[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
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\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.
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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
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\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
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\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
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\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.
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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
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\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.
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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).
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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
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\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