governmental structure they 
earlier lost. Thus, once the bill is passed, and the Native Hawaiian 
Governing Entity formed, the United States would be able to have a 
government-to-government relationship with that entity.
    Finally, and perhaps most importantly, the objection is, in my 
view, inconsistent with the Supreme Court's Lara decision, in which the 
Court acknowledged Congress's ability to ``restore[] previously 
extinguished tribal status--by re-recognizing a Tribe whose tribal 
existence it previously had terminated.'' 9 Indeed, Lara 
eliminates the above-described objection to the Akaka Bill, by 
recognizing Congress's ability to restore tribal status to a people who 
had been stripped of their self-governing structure.
---------------------------------------------------------------------------
    \9\ 541 U.S. at 203.
---------------------------------------------------------------------------
    Some contend that Native Hawaiians do not fall within Congress's 
power to deal specially with ``Indian Tribes'' because Native Hawaiians 
are not ``Indian Tribes.'' However, the term ``Indian,'' at the time of 
the framing of the Constitution, simply referred to the aboriginal 
``inhabitants of our Frontiers.'' 10 And the term ``tribe'' 
at that time simply meant ``a distinct body of people as divided by 
family or fortune, or any other characteristic.'' 11 Native 
Hawaiians fit within both definitions. 12
---------------------------------------------------------------------------
    \10\ 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).
    \11\ Thomas Sheridan, A Complete Dictionary of the English Language 
(2d ed. 1789).
    \12\ Some opponents of the Akaka Bill argue that including all 
Native Hawaiians, regardless of blood quantum, is unconstitutional, 
rely upon the concurring opinion of Justices Breyer and Souter in Rice 
v. Cayetano. 528 U.S. at 524. That argument is flawed because that 
concurring 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. The Akaka Bill gives Native 
Hawaiians the ability to select for themselves the membership criteria 
for ``citizenship'' within the Native Hawaiian government.
---------------------------------------------------------------------------
    Finally, some 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 should be similarly unavailing. The fact that 
Native Hawaiians over one hundred years ago maintained a government 
that was open to participation by non-Hawaiians, should not deprive 
Native Hawaiians today of recognition. It would be ironic if the 
historical inclusiveness of the Kingdom of Hawaii, allowing non-
Hawaiians to participate in their government, were used as a reason to 
deny Native Hawaiians the recognition other native groups receive.
    The Akaka Bill, under a reasonable reading of the Constitution and 
decisions of the Supreme Court, is constitutional, just as 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--are 
constitutional. The Supreme Court, as noted earlier, has made clear 
that Congress's power to recognize native peoples is virtually 
unreviewable. I respectfully submit that Congress should not refrain 
from exercising its authority and obligation to recognize native people 
simply because of the possibility the judicial branch could deviate 
from uniform precedent.
    And so I respectfully emphasize and repeat that Native Hawaiians 
are not asking for privileged treatment--they areq 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 sixty 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.'' 13
---------------------------------------------------------------------------
    \13\ 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; 
14 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 give 
official recognition to Native Hawaiians' self-determination. The Akaka 
Bill would yield equality for all of this great country's native 
peoples.
---------------------------------------------------------------------------
    \14\ In important provisions, the bill expressly reaffirms and 
retains the United States's sovereign immunity, and disclaims creating 
a cause of action against the United States or any other entity or 
person, altering existing law regarding obligations on the part of the 
United States or the State of Hawaii, or creating obligations that did 
not exist in any source of Federal law prior to enactment of this bill. 
I believe these provisions, which maintain the status quo in many 
respects pending future legislation, are extremely important, as 
passage of this legislation should not serve as any justification for 
new litigation against the United States or the State of Hawaii.
---------------------------------------------------------------------------
    As the Attorney General of Hawaii, I respectfully ask that you 
support this important legislation.
                                 ______
                                 

 Statement submitted for the record by H. William Burgess of Aloha for 
                            All 1
---------------------------------------------------------------------------

    \1\ Aloha for All, is a multi-ethnic group of men and women, all 
residents, taxpayers and almost all of whom are also homeowners 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. Aloha for All's quest in the courts and in the court of 
public opinion to restore equal justice under the law in the Aloha 
State is chronicled, in part, at: http://www.aloha4all.org .
---------------------------------------------------------------------------
    Aloha Chair and members. Aloha is for everyone but the Akaka bill 
isn't. Please consider the dangers of this bill which would sponsor a 
separate government for one race; break up and give away much of the 
State of Hawaii; set a dangerous precedent for the United States and 
almost certainly lead to secession.
    Over four years ago, Senator Dan 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.'' Enactment 
of the Akaka bill would undo 20 years of careful diplomatic protection 
of property rights of American citizens abroad and at home.
      Immediately upon enactment, superior political rights 
would be 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'' or, under Sec 10, by the 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. As 
noted above, 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, 
appurtenant reefs 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 2/3rd 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 '20s and '30s, 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.

