[Senate Hearing 111-283]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-283

             NATIVE HAWAIIAN GOVERNMENT REORGANIZATION ACT

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

                                HEARING

                               before the

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                             AUGUST 6, 2009

                               __________

         Printed for the use of the Committee on Indian Affairs







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                      COMMITTEE ON INDIAN AFFAIRS

                BYRON L. DORGAN, North Dakota, Chairman
                 JOHN BARRASSO, Wyoming, Vice Chairman
DANIEL K. INOUYE, Hawaii             JOHN McCAIN, Arizona
KENT CONRAD, North Dakota            LISA MURKOWSKI, Alaska
DANIEL K. AKAKA, Hawaii              TOM COBURN, M.D., Oklahoma
TIM JOHNSON, South Dakota            MIKE CRAPO, Idaho
MARIA CANTWELL, Washington           MIKE JOHANNS, Nebraska
JON TESTER, Montana
TOM UDALL, New Mexico
AL FRANKEN, Minnesota
      Allison C. Binney, Majority Staff Director and Chief Counsel
     David A. Mullon Jr., Minority Staff Director and Chief Counsel














                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on August 6, 2009...................................     1
Statement of Senator Akaka.......................................     3
Statement of Senator Barrasso....................................     2
    Prepared statement...........................................     2
Statement of Senator Dorgan......................................     1
Statement of Senator Inouye......................................     4
    Prepared statement...........................................     5
Statement of Senator Murkowski...................................     6
    Prepared statement...........................................     6

                               Witnesses

Apoliona, Hon. Haunani, Chairperson, Board of Trustees, Office of 
  Hawaiian Affairs...............................................    15
    Prepared statement...........................................    18
Bartolomucci, H. Christopher, Partner, Hogan & Hartson LLP.......    47
    Prepared statement...........................................    49
Benjamin, Stuart M., Douglas B. Maggs Professor of Law, Associate 
  Dean for Research, Duke Law School.............................    30
    Prepared statement...........................................    33
Danner, Robin Puanani, President/CEO, Council for Native Hawaiian 
  Advancement; accompanied by Steven Joseph Gunn, Attorney and 
  Adjunct Professor of Law, Washington University in St. Louis...    51
    Prepared statement...........................................    53
Hirsch, Hon. Sam, Deputy Associate Attorney General, U.S. 
  Department of Justice..........................................     7
    Prepared statement...........................................     9
Kane, Hon. Micah A., Chairman, Hawaiian Homes Commission.........    45
    Prepared statement...........................................    46

                                Appendix

Bennett, Hon. Mark J., Attorney General, State of Hawaii, 
  prepared statement.............................................   124
Burgess, H. William, Founder, Aloha for All, prepared statement..   116
Coburn, MD, Hon. Tom A., U.S. Senator from Oklahoma, prepared 
  statement......................................................    73
Gunn, Steven Joseph, Attorney and Adjunct Professor of Law, 
  Washington University in St. Louis, prepared statement.........    75
Kaaa, Stephen, President, Native Hawaiian Chamber of Commerce, 
  prepared statement with attachment.............................   112
Loa, Hon. Maui, Chief, Hou Band of native Hawaiian Indians of the 
  Blood of Hawaii, prepared statement with attachment............    89
Response to written questions submitted by Hon. Byron L. Dorgan 
  to H. Christopher Bartolomucci.................................   178
Van Norman, Mark, Member, Cheyenne River Sioux Tribe (Lakota) of 
  South Dakota, prepared statement...............................    99
Additional prepared statements and supplementary information 
  submitted for the record:
    Aki, Zuri, prepared statement................................   138
    Alexander, Hon. Lamar, U.S. Senator from Tennessee, article..   150
    Arakaki, Earl, prepared statement............................   140
    Arizona Republic Editorial...................................   153
    Boston Herald editorial staff, article.......................   154
    Chapman, Tim, article........................................   154
    Clegg, Roger, article........................................   155
    Fein, Bruce, article.........................................   170
    Foster, Shelby, prepared statement...........................   136
    Fukuda, Robert K., letter....................................   176
    Gessing, Paul J., letter.....................................   175
    Gibson, Michael W., prepared statement.......................   134
    Kravet, Toby M., prepared statement..........................   137
    Kuroiwa, Jr., James I., prepared statement...................   122
    Letters to the Editor, The Honolulu Advertiser............. 157-169
    Macdonald, Tom, prepared statement...........................   148
    Shapiro, Ilya, articles and legal brief......................   141
    Smith, Garry P., prepared statement..........................   140
    U.S. Commission on Civil Rights, prepared statement..........   172
Written questions submitted by Hon. Byron L. Dorgan to...........
    Stuart M. Benjamin...........................................   190
    Hon. Sam Hirsch..............................................   188

 
             NATIVE HAWAIIAN GOVERNMENT REORGANIZATION ACT

                              ----------                              


                        THURSDAY, AUGUST 6, 2009


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:28 p.m. in room 
628, Dirksen Senate Office Building, Hon. Byron L. Dorgan, 
Chairman of the Committee, presiding.

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

    The Chairman. I am going to call the hearing to order.
    This is a legislative hearing on the Senate Indian Affairs 
Committee Senate Bill 1011, the Native Hawaiian Government 
Reorganization Act of 2009. The bill outlines the process for 
the reorganization of a Native Hawaiian government for the 
purposes of reestablishing a government-to-government 
relationship with the United States. It also reaffirms that the 
Native Hawaiian people have the right to provide for their 
common welfare and to adopt an appropriate governing document 
or series of documents as they reorganize the government.
    We as Congress have a distinct and undeniable trust 
responsibility toward the First Americans of the United States, 
and with the passage of this legislation, the Native Hawaiian 
people will once again have an opportunity for self-governance 
and self-determination. This, I think, is an important step for 
our Country in an attempt to redress the wrongs that our 
Government has committed against the Native Hawaiian people.
    Congress has reaffirmed the rights of self-determination 
and self-government for many tribes in the lower 48 States and 
in Alaska. Native Hawaiians have been absent in these efforts, 
and the time has come for us to initiate this proposed process 
for their people.
    While other indigenous groups can utilize the 
administrative process for Federal recognition, that 
administrative process is not available to Native Hawaiians. 
Moreover, that process was designed to evaluate Native American 
groups in the continental United States. So my colleagues and 
friends from Hawaii have introduced similar legislation to S. 
1011 since the 106th Congress. Each of these proposals has 
afforded our Committee an ample record regarding this 
legislation. Over the past few years, a great number of 
compromises have been made by our colleagues and many are 
reflected in the legislation before the Committee today. These 
changes have addressed many concerns, but maintain the ultimate 
goal of establishing a process to reorganize a Native Hawaiian 
government.
    It is important to note that this will not be the first 
time that Congress has recognized Native Hawaiians as the 
indigenous people of Hawaii. Congress enacted more than 150 
statutes dealing with Native Hawaiians, providing evidence of 
an important relationship and providing them with certain 
benefits and reaffirming our obligations to Native Hawaiians.
    In addition, in 1993, Congress passed the Native Hawaiian 
Apology Resolution. I am sure that the Senators from Hawaii 
will better describe the history of this relationship and in 
much greater detail, showing that Native Hawaiians clearly had 
a previous political relationship with this Country. While I 
strongly prefer that our indigenous groups go through the 
Federal acknowledgement process, Native Hawaiians have a long 
history of a similar but distinct relationship with the United 
States. This bill will provide Native Hawaiians greater 
autonomy in determining their internal affairs and 
responsibility for their common welfare and their future 
economic and social development.
    I have joined as a co-sponsor, as I have in the past, for 
this legislation. Our colleagues, Senator Akaka and Senator 
Inouye, have worked on this legislation. We will be hearing 
from witnesses today, but before we do, I wish to call on any 
other member of the Committee to make comments on the bill, 
particularly our two Senators from Hawaii. But first, let me 
call on the Vice Chairman, if you have comments.

               STATEMENT OF HON. JOHN BARRASSO, 
                   U.S. SENATOR FROM WYOMING

    Senator Barrasso. Thank you, Mr. Chairman. I do have 
comments. I will just insert them for the record so as not to 
delay the testimony of our friends.
    [The prepared statement of Senator Barrasso follows:]

  Prepared Statement of Hon. John Barrasso, U.S. Senator from Wyoming
    Thank you, Mr. Chairman.
    Versions of this bill have come before the Indian Affairs Committee 
in at least five previous Congresses, beginning in the 106th Congress.
    I appreciate that it is a matter of considerable importance for 
Senators Akaka and Inouye, and for many Native Hawaiian people.
    Based on the correspondence we have been getting, I think it's fair 
to say that there are strong feelings about this initiative--both for 
it and against it.
    There are those who support or oppose it on policy grounds, and 
those who support or oppose it on legal or constitutional grounds.
    Whether a particular group may be recognized as an Indian tribe by 
the Federal Government involves difficult questions--questions of 
ethnographic, cultural and historic facts.
    Determining those facts requires a detailed scholarly inquiry. I do 
not believe there are many circumstances that would justify foregoing a 
detailed inquiry and having Congress simply deem a group to be an 
Indian tribe--or, in this case, the functional equivalent of an Indian 
tribe.
    I cannot help but ask whether it would be preferable to have that 
decision go through a detailed inquiry in an executive agency. 
Nevertheless, our witnesses today seem to represent a broad spectrum of 
views on Senator Akaka's bill, and I look forward to hearing their 
remarks.

    The Chairman. Senator Akaka, would you wish to make 
comments?
    Following the comments, we will then introduce the 
witnesses.

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

    Senator Akaka. Thank you very much, Chairman Dorgan and 
Vice Chairman Barrasso. Thank you for holding today's hearing.
    I want to add my aloha and welcome to our witnesses and 
those who are present here.
    As members of the Senate Committee on Indian Affairs, we 
have jurisdiction to examine and address the needs of our 
Country's indigenous people. This specifically includes Native 
Hawaiians, Alaska Natives, and American Indians.
    The United States has not always acted honorably in its 
treatment of our Nation's First People. However, I am proud 
that as a Country we have pursued actions acknowledging past 
wrongs and building a mutual path forward. It has been the work 
of this Committee and Congress to advance policies that uphold 
Native rights and their ability to exercise self-governance and 
self-determination.
    The legislation before us today provides parity. It enables 
Hawaii's indigenous people to establish a government-to-
government relationship with the United States. This political 
and legal relationship is the same type of relationship natives 
of Alaska and tribes in the lower 48 States have with the 
United States.
    Further, the process is consistent with the Constitution, 
Federal and State laws. Those that are not familiar with the 
history of Hawaii may wonder why such a process is needed. It 
is needed because in 1893, the Native Hawaiian government, led 
by Queen Lili'uokalani, was illegally overthrown. It was done 
with participation by agents of the U.S. and the U.S. military 
force. At the time, President Grover Cleveland characterized 
America's conduct as an ``act of war'' against the Native 
Hawaiian people and called for the Queen to be reinstated.
    The overthrow resulted in generations of Native Hawaiians 
being disenfranchised from their government, culture, land and 
their way of life. S. 1011 provides a structured process to 
reorganize a Native Hawaiian governing entity to exercise self-
governance and self-determination. Once federally recognized, 
the Native Hawaiian governing entity can enter into discussions 
with the State of Hawaii and the United States. Any agreements 
reached by the three parties will require implementing 
legislation at the State and Federal level.
    This bill does not allow for private lands or businesses to 
be taken, and does not permit Hawaii to secede from the Union. 
Further, it does not authorize gaming in Hawaii. Rather, this 
bill provides the structure necessary for meaningful 
interaction between Native Hawaiians and non-Native Hawaiians, 
especially as policies are formed and implemented. Such actions 
enable us to honor the needs of our State, preserve its 
cultural heritage, and address issue that have lingered without 
resolution since the overthrow of the kingdom of Hawaii.
    The United States recognized and maintained a trust 
responsibility for the welfare of Native Hawaiians. As was 
mentioned, to date, Congress has enacted more than 160 statutes 
to address the needs of Native Hawaiians. This includes a 
measure I sponsored, commonly known as the Apology Resolution, 
that was enacted into law in 1993. In the resolution, the 
United States apologized for its involvement in the overthrow, 
as well as committed itself to acknowledge the ramifications of 
the overthrow and support reconciliation efforts between the 
United States and the Native Hawaiian people.
    Reconciliation is a means for healing, enabling an ongoing 
dialogue that empowers us to address the political status and 
rights of Native Hawaiians. In order to implement the 
reconciliation process, in 1999, Attorney General Janet Reno 
and Secretary Bruce Babbitt designated officials to represent 
the Departments of Justice and the Interior in the 
reconciliation process between Native Hawaiians and the Federal 
Government. These officials traveled throughout the State of 
Hawaii, held public meetings with the Native Hawaiian community 
and produced a report entitled From Mauka to Makai: The River 
of Justice Must Flow Freely.
    This comprehensive report identified crucial steps the 
Federal Government should take to continue the process of 
reconciliation, including the recommendation to extend Federal 
recognition. Specifically, the report stated ``As a matter of 
justice and equity, the Departments believe the Native Hawaiian 
people should have self-determination over their own affairs, 
within the framework of Federal law, as do Native American 
Tribes.''
    The legislation we are considering today allows us to take 
the necessary next step in the reconciliation process. S. 1011 
is constitutional and provides a framework with respect of the 
needs of Native Hawaiians and non-Native Hawaiians. Their 
combined efforts will be needed as each will play an active 
role in reaching agreement and enacting implementing 
legislation at the State and Federal levels.
    Federal recognition of Native Hawaiians is supported by a 
majority of people in Hawaii, including the Governor, the State 
Attorney General, the State legislature and numerous Native and 
non-Native organizations. In Washington, D.C., S. 1011 is a 
bipartisan bill with the support of national organizations, 
including the American Bar Association, National Congress of 
American Indians and Alaska Federation of Natives.
    Mr. Chairman, I look forward to building upon the 
established record as we proceed with the tenth hearing this 
Committee has held on the issue of Native Hawaiian governance.
    The Chairman. Senator Akaka, I thank you very much.
    Senator Inouye?

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

    Senator Inouye. Mr. Chairman, I thank you and Vice Chairman 
Barrasso for scheduling this very important hearing on the 
Akaka bill. We have waited many, many years for this.
    Mr. Chairman, I ask unanimous consent that my full 
statement be made part of the record.
    The Chairman. Without objection.
    [The prepared statement of Senator Inouye follows:]

    Prepared Statement of Daniel K. Inouye, U.S. Senator from Hawaii
    I would like to thank Chairman Dorgan and Vice Chairman Barrasso 
for scheduling this important hearing today on a bill that Senator 
Akaka and I have worked tirelessly on for the past 10 years.
    So much of what we are here to consider today arises from events 
that took place long ago. On January 16, 1895, the United States 
Minister John L. Stevens, who served as the Ambassador to the court of 
Queen Liliuokalani, directed a marine company on board the U.S.S. 
BOSTON to arrest and detain Queen Liliuokalani. She was placed under 
house arrest in her bedroom at Iolani Palace for nine months. This 
event was engineered and orchestrated by the Committee of Public 
Safety, which consisted of Hawaii's non-Native Hawaiian businessmen, 
and with the approval of Minister Stevens. President Grover Cleveland 
appointed James Blount to conduct a special investigation in Hawaii and 
write up his findings. His report was the first report that provided 
``evidence that officially identified the United States' complicity in 
the lawless overthrow of the lawful, peaceful government of Hawaii.'' 
In contrast to the Blount report a year later the Senator John T. 
Morgan, Chairman of the Committee on Foreign Relations also issued an 
investigative report that said the United States did no wrong. This was 
clearly written to exonerate the parties involved.
    On January 17, 1895, Queen Liliuokalani temporarily yielded her 
authority to the United States. A new government, the Republic of 
Hawaii, was established and requested annexation by the United States. 
But after examining the circumstances and events leading to the illegal 
overthrow, President Cleveland refused to annex the Republic. In 1898, 
President McKinley, unable to obtain the necessary Senate consent to 
ratify a treaty of annexation, signed a Joint Resolution annexing 
Hawaii as a United States' territory.
    As part of the annexation agreement, former crown lands were 
transferred to the United States. Discussions on the status of Native 
Hawaiians immediately began throughout Hawaii, for this was their land, 
their government, and their people, but they were now outcasts. In 
1921, Hawaii's delegate to Congress, Prince Jonah Kuhio Kalanianaole, 
led Congress in enacting the Hawaiian Homes Commission Act of 1920. In 
adopting this Act, Congress compared its relationship with Native 
Hawaiians to its relationship with Indian tribes and relied on this 
special relationship to return certain crown lands to the Territory for 
the benefit of Native Hawaiians.
    For those of us born and raised in Hawaii, as I was, we have always 
understood that the Native Hawaiian people have a status that is unique 
in our State. This status is enshrined in our State Constitution and is 
reflected in the laws of our State. It is found in well over 188 
federal statutes including the Hawaii Admissions Act. This unique 
status reflects our deep gratitude to the native people who first 
welcomed is to their shores and who gave us the opportunity to live in 
their traditional homelands.
    Mr. Chairman, in my 30 years of service on this committee, I have 
been fortunate to learn a bit about the history of our country and its 
relations with the indigenous, native people, who occupied and 
exercised sovereignty on this continent.
    As a nation we have changed course many times in the policies 
governing our dealings with Native people. We began with treaties with 
native people, and then we turned to war. We enacted laws recognizing 
Native governments, and then we passed laws terminating our 
relationships with those governments. We repudiated our termination 
policy and restored our relationships with Native governments. Finally 
for the last 39 years we adopted a policy of recognizing and supporting 
the rights of this nation's First Americans to self-determination and 
self-governance. We have been firm in our resolve to uphold that 
policy.
    Native Hawaiians have had a political and legal relationship with 
the United States for the past 183 years as shown through treaties (30) 
with the United States and other sovereign governments and entities, 
and scores of federal statutes (188). But like tribes whose federally 
recognized status was terminated, Hawaii's monarchy was also 
terminated. Even after the Native Hawaiian government was illegally 
overthrown, the Native Hawaiian people never gave up their expression 
of political status through the Royal Societies and later through the 
Hawaiian Civic clubs. Through these groups cultural, political, social 
and activities and relationships unique to the Native Hawaiian people 
were kept in tact.
    As one who has served the citizens of Hawaii for over 50 years, as 
a member of the Territorial Legislature, a member of Congress, and now 
a member of the United States Senate, I believe that there is broad 
based support in our State for what the Native people are seeking, full 
restoration of the government to government relationship they had with 
the United States.
    Lastly, the courts have concluded that termination can only be 
reversed by an act of Congress. Reconciliation is long overdue and I 
look forward to continuing to work with the Administration and my 
colleagues to ensure that the Native Hawaiian people are given their 
right to self-determination and self-governance back.