    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?''
    In1959, in the Hawaii statehood plebiscite, over 94% 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, PhD 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,

Honolulu, Hawaii -- June 11, 2009.

H. William Burgess
299C Round Top Drive
Honolulu, Hawaii 96822
Tel.: (808) 947-3234
Fax: (808) 947-5822
Cell: (808) 372-3800
Email: [email protected]
Additional references and links:
 Paul Sullivan's ``Killing Aloha'' an excellent point by point critique 
        of S.310/H.R.105 from the 110th Congress, with the same text as 
        H.R. 2314, is still timely and worthy of your careful 
        consideration. It is available online at http://
        www.angelfire.com/planet/bigfiles40/AkakaSullivanKA110Cong.pdf 
        or http://tinyurl.com/3ydth9
 WHY ALL AMERICA SHOULD OPPOSE THE HAWAIIAN GOVERNMENT REORGANIZATION 
        BILL, ALSO KNOWN AS THE AKAKA BILL. [5-paragraph summary of 
        main points, followed by extensive references] http://
        tinyurl.com/yhhz7o
 For Media and the Public: Up-to-Date, Basic, Quick Information About 
        The Hawaiian Government Reorganization Bill (Also known as the 
        Akaka bill). Three matched pairs (companion bills with 
        identical content) of the Akaka bill are active in the 111th 
        Congress. http://tinyurl.com/6ad8w
 Major Articles Opposing the Hawaiian Government Reorganization bill 
        (Akaka bill)--INDEX (2000 to 2009) http://tinyurl.com/5eflp .
                                 ______
                                 

   Statement submitted for the record by Kenneth R. Conklin, Ph.D., 
                            Kane'ohe, Hawaii

 TESTIMONY IN OPPOSITION TO H.R. 2314, THE HAWAIIAN GOVERNMENT 
        REORGANIZATION BILL

Title: What Kamehameha hath joined together, let not Akaka rip asunder.