    The Chairman. Senator Murkowski?

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

    Senator Murkowski. I would ask unanimous consent that my 
full statement be included in the record, but I also want to 
take just a moment and let my Hawaiian colleagues know that, 
for yet another round, the Alaskans will stand by you as we try 
to advance this important legislation for recognition of Native 
Hawaiians. It is something that we have been working on for 
many years. I think some of the questions that come up about, 
well, how will this work in Hawaii, can be resolved when you 
look to how we have handled the recognition of our Alaska 
Natives.
    Please know that I will be working with you as we advance 
this legislation.
    [The prepared statement of Senator Murkowski follows:]

  Prepared Statement of Hon. Lisa Murkowski, U.S. Senator from Alaska
    Thank you Chairman Dorgan. Senators Inouye and Akaka, I appreciate 
having the opportunity to support you today as the Senate Committee on 
Indian Affairs holds a hearing on the Native Hawaiian Government 
Reorganization Act. Alaska and Hawaii both joined the union in 1959. In 
2009, both Alaska and Hawaii are celebrating the 50th anniversary of 
Statehood. This marker in history forces us to reflect on history and 
the history of the indigenous people of our States. They are a people 
that share a special relationship to the land that today we recognize 
as the states of Alaska and Hawaii.
    As you know, Alaska Natives and Native Hawaiians share a special 
relationship. It was only 38 years ago that in 1971, this Congress 
enacted the Alaska Native Land Claims Settlement Act. While the 
legislation before us today is different in nature, it addresses a 
fundamental issue of how the United States establishes its relationship 
with its indigenous peoples. ANCSA settled the aboriginal land claims 
of the indigenous people of Alaska after some 100 years of legal 
uncertainty.
    History has not been more kind to the indigenous people of the 
State of Hawaii, whose Kingdom was overthrown, and lands annexed by the 
United States in 1893. In 1993, at the 100 year anniversary of a 
devastating history for Native Hawaiians, President Clinton signed into 
law an Apology Resolution recognizing the historical events of the 
annexation of the Kingdom of Hawaii. The resolution expressed a 
commitment to support reconciliation efforts between the Native 
Hawaiian people and the United States.
    This Committee has held hearings in last several Congresses and we 
have debated similar legislation on the Senate floor. Dissenters in 
this debate questioned the existence of a Native Hawaiian people. One 
certain truth is the existence of the Native Hawaiian people who have a 
rich cultural history that has continued since time immemorial.
    I mentioned a special relationship between Alaska Natives and the 
Native Hawaiians--that relationship is built in the support the two 
communities have provided to each other to strengthen their 
communities. They have found a strength in each other to face the 
social challenges impressed upon Native people. I would like to 
elaborate on this relationship. Fundamental to every culture is 
language. Many of our Alaska Native communities have been vigorous in 
preserving their indigenous languages. In Alaska we have many dialects 
within the Eskimo and Indian languages. Many Alaska Native leaders and 
Native educators have sought to find ways to revitalize their Native 
languages. In doing so, they have looked to the Native Hawaiians.
    Native Hawaiians have been successful in keeping alive the Native 
Hawaiian language, through immersion schools at the pre-school level to 
Masters level university programs enabling one to receive an entire 
formal education in Hawaiian. I reference the status of language for a 
very important reason--the root of every culture is language--when a 
language is strong and vibrant so is a culture--within a native 
language, the cultural protocols and customs are preserved and 
appropriately expressed.
    If you question the existence of Native Hawaiian people--you find a 
people with a strong culture, deep in tradition and custom, and a 
language that is alive among the Native Hawaiian community. The 
Constitution of the State of Hawaii has two official languages--English 
and Hawaiian. Such a recognition by the State of Hawaii is far beyond 
any other States in this union that have indigenous peoples within 
their borders.
    This Senator believes there should be no doubt on the question of 
the existence of Native Hawaiians. They are the indigenous people of 
the State of Hawaii. Congress has recognized Native Hawaiians in 
legislation over 100 times, providing similar health and housing 
programs as those provided to American Indians and Alaska Natives.
    This Nation is built on the notion of justice and equality as 
expressed in our founding documents. It is a notion that when the 
events of humanity and history recognize a grave injustice that there 
is hope this Congress will act to correct such injustices. The 
legislation before us today provides a process for Native Hawaiians to 
re-establish a governing body and equally recognize a government to 
government relationship that is shared with the other indigenous 
peoples in the United States--American Indians and Alaska Natives.
    Our experience in Alaska with the Alaska Native Land Claims 
Settlement Act and the Native institutions that have been created since 
its passage in 1971 have empowered the Native people of Alaska--
politically through the self-determination compacts and contracts 
entered into with the United States by our regional health and social 
service non-profit corporations and economically though our Native 
corporations. I would encourage those who have doubts in their mind 
regarding the legislation before us today--to look toward the history 
of the Alaska Native people. I look forward to hearing the testimony 
provided by our witnesses today.

    The Chairman. Any other comments?
    If not, we will call the Honorable Sam Hirsch, the Deputy 
Associate Attorney General of the U.S. from the Department of 
Justice forward.
    Mr. Hirsch, we will include your formal statement as a part 
of the permanent record. You will summarize for the Committee, 
I hope, and we are very pleased you are here. I understand you 
have some family here, your wife and children have accompanied 
you to this hearing, is that correct?
    Mr. Hirsch. Yes, Senator, it is.
    The Chairman. You are welcome to point them out and brag 
about them, if you like.
    [Laughter.]
    Mr. Hirsch. Thank you. Yes, that's my wife, Karin, and my 
daughters, Julia and Charlotte.
    The Chairman. We welcome you and you may proceed.

    STATEMENT OF HON. SAM HIRSCH, DEPUTY ASSOCIATE ATTORNEY 
              GENERAL, U.S. DEPARTMENT OF JUSTICE

    Mr. Hirsch. Thank you, Chairman Dorgan, Vice Chairman 
Barrasso and members of the Committee, for the opportunity to 
testify today regarding Senate Bill 1011, the Native Hawaiian 
Government Reorganization Act of 2009, as well as the companion 
bill, H.R. 2314, now pending in the House.
    I am particularly honored to appear today before Senator 
Inouye and Senator Akaka. Senator Inouye gave me one of my 
first opportunities for public service when I had the honor of 
working for a select committee that he and Senator Rudman co-
chaired back in 1987, and for that, Senator, I will always be 
very grateful.
    The Department of Justice strongly supports the core policy 
goals of this bill. And I am very pleased to testify on this 
historic legislation today. It is our understanding that the 
bill's sponsors and co-sponsors in the Senate and House are 
continuing to develop the legislation's precise parameters, so 
I will focus here on the broad principles embodied in these 
bills, rather than some of the details that may still be in 
flux.
    The Supreme Court has long held that Congress has broad 
plenary power to recognize Indian tribes. The Court has 
characterized Indian tribes as ``distinct political communities 
retaining their original natural rights in matters of local 
self-government.'' When it upheld Congress' treatment of the 
Pueblos of New Mexico as Indian tribes, the Court explained 
that ``the questions whether, to what extent, and for what time 
distinctly Indian communities shall be recognized and dealt 
with as tribes are to be determined by Congress, not by the 
courts.''
    But Congress' plenary power to recognize tribes does not 
mean that it ``may bring a community or body of people within 
the range of this power by arbitrarily calling them an Indian 
tribe.''
    As for Native Hawaiians specifically, the Supreme Court has 
never decided whether Congress has the authority to treat the 
Native Hawaiian community in the same manner as an Indian 
tribe. Indeed, in its 2000 decision in Rice v. Cayetano, the 
Court expressly avoided that question, calling it ``difficult 
terrain.'' And in the decade since the Supreme Court decided 
Rice, no court has squarely addressed that issue.
    In recognizing a Native Hawaiian sovereign entity, then, 
Congress would in effect determine that Native Hawaiians 
constitute a distinct Native community akin to an Indian tribe. 
And the general history of the Native Hawaiian people bears 
significant similarities to the history of Indian tribes. 
Despite numerous obstacles, Native Hawaiians have a sustained 
history of acting collectively and creating institutions to 
preserve traditional Native Hawaiian forms of social 
organization, religious practice, family and cultural identity, 
and other distinctive cultural practices.
    These institutions and organizations include, among many 
others, the Royal Societies, formed after the fall of the 
Hawaiian monarchy, the Hawaiian Civic Clubs, the Native 
Hawaiian Sovereignty Conference, and the Hawaiian Protective 
Association, a political organization established in 1914 with 
a constitution and bylaws that sought to unify Native Hawaiians 
and protect their common interests, to promote the education, 
health, and economic development of Native Hawaiians; and to 
address disputes within the Native Hawaiian community.
    And the United States Congress has repeatedly given legal 
recognition and legal status to those distinctive Native 
Hawaiian institutions. In 1921, Congress enacted the Hawaiian 
Homes Commission Act to establish a permanent land base for the 
benefit and use of Native Hawaiians, thereby reversing the 
decline in the Native Hawaiian population and revitalizing the 
Native Hawaiian community.
    In the legislative history of that 1921 Act, members of 
Congress repeatedly noted the similarities between Native 
Hawaiians and Indian tribes. Since that time, Congress has 
enacted more than 100 Federal statutes expressly recognizing 
Native Hawaiian tradition and culture and providing benefit 
programs for Native Hawaiians similar to those provided to 
other Native people. None of those statutes has been struck 
down as unconstitutional. And collectively, these Congressional 
enactments have provided Native Hawaiians with significant 
benefits in the areas of health care, education, and housing, 
among others.
    Again, I want to express my thanks for the opportunity to 
appear before the Committee to discuss these important issues. 
As I noted at the outset, the Department of Justice strongly 
supports the core policy goals of the Native Hawaiian 
Government Reorganization Act of 2009 and looks forward to 
working with you as the bill's specific language further 
evolves.
    We are very pleased to have the opportunity to work with 
this Committee and with the bill's sponsors and co-sponsors and 
their staff in developing this historic legislation.
    [The prepared statement of Mr. Hirsch follows:]