    June 11 is Kamehameha Day--an official holiday of the State of 
Hawaii. On the weekend there will be parades featuring men, women, 
horses, and vehicles, all adorned with fresh flower leis. The Royal 
Hawaiian Band will play, hulas will be performed on decorated flatbed 
trucks rolling down the street; and people will enjoy poi, sushi, 
manapua, malasadas, shave ice, and all the foods of Hawaii's beautiful 
rainbow of races and cultures.
    The greatest accomplishment of King Kamehameha The Great was to 
unify all the Hawaiian islands under a single government in 1810, 
putting an end to centuries of warfare and the slaughter of hundreds of 
thousands of native Hawaiian men, women and children.
    But now once again we are threatened with the Akaka bill in 
Congress, whose primary purpose is to rip us apart along racial lines. 
It would authorize creation of a racially exclusionary government 
empowered to negotiate with federal, state and local governments for 
money, land, and legal jurisdiction. It would spawn new wars in 
courtrooms throughout America, and especially in Hawaii, as lawyers get 
rich fighting over all the elements of sovereignty including land 
ownership, voting rights, labor laws, zoning regulations, child custody 
when one parent has Hawaiian blood and the other does not; etc. There's 
no simple way to divide Hawaii's lands racially, because ethnic 
Hawaiians are thoroughly intermarried and assimilated throughout all 
neighborhoods. In Hawaii there are rich neighborhoods and poor ones, 
professionals and laborers; but always there are ``Hawaiians'' and 
``non-Hawaiians'' working, playing, and praying side by side. Separate 
governments by race in Hawaii would create great injustice and social 
upheaval, reminiscent of the splitting apart of India to create 
Pakistan and the subsequent exchange of populations, land, and houses. 
Today's relations between India and Pakistan might characterize how 
things would turn out in Hawaii.
    The Kingdom founded by Kamehameha was multiracial in all aspects. 
The reason he succeeded when all previous warrior chiefs for 1500 years 
had failed, was because he used British-supplied ships, guns, and 
cannons; together with the expertise of English sailors John Young and 
Isaac Davis. A grateful Kamehameha gave Young and Davis chiefly rank. 
He appointed Davis as Governor of O'ahu. More importantly, Kamehameha 
appointed John Young (Hawaiian name Olohana) as Governor of 
Kamehameha's home island (Hawaii Island), gave him land and a house 
immediately next to the great Pu'ukohola Heiau, gave him a daughter to 
be his wife, and gave him a seat next to himself in the ruling council 
of chiefs. John Young II (Hawaiian name Keoni Ana) was Kuhina Nui under 
Kauikeaouli Kamehameha III--the second-highest office in the nation. 
Every law was required to be signed by both the King and the Kuhina 
Nui, who in effect had veto power over the King. The granddaughter of 
John Young was Queen Emma, wife of Alexander Liholiho Kamehameha IV, 
and founder of Queen's Hospital and St. Andrews Cathedral.
    John Young was so important to the founding of the Kingdom that his 
tomb is in Mauna Ala (the Royal Mausoleum on Nu'uanu Ave.), where it is 
the only tomb built to resemble a heiau, and is guarded by a pair of 
pulo'ulo'u (sacred taboo sticks). Yet the Akaka bill would deny John 
Young membership in the Akaka tribe.
    For short videos and audios about John Young, Father Damien (soon 
to be Saint Damien), navigator Mau Piailug, and other Hawaiian cultural 
heroes who lack Hawaiian blood and would be excluded under the Akaka 
bill, see http://akakabill.org/audio-downloads/
    The first Constitution of Hawaii was proclaimed by an all-powerful 
King in 1840 and bears two signatures: Kamehameha Rex (Kauikeaouli 
Kamehameha III) and Keoni Ana (John Young Jr.).
    The first sentence of that first Constitution, known to historians 
as the kokokahi sentence, was written on advice of American missionary 
William Richards. It is perhaps the most beautiful expression of unity 
and equality ever spoken or written: ``Ua hana mai ke Akua i na 
lahuikanaka a pau i ke koko hookahi, e noho like lakou ma ka honua nei 
me ke kuikahi, a me ka pomaikai.'' In English, it can be translated 
into modern usage as follows: ``God has made of one blood all races of 
people to dwell upon this Earth in unity and blessedness.'' For further 
information see ``The Aloha Spirit--what it is, who possess it, and why 
it is important'' at http://tinyurl.com/66w4m2
    The Akaka bill would do exactly the opposite of the one-blood 
concept, ripping us apart for no reason other than race, establishing a 
binary opposition of ``us vs. them,'' dividing Hawaiian children from 
non-Hawaiian parents, spawning jealousies between members of the Akaka 
tribe and their cousins who are not allowed to belong. This is not 
aloha.
    Instead of one Hawaii there would be two. A government composed 
exclusively of ethnic Hawaiians would constantly demand more and more 
money, land, and special rights to be taken away from the ever-
diminishing government representing all Hawaii's people. Ethnic 
Hawaiians would vote for State Senators and Representatives at the same 
time they are voting for tribal leaders who will sit across the 
bargaining table from them. This dual voting is far more serious in 
Hawaii than in any other state, because ethnic Hawaiians comprise 20% 
of the State's population, and politicians generally kow-tow to them 
out of fear of racial bloc voting. For example, Clayton Hee was head of 
the Office of Hawaiian Affairs for many years, and now sits as head of 
the state Senate committee that handles Hawaiian affairs. His thumb 
will weigh heavy on the scale when he decides how much of the State of 
Hawaii should be given to the Akaka tribe. 22 out of 51 members of the 
House belong to the ``Hawaiian'' caucus.
    The Kingdom of Hawaii was founded by people of different races 
working together on the battlefield and in the government. That 
cooperation continued throughout the Kingdom's history. Every person 
born in the Kingdom, regardless of race, was thereby a subject of the 
Kingdom with all the same rights as ethnic Hawaiians. Immigrants could 
become naturalized subjects of the Kingdom, with full rights; and many 
Asians and Caucasians did so. From 1850 to 1893, about 1/4 to 1/3 of 
the members of the Legislature at various times were Caucasians 
appointed by the King to the House of Nobles and also elected to the 
House of Representatives (and later elected to the House of Nobles 
after a Constitutional change). Nearly all government department heads 
and judges were Caucasian. At the time the monarchy was overthrown in 
1893 only 40% of Hawaii's people had a drop of Hawaiian native blood; 
and by the time of the first U.S. Census (1900) after Annexation, only 
26% were full or part Hawaiian. The Hawaiian Government Reorganization 
bill (Akaka bill) proposes a government of, by, and for ethnic 
Hawaiians alone. There has never been a unified government for all the 
Hawaiian islands that included only ethnic Hawaiians, either among the 
leaders or among the people.
    The Reform Constitution of 1887 (bayonet Constitution) had the 
primary purpose of fighting corruption by severely limiting the power 
of the King. It was actually a revolution, since a mob of 1500 armed 
men gave the King the choice of signing the Constitution or being 
ousted. One part of that Constitution denied voting rights to Asians. 
It was the first time in the history of Hawaii that voting rights were 
denied on the basis of race. But that evil in 1887 was embraced by 
Kalakaua and the natives just as much as it was embraced by the 
Caucasians, because both groups saw the rapidly rising Asian population 
as a threat to their joint hegemony. The number of Asian immigrants who 
gave up citizenship in the land of their birth to become naturalized 
subjects of the Kingdom was small. But Asians were rapidly becoming the 
majority race. All their babies born on Hawaiian soil were 
automatically subjects of the Kingdom and would become eligible to vote 
20 years later unless something was done. That's why Kalakaua never 
protested the disenfranchisement of Asians, and signed the new 
Constitution to hang onto his crown at their expense. Today we once 
again have Hawaiian sovereignty activists telling Asians that they are 
merely settlers in an ethnic Hawaiian plantation even if their families 
have been here for seven generations. The activists demand that Asians 
know their place, which is to be subservient to anyone with a drop of 
Hawaiian blood; and to help ethnic Hawaiians overthrow the yoke of 
American occupation and oppression. See a book review of ``Asian 
Settler Colonialism'' (UH Press, 2008) at http://tinyurl.com/8mkdmj
    Today, everyone born or naturalized in Hawaii or anywhere else in 
the U.S. is a citizen of the U.S. with full voting rights, full 
property rights, and equal protection under the law. We can keep it 
that way only by defeating the Akaka bill. Please see ``Hawaiian 
Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha 
State'' at http://tinyurl.com/2a9fqa
    A letter to President Obama asks him to consider the evils of the 
Akaka bill in light of African-American history and aspirations. 
Suppose we create a government exclusively for all 40 Million Americans 
who have at least one drop of African blood, and empower that Nation of 
New Africa to negotiate for money, land, and jurisdictional authority. 
Would that be good for America? Would it be good for African-Americans? 
The impact on Hawaii of passing the Akaka bill would be far worse than 
the impact on all of America of creating a New-Africa tribe. That's 
because only 13% of Americans have at least one drop of African blood, 
whereas 20% of Hawaii's people have at least a drop of Hawaiian blood. 
America had a racial separatist movement, just as the Akaka bill heads 
the list of Hawaiian separatist proposals. But the black separatists 
like Elijah Muhammad, Louis Farrakhan, the Black Panthers, and Malcolm 
X (before his pilgrimage to Mecca), fortunately lost the battle for 
hearts and minds to integrationists like Martin Luther King. The letter 
to President Obama can be seen at http://tinyurl.com/bl9rvv
    On Wednesday, June 15, 2005 the Grassroot Institute of Hawaii (a 
local think-tank) published an advertisement in the Honolulu Advertiser 
that took up almost the entirety of page 14. The ad featured a huge 
photo of the Kamehameha Statue at Ali'iolani Hale, together with text 
(below). The beautiful ad, in shades of gold, brown, red, and white, 
can be downloaded in pdf format at: http://tinyurl.com/agafh
    Here is the text of the ad: ``Kamehameha united us all. Long before 
he unified the islands in 1810, Kamehameha the Great brought non-
natives on to his team and into his family. Ever since then, non-
natives have continued to intermarry, assimilate and contribute to the 
social, economic and political life of Hawaii. Most Native Hawaiians 
today are mostly of other ancestries and Hawaii's racial blending has 
become a model for the world. Akaka would divide us forever. The Akaka 
bill would impose on the people of Hawaii an unprecedented separate 
government to be created by Native Hawaiians only. It would require the 
U.S. to recognize the new government as the governing body of ALL of 
the Native Hawaiian people whether a majority of Hawaiians agreed or 
not--no vote, no referendum, no chance to debate. On his deathbed, King 
Kamehameha the Great said, ``I have given you--the greatest good: 
peace. And a kingdom which--is all one--a kingdom of all the islands.'' 
The Akaka Bill would divide the people of Hawaii forever and undo the 
unification which made Kamehameha not only the greatest of the Hawaiian 
chiefs, but one of the great men of world history.''
    We've all heard the closing line spoken by ministers presiding over 
weddings: What God hath joined together, let no man put asunder.'' 
Today, in honor of Kamehameha Day, let's say: What Kamehameha hath 
joined together, let not Akaka rip asunder.
                                 ______
                                 