   Prepared Statement of Hon. Sam Hirsch, Deputy Associate Attorney 
                  General, U.S. Department of Justice
    Thank you, Chairman Dorgan, Vice Chairman Barrasso, and Members of 
the Committee, for the opportunity to testify before you today 
regarding S. 1011, the Native Hawaiian Government Reorganization Act of 
2009, as well as the companion bill, H.R. 2314, now pending in the 
House of Representatives. It is our understanding that the bill's 
sponsors and cosponsors are continuing to develop the legislation's 
precise parameters, so I will focus here on the broad principles 
embodied in these bills, rather than some of the details that may still 
be in flux.
    The Department of Justice strongly supports the core policy goals 
of this bill, and I am pleased to testify on this historic legislation. 
My remarks highlight some background considerations relevant to Native 
Hawaiian recognition legislation and discuss some important provisions 
in the bill.
I. Authority to Recognize Indian Tribes Generally
    The Supreme Court has long held that Congress has broad power to 
recognize Indian tribes. As the Court stated in United States v. Lara, 
541 U.S. 193, 200 (2004), ``the Constitution grants Congress broad 
general powers to legislate in respect to Indian tribes, powers that we 
have consistently described as `plenary and exclusive.' '' In Morton v. 
Mancari, 417 U.S. 535, 551-52 (1974), the Court observed that 
Congress's ``plenary power'' to recognize and legislate on behalf of 
Indian tribes ``is drawn both explicitly and implicitly from the 
Constitution itself'' and is based on ``a history of treaties and the 
assumption of a `guardian-ward' status.''
    More specifically, the Federal Government derives its power to deal 
with the Indian tribes primarily from the Indian Commerce Clause, U.S. 
Const. art. I, Sec. 8, cl. 3, which explicitly gives Congress the power 
to regulate commerce not only among the States and with foreign nations 
but also with ``the Indian Tribes,'' and the Treaty Clause, U.S. Const. 
art. II, Sec. 2, cl. 2. The Federal Government's authority to deal 
separately with the Indian tribes is thus grounded in two 
constitutional provisions that recognize the Indian tribes as sovereign 
political entities.
    The Supreme Court has numerous times defined tribes based on this 
concept of sovereignty. Most recently, in Santa Clara Pueblo v. 
Martinez, 436 U.S. 49, 55 (1978), the Court described Indian tribes as 
`` `distinct, independent political communities, retaining their 
original natural rights' in matters of local self-government.''
    Congress's power to recognize Indian tribes extends to tribes that 
have had aspects of their sovereignty diminished. For example, in 
United States v. John, 437 U.S. 634, 652-53 (1978), the Supreme Court 
upheld the Federal Government's ability to deal with the Mississippi 
Choctaws, even though federal supervision over them had not been 
continuous and there were times when the State's jurisdiction over them 
and their lands went unchallenged. Similarly, in Lara, 541 U.S. at 200-
07, the Court upheld Congress's authority, in the wake of Duro v. 
Reina, 495 U.S. 676 (1990), to relax limitations on tribes' exercise of 
inherent prosecutorial power over non-member Indians.
    The Indian Affairs power encompasses ``distinctly Indian 
communities.'' United States v. Sandoval, 231 U.S. 28, 46 (1913). The 
Supreme Court, in upholding Congress's treatment of the Pueblos of New 
Mexico as tribes, cautioned that Congress's plenary authority over 
tribes does not mean that it ``may bring a community or body of people 
within the range of this power by arbitrarily calling them an Indian 
tribe.'' Id. Nonetheless, within these limits, the Court has found that 
``the questions whether, to what extent, and for what time [distinctly 
Indian communities] 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.
II. Authority to Recognize Native Hawaiians--Rice v. Cayetano
    Any discussion of the power of the State of Hawaii and Congress 
regarding Native Hawaiians must begin with Rice v. Cayetano, 528 U.S. 
495 (2000). Rice involved a challenge to a provision in the Hawaii 
State Constitution limiting the right to vote for the trustees of the 
Office of Hawaiian Affairs (OHA) to ``Hawaiians.'' This term was 
defined by state statute as ``any descendant of the aboriginal peoples 
inhabiting the Hawaiian Islands which exercised sovereignty and 
subsisted in the Hawaiian Islands in 1778, and which peoples thereafter 
have continued to reside in Hawaii.'' The Court held that the voting 
provision violated the Fifteenth Amendment.
    Importantly, the Court did not reach the question whether Congress 
has the authority to treat Native Hawaiians in the same manner as 
members of an Indian tribe. Instead, the Court held that because the 
OHA elections were ``elections of the State, not of a separate quasi 
sovereign,'' they were ``elections to which the Fifteenth Amendment 
applies.'' Id. at 522 (emphasis added). The Court thus avoided what it 
called the ``difficult terrain'' of ``whether Congress may treat the 
native Hawaiians as it does the Indian tribes.'' Id. at 518-19. And 
since the Supreme Court decided Rice, nearly a decade ago, no court 
that we are aware of has squarely addressed that issue.
III. History of Native Hawaiian Sovereignty and Self-Government
    In recognizing a Native Hawaiian sovereign entity, Congress would 
in effect determine that Native Hawaiians constitute a distinct 
community as it has done with Indian tribes. The history of Native 
Hawaiian sovereignty and the extent to which Native Hawaiians continue 
to function as an organized community--engaging in collective action 
and preserving traditional community and culture--are relevant to this 
analysis.
    The general history of the Native Hawaiian people bears significant 
similarities to the history of Indian tribes. Prior to the arrival of 
western explorers, Native Hawaiians exercised self-rule. Traditionally, 
each island was controlled by a chief, known as an Ali'I `ai moku, and 
a hierarchy of lesser chiefs (Ahupua'a konohiki) and priests (Kahuna 
nui). In the early nineteenth century, King Kamehameha united the 
separate island chiefdoms under one government, creating the Hawaiian 
monarchy. The United States recognized the Kingdom of Hawaii as a 
sovereign power and dealt with it as such through much of the 
nineteenth century. In fact, the two nations executed several treaties 
and conventions. Then, in 1893, commercial interests, with the support 
of the United States military, overthrew the Hawaiian monarchy. In 
1993, Congress enacted a resolution formally apologizing for the role 
of the United States in that overthrow. See Pub. L. 103-150, 107 Stat. 
1510 (1993).
    Despite the overthrow of the monarchy, a community of Native 
Hawaiians continued to act collectively to preserve their culture and 
institutions in many ways, and the United States and the State of 
Hawaii gave a variety of forms of legal recognition and legal status to 
those distinctive institutions and culture.
A. Federal and State Protection of Native Hawaiian Autonomy and Culture
    In 1921, Congress enacted the Hawaiian Homes Commission Act (HHCA), 
Act of July 9, 1921, ch. 42, 42 Stat. 108. The law sought to 
``establish a permanent land base for the benefit and use of Native 
Hawaiians'' and to ``make alienation of such land [from the Native 
Hawaiians] . . . impossible,'' 1990 Haw. Sess. Laws, Act 349, thereby 
stopping the decline in the Native Hawaiian population and revitalizing 
the Native Hawaiian community. One supporter of the legislation said, 
in explaining the need for the Act, that ``[t]he idea in trying to get 
the land back to some of the Hawaiians is to rehabilitate them. . . . 
The only way to save them is to take them back to the lands.'' H. Rep. 
No. 66-839, at 3-4 (1920). Similarly, Hawaiian Delegate Kananianaole 
stated, ``I am a believer in giving the small man a piece of land and 
assisting him to become a prosperous member of the community. There is 
no patriotism so great as that which is rooted in the soil. I am a 
believer in and have been consistent in the policy of home rule.'' 59 
Cong. Rec. 7455 (May 21, 1920).
    The HHCA set aside 1.2 million acres of land--land originally 
controlled by the Hawaiian monarchy--for the betterment of Native 
Hawaiians. These lands are inalienable and are available to certain 
descendants of the persons inhabiting the Hawaiian Islands in 1778. 
Significantly, the legislative history of the HHCA indicates that 
Congress, in establishing this program, recognized the similarity 
between Native Hawaiians and Indian tribes. For example, Hawaii 
Territorial Senator John Wise asserted that the United States had a 
duty to assist Native Hawaiians, and he cited land grants to Indian 
tribes as precedent for the HHCA. See H.R. Rep. 66-839, at 4-7, 11. He 
also considered programs that had been developed to assist other 
indigenous groups. Id. Former Interior Secretary Franklin Lane stated 
that the United States had a responsibility to help Native Hawaiians 
and compared the plight of Native Hawaiians to that of other Native 
Americans. See id. at 4-5. Similarly, Oregon Senator George Chamberlain 
compared Native Hawaiians to Indian tribes. See Hearing on H.R. 13500 
Before the Committee on Territories, 66th Cong., 3d Sess. 23 (Dec. 14, 
1920). Finally, like Senator Wise, the witness Rev. Akaiko Akana 
compared the HHCA to federal efforts to assist Native Americans. Id. at 
53.
    State and federal authorities have recognized Native Hawaiian 
tradition and culture through other enactments. For example, the 
Federal Government set aside and protected the North West Hawaiian 
Islands in part due to their cultural and traditional significance. 
Proclamation No. 8031, 50 C.F.R. Sec. 404.1. Since the early 1970s, 
Congress has enacted many statutes providing benefit programs for 
Native Hawaiians similar to those provided to other native people, such 
as section 4006(a)(6) of the National Historic Preservation Act, 16 
U.S.C. Sec. 470a(d)(6), which provides particular protection to 
properties with religious and cultural importance to Indian tribes and 
Native Hawaiians; the Native Hawaiian Education Act, 20 U.S.C. 
Sec. Sec. 7901-7912, which establishes programs to facilitate the 
education of Native Hawaiians; and Title VIII of the Native American 
Housing Assistance and Self-Determination Act, 25 U.S.C. 
Sec. Sec. 4221-4239. In addition, various provisions of the Hawaii 
State Constitution, state statutes, and State Supreme Court opinions 
ensure access to timber, water, and other resources with traditional 
significance based on ancient custom and usage. Traditional Native 
Hawaiian fishing and gathering rights also are protected. Moreover, in 
1990, the State adopted measures to protect Native Hawaiian traditional 
burial sites. As stated above, such sites also are protected under the 
1990 Native American Graves Protection and Repatriation Act, which 
protects American Indian, Alaska Native, and Native Hawaiian 
gravesites. Finally, the State of Hawaii created the Office of Hawaiian 
Affairs, whose mission is to protect Native Hawaiian interests.
B. Native Hawaiian Self-Governance
    Native Hawaiians also have a sustained history of creating 
institutions to preserve traditional Native Hawaiian forms of social 
organization, religious practice, family and cultural identity, and 
other distinctive cultural practices. For example, the Hawaiian 
Protective Association was established in 1914 ``for the sole purpose 
of protecting the Hawaiian people and of conserving and promoting the 
best things of their tradition.'' Hearing on H.R. 13500 Before the 
Committee on Territories, 66th Cong., 3d Sess. 44 (Dec. 14, 1920) 
(statement of Rev. Akaiko Akana). The Association was a political 
organization with bylaws and a constitution that sought to maintain 
unity among Native Hawaiians, to protect Native Hawaiian interests, to 
promote the education, health, and economic development of Native 
Hawaiians, and to address disputes within the Native Hawaiian 
community. To this end, the Association established 12 standing 
committees and published a newspaper. The Association developed the 
framework that became the HHCA.
    In addition, in 1918, Prince Kuhio, Hawaii's delegate to Congress, 
founded the Hawaiian Civic Clubs, whose goal was ``to perpetuate the 
language, history, traditions, music, dances and other cultural 
traditions of Hawaii.'' McGregor, Aina Ho'opulapula: Hawaiian 
Homesteading, 24 Hawaiian J. Hist. 1, 5 (1990). These civic 
organizations worked to secure enactment of the HHCA, and they remain 
in existence today.
    In addition, Royal Societies, formed after the fall of the 
monarchy, also remain in existence today and continue to hold political 
and cultural value to the Native Hawaiian community. Various trusts 
also have established and funded Native Hawaiian language programs and 
immersion schools, including the Bishop Trust, which is a trust formed 
from property of the last descendant of King Kamehameha for the 
education of Native Hawaiians. Other groups, such as the 1988 Native 
Hawaiian Sovereignty Conference and the Kau Inoa organization, have 
formed to recognize traditional Native Hawaiian sovereignty and to work 
towards recognition of a sovereign Native Hawaiian entity.
IV. Past Congressional Action Toward Recognizing a Native Hawaiian 
        Sovereign
    As the Committee is well aware, the current legislation does not 
mark the first introduction of legislation designed to provide for 
Native Hawaiian recognition. Congress has given extensive consideration 
to this question. On two recent occasions--in the 106th and 110th 
Congresses--the House of Representatives passed recognition bills. In 
both those Congresses, this Committee also approved recognition bills. 
This Committee also reported recognition bills to the full Senate in 
the 107th and 108th Congresses, although those bills ultimately did not 
receive a vote in either Chamber. In addition, in the 109th Congress, 
this Committee approved recognition legislation that was debated in the 
full Senate. We are heartened that the bill's sponsors and cosponsors 
are continuing, nearly a decade after the legislation's original 
introduction, to address these issues and to press ahead with this 
important project.
V. Current Recognition Legislation
    The current legislation is the product of Congress's sustained 
examination of the status of Native Hawaiians and has a number of 
features that reflect Congress's close study of these questions. For 
example, the legislation contains provisions that specifically state 
that Congress does not intend to create any new legal claims against 
the United States. The Department supports these provisions and 
believes they should remain in the bill. In particular, the Department 
supports section 8(c) in S. 1011, which provides that nothing in the 
bill creates a cause of action against or waives the sovereign immunity 
of the United States.
    The Department also supports the bill's civil-rights protections. 
Section 7(c)(2)(B)(iii) (I)(cc) and section 7(c)(4)(A)(vi) require the 
Native Hawaiian governing entity, in its constitution or other organic 
governing document, to expressly protect the civil rights of Native 
Hawaiians and all other persons affected by the governing entity's 
exercise of its governmental powers and authorities. Express civil-
rights protections, as required by the Indian Civil Rights Act of 1968, 
have served Indian tribes, their members, and their neighbors well for 
many decades, while fully recognizing and respecting tribes' inherent 
sovereignty.
VI. Conclusion
    Thank you for the opportunity to appear before the Committee to 
discuss this issue. As I noted at the outset, the Department of Justice 
strongly supports the core policy goals of the Native Hawaiian 
Government Reorganization Act of 2009 and looks forward to working with 
you as the bill's specific language further evolves. We are very 
pleased to have the opportunity to work with this Committee in 
developing this important legislation.

    The Chairman. Mr. Hirsch, thank you very much for being 
with us.
    Let me state that Senator Coburn has a statement that he 
wishes to submit for the record at this point, which we will 
then submit. *
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    * The prepared statement referred to is printed in the Appendix.
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    The Chairman. And let me also say that I have a Commerce 
Committee hearing, and by prior arrangement, Senator Akaka will 
be taking the chair of this Committee in just a few moments.
    Are there questions of Mr. Hirsch? Senator Akaka?
    Senator Akaka. [Presiding.] Mr. Hirsch, the United States 
has federally recognized more than 560 Indian tribes. To date, 
no States have seceded from the Union, because their indigenous 
people have a government-to-government relationship with the 
United States. This has not occurred in the lower 48 nor 
Alaska.
    The legislation clearly spells out that agreements must be 
reached by the three governmental parties, and implementing 
legislation would need to be enacted. There are claims that 
Native Hawaiians would be able to secede.
    As you understand the bill, Mr. Hirsch, does the 
legislation permit secession?
    Mr. Hirsch. Senator Akaka, absolutely not. There is 
absolutely nothing in the legislation that I see that is 
remotely relevant to that alleged risk.
    Senator Akaka. Thank you.
    Mr. Hirsch, upon enactment of Pub. L. 103-150, commonly 
known as the Apology Resolution, the United States committed 
itself to a process of reconciliation with the Native Hawaiian 
people. In fact, in an effort to further the reconciliation 
process, Attorney General Janet Reno and the Secretary of the 
Interior, Bruce Babbitt, designated senior officials to travel 
to Hawaii and conduct a fact-finding mission.
    The result of their efforts, as I mentioned in my opening 
statement, was a year 2000 joint DOJ and DOI report, which was 
called From Mauka to Makai. Can you briefly share some of the 
relevant facts or recommendations from the Mauka to Makai 
report, and what did it say about extending Federal recognition 
to Native Hawaiians?
    Mr. Hirsch. Senator, I would be delighted to address that. 
And I think you are being modest. My understanding from reading 
the report is that Attorney General Reno and Secretary Babbitt 
developed the plan for this study after hearing from you about 
the plight of Native Hawaiians. I believe that was in March of 
1999, and it set off a 19-month period of study involving, 
based on the bibliography of the report, a huge amount of 
reading, but also field hearings where staff from Interior and 
Justice went to Hawaii and met with countless folks who could 
tell them about the actual situation on the ground there.
    Since that time, I have seen the report cited by the 
Federal District Court in Hawaii, by the Ninth Circuit Court of 
Appeals, the Federal Appellate Court for Hawaii and other 
States, and by the Supreme Court of Hawaii. So it is an 
important report. One of the first things I read when I was 
starting to prepare for this hearing, frankly.
    I can't vouch for every word in it. The Department has not 
taken a fresh look at that report in 2009, and it does begin 
with a page of legal disclaimers and other disclaimers. But 
that said, it basically had three sections. One was a report of 
history of Hawaii, similar to what was in your opening 
statement, but at greater length and quite nicely written, 
followed by a series of sub-chapters on current conditions in 
Hawaii.
    And one sentence that summarized that really caught my eye. 
It said, ``The Native Hawaiian people, as a Native community, 
continue to suffer from economic deprivation, low educational 
attainment, poor health status, substandard housing, and social 
dislocation.''
    And finally, looking at the history and the current status, 
there were five recommendations, one of which was to continue 
the process of reconciliation, three of which dealt with 
actions to be taken by Interior or Justice, and I should say 
that the recommendation directed to the Department of Justice 
has been fully complied with.
    And then one of the recommendations, the first one 
actually, was to begin the process towards reorganization and 
recognition of a single Native Hawaiian governing entity 
through Congressional legislation, worked out by negotiation 
with the Native Hawaiian people, exactly what you and your 
colleagues have been working on for years.
    Senator Akaka. Thank you very much for your response.
    Mr. Hirsch, some suggest that once the Native Hawaiian 
governing entity is recognized, it will acquire a significant 
amount of authority from the State and Federal governments to 
the detriment of non-Natives that are not under its authority. 
Are such claims grounded in law or reality? Has this happened 
in Indian Country or Alaska as their people have exercised 
self-governance and self-determination?
    Mr. Hirsch. Thank you for that question. My reading of the 
bill as it currently stands is that it has a provision 
expressly protecting against this potential problem. It says 
that jurisdiction currently exercised by the United States or 
by the State of Hawaii cannot be transferred to the Native 
Hawaiian governing entity unless all three sovereigns agree and 
come back for implementing legislation to this body and to the 
legislature of the State of Hawaii. So there is no risk of some 
sudden jurisdictional grab by the governing entity from the 
State or from the United States.
    Your point also about tribes generally is well taken. 
Obviously, if the kind of parade of horribles that some may 
have dreamed up were happening elsewhere, we would see States 
and localities and American citizens beating your doors down 
for changes in our longstanding policy of Indian and Native 
American self-determination. I don't believe we are seeing 
that.
    Senator Akaka. Thank you.
    Senator Inouye, your questions.
    Senator Inouye. Thank you, Mr. Chairman.
    I want to thank you, Mr. Hirsch, for your clear statement, 
your testimony and your responses to Senator Akaka's questions. 
They are extremely helpful. They should clarify and clear the 
picture.
    But as I was listening to you, I could not help but recall 
that at the time our Constitution was being drafted, and 
Indians were specifically mentioned in the provisions, that all 
indigenous people on the continent and elsewhere were called 
Indians. In fact, Native Hawaiians were referred to as Indians 
by Captain Cook and those who followed him. And the indigenous 
people in South America were all referred to as Indians, just 
like the ones in Canada. So one can say that we were referred 
to in the Constitution.
    But I just wanted to thank you very much, Mr. Hirsch. You 
have been very helpful.
    Thank you, Mr. Chairman.
    Senator Akaka. Thank you very much, Senator Inouye.
    I want to thank Mr. Hirsch for being here and for your 
statements and your responses. I want you to know that there is 
a schedule now on the Floor where the Senators will have to 
report and be in their seats at 3:00 p.m. So given the 3:00 
p.m. Senate vote, we will be recessing now and we will be 
returning after the vote is concluded.
    As a result, this Committee is in recess.
    [Recess.]
    Senator Akaka. Aloha. Will the second panel please come to 
the desk? The Senate Committee on Indian Affairs hearing on S. 
1011, the Native Hawaiian Government Reorganization Act of 
2009, will come to order.
    I remind our witnesses to limit their testimony to five 
minutes, pursuant to the rule of the Committee. And your 
complete written testimony will be part of the record.
    Testifying before us today is the Honorable Haunani 
Apoliona, Chairperson of the Board of Trustees, Office of 
Hawaiian Affairs. Welcome.
    Professor Stuart M. Benjamin, Associate Dean for Research, 
Duke Law School.
    The Honorable Micah Kane, Chairman, Hawaiian Homes 
Commission.
    Mr. Christopher Bartolomucci, Partner at Hogan and Hartson.
    And Ms. Robin Danner, President and CEO of the Council for 
Native Hawaiian Advancement. And she is accompanied by Steven 
J. Gunn, an Adjunct Professor at Washington University in St. 
Louis.
    Chairman Apoliona, will you please proceed with your 
testimony?