    Statement submitted for the record by Kai Landow, Vice Consul, 
                 Hawaiian Embassy, Germantown New York

    The continuation of a racist policy by using the Hawaiian 
reorganization act.
DECLARATION OF RIGHTS (1839),
Both Of The People & Chiefs.
KaMehaMeha III Hawaiian Kingdom

    ``God hath made of one blood all nations of men to dwell on the 
earth,'' in unity and blessedness. God has also bestowed certain rights 
alike on all men and all chiefs and all people of all lands. These are 
some of the rights which He has given alike to every man and every 
chief of correct deportment; life, limb, liberty, freedom from 
oppression; the earnings of his hands and the productions of his mind, 
not however to those who act in violation of the laws.

The Great Mahele of 1848

    The land will be held by the King, the chiefs and the people in 
common

    The U.S. Attorney General Eric Holder is right that the dialogue 
about race is faced with cowardice. Even the reaction to his comments 
illustrated his point. Fox news pointed out the mistake of the Attorney 
General being so unprofessional as to publically discuss political 
issues.
    We in Hawaii seem to have this conversation everyday! Race is at 
the core of the most everything here, whether it is the food we eat, 
the form of English we use or the issue of our civil and political 
rights. The State of Hawaii is formed on racism. We note the very 
foundation as a State is codified by a race based view of the law.
    Americans pride yourselves on a democratic base for your 
constitution and knowing that over the years adjustments have been made 
to create a more perfect union. Today of course, arcane concepts of 
racial inequality have been expunged from the governance of the union. 
We witnessed the election of the first African American president and 
so we must conclude the U.S. has moved passed its race based laws of 
any kind or not?
    So we have to ask ourselves Hawaiians and Americans alike, why in 
2009 does the American government not only to continue to force an 
institutional racism on many of its citizens but upon people who 
legally assert their sovereignty? Brown V. Board of Education, Plessey 
V. Ferguson seemed to have no effect on modern views and leave 
Hawaiians in a Dred Scott V. Sanford status. Hawaiians were [allegedly] 
made American citizens in 1900 without the right to vote or make legal 
claims to their trust lands. Their Royal Patent land titles were not 
honored in court, except those of a select few were recognized [The 
American sugar planters and supporters]. Hawaiians are 3/5 of a man in 
the court at best.
    From the Organic act April 30, 1900
    That all persons who were citizens of the Republic of Hawaii on 
August twelfth, eighteen hundred and ninety-eight, are hereby declared 
to be citizens of the United States and citizens of the Territory of 
Hawaii.
    We know that only about 3,000 people had become citizens of the 
Republic of Hawaii and perhaps half of them signed under duress. The 
U.S. has mislaid the other 77,000 people.
    When the right to vote was given to all people in the territory the 
American population was substantial enough to prevent democracy from 
returning control to the Hawaiians. Furthermore the Americans had taken 
physical control of much of the land as to prevent any legal challenges 
to ownership. The courts have become myopic and have no real ability to 
see original title sources of the land grants and seem to base title as 
having been originated somewhere in the 1920s. The Supreme Court had in 
the past recognized Hawaiian Kingdom land titles in Carter V Hawaii 
1906, Damon V Hawaii 1904 and Kawananakoa V Polyblank 1907.
    At the Supreme Court of the United States [SCOTUS] on February 25, 
2009 we saw The State of Hawaii and the Federal government arguing that 
racism was their basis for land ownership of 2 million acres in Hawaii. 
OK, they did not use those words and it is a more complicated story 
than that. Let me say though, if the United States of America 
repudiated their race based claims in the law they would lose any claim 
to the lands I mentioned!
    How can the U.S. have a race based land title? I have to give a 
little history here, A Hawaiian one. In 1839 KaMehaMeha III formed a 
constitutional monarchy based on the English model. This was a 
formalization of a unified government body in the Hawaiian archipelago 
that had begun around 1812. In a sense the Hawaiians ceased to be 
tribal people as understood in the European mind. Over the next 54 
years the Nation known as the Hawaiian Kingdom signed treaties with at 
least 20 Nations [France, England, Japan, Italy and the USA for 
example.] They had at least 90 foreign legations and practiced 
international commerce. So it was a legally recognized independent 
nation state and a modern multi-cultural society.
    Then in 1893 a group of greedy sugar planters [Dole, Thurston. Et 
al] conspired with the U.S. envoy John L. Stevens to depose Queen 
Liliuokalani. Permission was granted from the U.S. State Department for 
Stevens to have the Marines from the warship USS Boston and land in 
Honolulu to aid the sugar Planters in taking over the government for 
the interest of the United States. What were those American interests?
From the
 BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PETITIONERS
 STATE OF HAWAII, ET AL., PETITIONERS v. OFFICE OF HAWAIIAN AFFAIRS, ET 
        AL.
February 2009