   STATEMENT OF HON. HAUNANI APOLIONA, CHAIRPERSON, BOARD OF 
              TRUSTEES, OFFICE OF HAWAIIAN AFFAIRS

    Ms. Apoliona. Thank you, Mr. Chair and Senator Inouye. 
Aloha kakou.
    Senator Akaka. Aloha.
    Ms. Apoliona. As stated, I am Haunani Apoliona, and I serve 
as Chairperson of the Board of Trustees of the Office of 
Hawaiian Affairs. We are most grateful for this Committee 
hearing on S. 1011, the Native Hawaiian Government 
Reorganization Act.
    The Office of Hawaiian Affairs was established in 1978 when 
the citizens of the State of Hawaii called for a constitutional 
convention and later participated in a statewide referendum to 
ratify amendments to the Hawaii State constitution. Among those 
amendments was the authorization to establish the Office of 
Hawaiian Affairs as the means by which Native Hawaiians could 
give expression to their rights under Federal law and policy to 
self-determination and self-governance. Since that time, the 
Office of Hawaiian Affairs has administered resources and 
provided governmental programs and services to Native 
Hawaiians, consistent with the provisions of the compact 
between the United States and the State of Hawaii that is 
commonly known as the Hawaii Statehood Act.
    As you know, this year, the State of Hawaii, marks the 50th 
anniversary of its admission in to the Union of States. 
However, for 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 now comprises 
the State of Hawaii. The recognition of our sovereignty is 
manifested in at least 30 treaties with foreign nations, 
including the United Kingdom, France, Belgium, Switzerland, 
Russia, Japan, Germany and Italy, to name a few.
    In 1826, the Hawaiian government entered into a treaty with 
the United States, and in 1849, our government again entered 
into a treaty of friendship, commerce and navigation with the 
United States. While our government was later removed from 
power by force in 1893, our relationship with the United States 
did not end. In the intervening years, the Congress enacted 
well over 188 Federal statutes that define the contours of our 
political and legal relationship with the United States process 
which culminated 100 years after the tragic events of 1893, 
with the enactment by the Congress of a resolution signed into 
law by the President of the United States, extending an apology 
to 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 
S. 1011. We do so in recognition of the fundamental principle 
that the Federal policy of self-determination and self-
government is intended to assure that all three groups of 
America's indigenous Native people, American Indians, Alaska 
Natives and Native Hawaiians have equal status under Federal 
law.
    In all likelihood, just as Native governments in the 
Continental United States and Alaska vary widely in 
governmental form and structure, our government will be 
organized to reflect our unique history as well as our culture, 
traditions and our values. We do not, for instance, seek to 
have our lands held in trust by the United States or the State 
of Hawaii, nor do we seek to have our assets managed by the 
Federal or State governments. We do not seek the establishment 
of new Federal programs, for the Federal statutes that I 
mentioned that have been enacted over the last 30 years already 
provide that authority, and we have been successfully 
administering programs under those authorities for decades.
    In enacting those statutes, the Congress chose a definition 
of the Native people of Hawaii that is consistent with the 
Interior Department's Federal acknowledgment criteria, namely, 
that for the purpose of our relationship with the United 
States, the time of first western contact with our people is 
the time from which our existence as a distinct Native 
community is recognized. That year, as you know, was 1778.
    And notwithstanding the overthrow of our government in 
1893, we have preserved and maintained our Native language, our 
traditions and our cultural practices, and we continue our 
social and political interactions as members of a distinct 
Native community within the State of Hawaii that the citizens 
of Hawaii not only recognize but respect. We are the host 
community in our islands, and despite the changing 
circumstances of history and the fact that we have never 
directly relinquished our sovereignty as a Native people, we 
are citizens of the United States and remain proud to be Native 
Hawaiian.
    Because our Native home land lies more than 5,000 mile from 
the Nation's capital, we know that there are many who do not 
know our ways of life and do not know us as a Native people. 
Nonetheless, our people have come forward with the necessary 
documentation to prove that they meet the standard definition 
of Native Hawaiian that has been employed in all of the Federal 
statutes that have been enacted over the last 35 years.
    Still, we know that the national government continues to 
seek a way to further document who we are. The Hawaiian Homes 
Commission Act of 1921 was the first of such Federal efforts, 
and pursuant to that Act and the Hawaii Admissions Act, Hawaii 
State Department of Hawaiian Home Lands maintains a list of all 
Native Hawaiians who have been certified as meeting the 
eligibility criteria to receive an assignment of land under 
that act.
    But there is also a second list of those who can document 
their Native Hawaiian ancestry and their direct lineal 
descendance from the aboriginal indigenous Native people who 
originally occupied our islands. And that is the Native 
Hawaiian registry authorized under Section 10.9 of the Hawaii 
Revised Statutes and maintained by the office of Hawaiian 
Affairs. We believe that together, these two lists can serve as 
a source of determination that S. 1011 authorizes the Federal 
Commission to make. Thus, we believe that the funds that would 
be necessary to establish and maintain the proposed commission 
can be better used to address the many challenges we as a 
Nation face on the economic front.
    Mr. Chairman, on behalf of the Native Hawaiian people, I 
would be remiss if I were to fail to express our serious 
concerns about those sections of the bill that seek to address 
any claims of the Native Hawaiian people. These sections 
represent the outcome of negotiations that were conducted with 
the prior Administration in which Native Hawaiians had no 
direct involvement or participation. Thus, 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 government or 
their representative bear direct responsibility.
    We do not believe that the Congress intended to treat 
Native Hawaiians differently from other American citizens or to 
deny Native Hawaiians the rights that are protected by the 
equal protection guarantees of the U.S. Constitution. Section 8 
of S. 1011 provides a process for negotiations amongst the 
governments of the United States, the State of Hawaii and the 
Native Hawaiian people, and the bill makes clear that included 
in the matters that will be subject to these negotiations are 
the resolution of any claims. The bill further provides that 
once resolution of the various matters listed in S. 1011 have 
been achieved, there will be recommendations for implementing 
legislation submitted to the committees of the U.S. Congress, 
to the Governor and legislature of the State of Hawaii.
    Accordingly, we firmly believe that S. 1011 already 
contains sufficient authorization for the three governments to 
address and resolve matters of sovereign immunity through the 
negotiations process authorized in Section 8 of the bill, and 
that S. 1011 is not intended to alter the status quo prior to 
the outcome of that negotiation process.
    OHA looks forward to working with members of the Hawaii 
Congressional delegation, the Committee, the Obama 
Administration, to assure that the definition of those Native 
Hawaiians who wish to participate in the reorganization of the 
Native Hawaiian government is inclusive, to assure that there 
is some government certification process in determining who is 
eligible to participate in the reorganization of a Native 
Hawaiian government, and to address our concerns with the 
claims section of the bill. We are attaching to this testimony 
a list of treaties that our Hawaiian government entered into 
with foreign nations and a list of Federal statutes that I 
mentioned that have been passed to address Native Hawaiians 
over the last 80 years.
    On behalf of the Office of Hawaiian Affairs, the agency of 
the State of Hawaii authorized by the constitution of the State 
of Hawaii to serve as the official governmental representative 
of the Native Hawaiian people, I thank you for the opportunity 
to share the views of OHA on S. 1011, for there is no Federal 
legislation initiative at this time more important to our 
people.
    Mahalo.
    [The prepared statement of Ms. Apoliona follows:]

  Prepared Statement of Hon. Haunani Apoliona, Chairperson, Board of 
                  Trustees, Office of Hawaiian Affairs




    Senator Akaka. Mahalo. Thank you, Chairwoman Apoliona.
    Now we will receive the statement of Professor Benjamin.