    The strategic significance attached to Pearl Harbor is particularly 
inconsistent with the notion that the Congress thought it was acquiring 
imperfect title. The possibility that the United States military might 
one day lose access to Pearl Harbor (which the monarchy had granted on 
an exclusive but revocable basis, was a primary motivation for annexing 
Hawaii. See H.R. Rep. No. 1355, 55th Cong., 2d Sess. 4
    The United States invaded and replaced the Hawaiian Kingdom so why 
did they then call themselves the Republic of Hawaii? I believe they 
had two main hurdles to legitimizing this unprovoked act of war. 
Firstly, 20 major nations had treaties of friendship with Hawaii [as 
well as their own desires to control it ports] and would object to this 
violation of the law of nations in force at that time. Secondly, that 
of the Supremacy clause [All treaties being the Supreme law of the 
land] and the Law of Nations! By international standards the U.S. 
actions were illegal and they felt compelled to try to answer these 
issues by claiming a phony civil war, with the victory, President of 
the Republic Sanford Dole conveniently asked to be annexed into the 
United States.
    This phony Republic claimed to own the government, its lands and 
its subjects and delivered them into the hands of the US. We don't 
really know as a matter of law what the Republic actually had 
possession of; though I can tell you for certain it wasn't all of 
anything. For instance you cannot seize foreign citizens and force them 
to be your own citizens without agreement, we call that slavery. 
Further we can find no statute in the U.S. constitution to support the 
seizure of foreign citizens. We can look at the Amistad case [1839] to 
find the U.S. position on free born citizens.
    From the SCOTUS Amistad opinion
    They are natives of Africa, and were kidnapped there, and were 
unlawfully transported to Cuba, in violation of the laws and treaties 
of Spain, and the most solemn edicts and declarations of that 
government.
    The Hawaiian Nationals are natives of the Hawaii and were 
essentially kidnapped into a foreign land. Instead of them moving 
laterally, the U.S. just moved the jurisdiction out from under them. 
These actions were in violation of the laws and American treaties, and 
the most solemn edicts of the U.S. government.
        and the negroes, (Cinque, and others,) asserting themselves, in 
        their answer, not to be slaves, but free native Africans, 
        kidnapped in their own country, and illegally transported by 
        force from that country; and now entitled to maintain their 
        freedom.
    Hawaiians maintain their freedom and see no difference in legal 
status then free born Africans in 1839 [ironically the same year 
Kamehameha III establishes a modern government] who found legal 
vindication in the U.S. constitution. We note that they were considered 
native Africans, Mendi people and not a racial group. The Supreme Court 
found they had no jurisdiction to deport them back to Africa, being 
free men. So we wonder what basis the courts today find jurisdiction 
over Hawaiian nationals. We have pressed the courts in numerous 
filings, including Habeas Corpus and the courts have refused to address 
directly this issue. The State of Hawaii continues to arrest and hold 
our citizens without judicial review of their legal status.
    The Republic succeeds in 1898 with a new president, William 
McKinley [and as a result of the Spanish/American war] to move to annex 
Hawaii. In the gift package to the US, was the lands known as the Crown 
Lands, these are approximately two million acres of the land for the 
use of the government of the Hawaiian Kingdom and for the benefit of 
the Subjects for common beneficial use. The Crown made these lands a 
private trust for the benefit of this specific group of beneficiaries, 
Hawaiian Kingdom Subjects. Their contemporary status would be for the 
heirs of those specific people.
    In the Land grab, that was the point of occupation the Republic 
made themselves the trustee of the Crown lands and Ceded them to the 
Americans who took over the trusteeship.
    How did the Newlands and Organic Act change history? The Hawaiian 
Nation entered if you like the debate in the Senate June 14, 1898 and 
came out a Hawaiian race. Mr. Cochran, Democrat Missouri said Failure 
to annex the Hawaiian Islands would invite war Hawaii would be 
revolutionized and in five years it would be given over to pagan 
control. I find it interesting that the Kingdom was founded as a 
Christian nation and yet it still is viewed as pagan regime. So what 
happened to the nation?
    Shoots! Where did those 54 years disappear to? Actually 231 years, 
because the United States claimed Hawaiians were a racial group of 
people that existed before 1778. What happen in 1778? James Tiberius 
Cook arrived in Hawaii. So why do they need to go to a time before 
Cook? Because his seamen were spreading their Aloha with the Hawaiian 
maids and making little Hapa [mixed-raced babies?] children.
    What happens in Law if the 54 or more years of democratic 
governance still has standing? The Kingdom still exists! Then what? Can 
a race be a government and make legal claims on a multi-cultural 
governments interest? I find this construct very difficult. It has been 
reinforced by Mancari V. Morton which determined Special rights for 
Indians based on Blood Quantum. There is a push by the Office of 
Hawaiian Affairs to make Hawaiians Indians. Haunani Apoliona head of 
OHA claims they are vulnerable until they become under the control of 
the Bureau of Indian Affairs. This would afford these Special rights 
and exchange them for absolute ownership of their lands.
    Again, if you remove the race-based classification, you are left 
with private ownership by the original people of the Hawaiian Islands. 
Why then do the Hawaiians fear to discard the race based group? Because 
many people believe that the only way to make the Americans obey the 
laws of the United States is to give them most of their assets. So it 
comes down to giving 2 million acres in exchange for 200 million 
dollars [A trillion dollars worth of land at least] and some land 
[maybe a few hundred acres] to collect rent from. This is the proposed 
settlement for the Crown Lands alone. This money doesn't even go to 
Hawaiians, but a State agency known as the Office of Hawaiian Affairs 
[OHA] of whom they still need to beg for benefits. OHA purports to 
represent native Hawaiians. How does this agency define this group?
    Native Hawaiians are defined as:
        any descendant of not less than one-half part of the races 
        inhabiting the Hawaiian Islands previous to 1778, as defined by 
        the Hawaiian Homes Commission Act, 1920, as amended; provided 
        that the term identically refers to the descendants of such 
        blood quantum of such aboriginal peoples which exercised 
        sovereignty and subsisted in the Hawaiian Islands in 1778 and 
        which peoples thereafter continued to reside in Hawaii.
    In fairness OHA says on their website they can serve anyone with 
any measure of Blood Quantum and yet OHA said recently that resources 
of the settlement will be for the Native Hawaiians described under the 
1920 HHCA act. The resources they claim belong to the Hawaiian Kingdom 
and are held in trust for its subjects of any race. The use of the 
Blood quantum is very effective in disrupting Hawaiian nationalism. 
Edward Said, the late Harvard professor called it the chauvinism of the 
disenfranchised. Set to fight amongst themselves over insufficient 
resources people will seek to define themselves into groups based on 
inaccurate demarcations of entitlement.
    The frustration here is that the Americans actions are not in 
dispute. They freely admit that their actions were illegal and that 
seizing Hawaiian land and assets was the point. They have not only 
admitted in the Apology resolution to their thievery but in numerous 
reports [The Broken Trust, Mauka to Makai, etc] they show how they used 
the courts and the General store, which created a credit system that 
can only be paid off with the forfeiture of their land.
    So there are two realities that are very hard to swallow. The 
Americans still argue against their own admissions of guilt in the 
courts. The Amicus brief by the U.S. in OHA v. State of Hawaii argues 
the Republic was legitimate and gave the U.S. perfect title to Hawaiian 
lands. They know it is a matter of fact in the historical record of the 
U.S. conspiracy to create the Republic.
    From the SCOTUS opinion by Justice Alito on the Ceded Lands 07-1372
        In 1893, [a] so-called Committee of Safety, a group of 
        professionals and businessmen, with the active assistance of 
        John Stevens, the United States Minister to Hawaii, acting with 
        the United States Armed Forces, replaced the [Hawaiian] 
        monarchy with a provisional government.
    The second are the conclusions of many people that somehow the 
despite the lack of legal basis there exists a real claim by the State 
of Hawaii and the American government here. They have very carefully 
avoided the claim of time. Too long a time has passed, so sad. They 
know that time extinguishment disembowels many other legal threads that 
create a democracy. Professor Jon Van Dyke tried to argue a 100 year 
rule in his book Who owns the Crown lands? He posited that laws 
disappear after a hundred years pass and I would guess that would 
include the U.S. Constitution. If they could have used this concept 
they would have never accepted the Hawaiian Kingdom Statutes. That is 
why today the State uses the State of Hawaii revised Statutes! What is 
revised? The Hawaiian Kingdom statutes are the basis for what is the 
State of Hawaii's legal foundation. This includes the Great Mahele, the 
convention to quite land titles. From this, all land in the Hawaiian 
archipelago with given Allodial title to the original owners of the 
land, the Hawaiians!
    This argument of political settlement with a racial group over the 
ownership of a democratic nations land holdings is crap. It violates 
all the concepts of international law today and in 1893. So why do most 
people accept the racial status put upon the Hawaiian Nation?
    We have yet to have that debate suggested by the U.S. attorney 
general Holder and Americans are not prepared to deal with the 
ramifications of accepting responsibility for the injustices to African 
Americans, First Nations, Asians, Hispanics, Hawaiians, ETC. There is a 
price to pay, a concrete price that is about real money and the return 
of real land. This whole mess is just so inconvenient for Americans and 
in this time of economic downturn it is not appropriate to dispense 
justice.
    What is the point of continuing to force Blood Quantum 
qualifications on first nations and Hawaiians? This is clearly not what 
Hawaiians want and they have the right to determine their own citizens. 
I know a few people within first nations argue to keep these laws and a 
few will always profit by accepting the American line. It appears that 
the Supreme Court lead by Chief Justice Roberts is preparing to remove 
race based rights. The Native American Rights Attorney Kim Gottschalk 
told me of his fear the SCOTUS would overturn Mancari and then they 
would have nothing.
    The solution proposed by the American representatives to congress 
from Hawaii is the Akaka bill, S1011/HR2314. The Akaka bill is designed 
to put native Hawaiians under a similar statue as American Indians.
    The Native Hawaiian people are an indigenous people this is not 
race-based legislation,'' Rep. Mazie Hirono, D-Hawaii 6/11/09
    I can only infer that Indigenous is the new minority. For over a 
hundred years the Americans have made Indigenous a race in terms of 
Hawaiians and if you can become a recipient of benefits from the Akaka 
bill by living in Hawaii for one year, I think she is correct. The main 
thrust of previous drafts of the bill is to give sovereign ownership of 
land to the military and the State. Who are these native Hawaiians that 
will form some kind of government if they are not raced-based?
    What do you do when faced with a seemingly fatal blow to raced 
based rights? You embrace it and demand human rights! We for too long 
have accepted the ideas of the colonizer in a vain attempt to scrape 
together what little we can. The result is the one the American 
Government always wanted and needed. The direct theft of land and 
resources belonging to sovereign nations they themselves recognized and 
thus appearing to be just in the seizures.
    So how then does America claim the race based ownership over 
Hawaii? When you claim a guardian/ward relationship over a tribal 
people, it appears their land title is held by the guardian. This is 
why those 54 years need to be desperately extinguished.
    It is the appearance of legal and moral correctness that United 
States desperately needs. This is the vulnerable spot in their armor. 
If it is laid open that they are not a nation of law, then what claim 
of democracy can they have, what legitimacy lay in the courts. They 
fear the removal of the veil and the exposure of raw empire. As former 
President Clinton said One day we might not be the big dog on the block 
and how will the world treat us if we don't do the right things now?
    To continue to argue nebulas legal positions will only aid the 
claim of legitimacy the Americans hold now. Embrace Human rights! 
Embrace original ownership rights, international sovereignty rights and 
see what comes of that.
    The Akaka bill continues the oppression and piratical standard of 
the American nation. We appeal to your better nature and entreat you to 
begin negotiation with the very people you intend to pronounce more 
unwelcome legislation upon. This bill cannot fix what legal problems 
still exist for the U.S. and which the Organic Act, Annexation or 
Plebiscite could not.
    Mahalo Nui

                                 
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