STATEMENT OF STUART M. BENJAMIN, DOUGLAS B. MAGGS PROFESSOR OF 
       LAW, ASSOCIATE DEAN FOR RESEARCH, DUKE LAW SCHOOL

    Mr. Benjamin. Senator Akaka, Senator Inouye, thanks for 
having me. I am honored to be here to testify.
    I am testifying only about the constitutional issues, and I 
want to say at the outset, I have no clients, paid or unpaid. I 
am speaking entirely for myself, not at anyone else's behest.
    My basic bottom line, as you saw from my statement, is I 
think the constitutional issues are genuinely difficult ones. 
Why do I think they are difficult?
    S. 1011 applies to a broader and more diffuse group than 
any other recognition of any Native American tribe. So in its 
breadth of coverage it is unprecedented, which is the point 
that Justice Breyer made in Rice v. Cayetano. So this really 
implicates what we think can be a tribe for constitutional 
purposes.
    And the question is, what is required to be a tribe for 
constitutional purposes? There is no clear definition, for 
better or for worse, of what is a tribe. However, it seems like 
there is a pretty good argument that it requires some 
connection among the tribal members. And right now, as written 
in S. 1011, the only connection that is required is ancestry. 
It doesn't actually require any bonds among Native Hawaiians 
beyond that.
    So it seems to me that that raises a serious question.
    A second question has to do with derivation from the 
previously sovereign entity. As you know, the entity that was 
overthrown in 1893 was a multi-ethnic polity with many non-
Native citizens. So if we hearken back to that and say that is 
what we are recreating, then the problem is, why not include 
all the descendants of the citizens?
    If instead you want to say, no, let's have it limited to an 
entity that just included Native Hawaiians, well, when 
Kamehameha united the islands in 1810, even then there were 
westerners who lived there as permanent residents. If you go 
back to 1778, that might suggest having more than one tribe, 
the way that the islands were actually separately governed in 
1778.
    Now, having said all of this, the Supreme Court has 
articulated broad deference to decisions that Congress makes 
about recognizing tribes. But also there are limits to that 
deference. So the hypothetical that I put forward in my 
statement is, imagine that you pass legislation just like S. 
1011, but instead of applying to Native Hawaiians, it applied 
to all Native Americans who were not currently members of 
tribes in the lower 48. So it applied to Native Americans who 
are racially Native Americans, whether they lived in Butte, or 
they lived in New York City, or they lived in New Orleans, or 
anywhere else.
    My guess is the Supreme Court would strike that down, would 
say that's too broad, that these people don't have enough of a 
connection among themselves. You can't just declare all Native 
Americans not currently in a tribe to be in a tribe.
    So the question is, are Native Hawaiians different? If they 
are different, I think it would be because there are some 
connections among them. But again, as written, the legislation 
doesn't highlight any connections, and, as written, it applies 
to, according to Census data, 140,000 people--40 percent of 
Native Hawaiians live outside of Hawaii in all 50 States.
    But if I am wrong, and if in fact the Supreme Court would 
defer entirely to Congress and say it is really a decision for 
Congress to make, then it is all the more incumbent upon the 
members of Congress to reach their own determinations about the 
constitutional issue. I want to highlight this, because I saw 
in previous hearings some suggestion that said the Supreme 
Court would allow this, and therefore it is constitutional.
    With respect, that is just not so. When I was in the Office 
of Legal Counsel in the Department of Justice in the early 
years of the Clinton Administration, we had many issues that 
came before us that we knew were never going to see a court, 
that never were going to see the light of day, that nobody was 
going to be able to oversee what we did. We could have said, 
``Great, we can do anything we want to, no legal constraints.'' 
Of course we didn't do that. Instead, we said it's all the more 
important that we look carefully at these issues, because we 
are the only stopgap.
    Or, as I pointed out in my statement, no court is going to 
stop you from impeaching or convicting a president or a judge 
for any reason you want, but you still have your own 
constitutional oaths, so that if you think a court isn't going 
to oversee it, it's all the more important for you to make your 
own determinations.
    The final point is, for better or for worse, the 
constitutional ground has shifted over the last 15 years. After 
the Adarand decision, we have now got this somewhat uneasy 
relationship between Adarand and a whole bunch of other 
statutes that deal with Native Americans. It may be that the 
Supreme Court would look at S. 1011 and say, ``This is 
constitutional, no problem.'' It may be they would strike it 
down. But it may be that they would not only strike it down but 
would say, ``Gee, maybe we are actually going to reconsider 
some of these other statutes that seem similar to this.'' This 
could bring about changes in Native American law beyond S. 1011 
in ways that, I suspect, members of this Committee would not be 
happy about.
    So what do I suggest when all is said and done as ways that 
might put on a stronger constitutional footing? Well, the most 
obvious thing would be not to include within its ambit Native 
Hawaiians who don't live in Hawaii, so to limit it to Native 
Hawaiians who actually live in Hawaii.
    A second thing would be to have it involve Native Hawaiians 
in Hawaii who have some connection among each other. In my 
view, that would put the legislation on stronger constitutional 
footing. Of course, I can't guarantee that that would either 
save it, or that it is necessary as a constitutional matter. 
All I can tell you is I think they are difficult constitutional 
questions. Obviously, the decision on what to do is yours. But 
that is my own evaluation, and again, on my own behalf, and not 
anyone else's.
    [The prepared statement of Mr. Benjamin follows:]

Prepared Statement of Stuart M. Benjamin, Douglas B. Maggs Professor of 
           Law, Associate Dean for Research, Duke Law School




    Senator Akaka. Thank you very much, Professor Benjamin, for 
your testimony.
    Now, we will hear from the Honorable Chairman Micah Kane.

   STATEMENT OF HON. MICAH A. KANE, CHAIRMAN, HAWAIIAN HOMES 
                           COMMISSION

    Mr. Kane. Senator Akaka, aloha, Senator Inouye, aloha. 
Thank you for giving me this opportunity to testify in strong 
support of this measure.
    For the record, my name is Micah Kane. I am the Chairman of 
the Hawaiian Homes Commission and also serve as the Director of 
the Department of Hawaiian Home Lands.
    As you know, in 1921, the United States Congress set aside 
200,000 acres of land for the purpose of rehabilitating Native 
Hawaiians. In 1959, when we became a State, the responsibility 
of administering this trust was passed to the State of Hawaii 
and hence has developed into the Department of Hawaiian Home 
Lands.
    So today, while I chair the Hawaiian Homes Commission, 
advising on policy, I also serve as a member of the Governor's 
cabinet, as one of 17 departments in the State of Hawaii. We 
are managed by a nine-member commission appointed by the 
Governor and confirmed by the Hawaii State Senate, with 
membership represented throughout the State of Hawaii in 
staggered terms.
    Today, the Department of Hawaiian Home Lands represents 
more than 36,000 Native Hawaiians across 29 homestead 
communities throughout our State. Today, the Department of 
Hawaiian Home Lands is the largest residential developer in the 
state of Hawaii, with over 1,500 units under construction 
throughout our State.
    I think there are obvious reasons why Native Hawaiians 
support this measure. But what I think is most interesting and 
what is most compelling is the broad support that you alluded 
to, Senator Akaka, and Senator Inouye, about the non-Hawaiian 
support that is there. I think it is appropo to the comments 
that were made prior with regard to certain limitations that 
are being asked for in defining what a Native Hawaiian is. I 
think there is an assumption in those comments that by 
broadening that definition that it would limit difficulties. I 
think the remainder of my comments would be appropo in that we 
don't feel that that is the case.
    I think one of the main reasons why there is such broad 
support is that the positive impact that the Department of 
Hawaiian Home Lands has had on the lives of those that are not 
clearly, not defined under the Hawaiian Homes Commission Act. 
While DHHL's mission is to serve a specific beneficiary group, 
we do not build segregated communities. As a result of that, 
many have benefited from our work. When we build a park or a 
community, we build it as a gathering place for all, not just 
for Hawaiians. When we dedicate land for a public school or a 
private school or a charter school, it isn't just for Native 
Hawaiians. Others participate in those schools.
    When resources are dedicated for major infrastructure 
improvements, as you know, DHHL is a major builder in water, 
sewer and road re-improvements, we build it to county code 
through agreements and memoranda of agreements with the county 
or the State. And we take into consideration the capacity of 
our non-Native neighbors. So there is a collaboration that 
occurs. And when people enter or exit our communities, they 
don't recognize where it starts or ends. That is important to 
us.
    DHHL is also a close example of what Senate Bill 1011 will 
result in. We already have democratically-elected communities. 
We operate much like a county. In fact, our CIP budget is 
comparable to those of the five counties in our State. And, 
DHHL has become a critical component of Hawaii's social fabric 
and a critical partner in overcoming some of Hawaii's major 
problems.
    Today, our department is at the forefront in our State's 
initiative to reduce our dependency on fossil fuel. I am very 
proud to announce, and I really hope that our Senators can join 
us in December when we launch our first zero energy subdivision 
and sustainable community. I think we are going to be leading 
our Country in this area, thanks to the support that you have 
given us through the stimulus money, through energy money. We 
are very excited to share what we have learned from this 
process, so others throughout the Country can follow.
    We are also at the forefront of our State's efforts to 
bring educational opportunities in rural communities, which are 
sometimes overlooked. We are at the forefront of helping our 
State overcome major infrastructure challenges throughout the 
state.
    Contrary to what few might say, this bill does not draw a 
line in the sand. The irony is that it is really a bridge that 
we are building and that we are allowing all of us to reconnect 
to what we feel is important to our State. This bill is 
balanced. It recognizes the authority and jurisdiction that is 
needed by a governing entity, yet it acknowledges the role it 
must play within our State and within our Federal Government.
    I thank you for the opportunity to testify on behalf of our 
beneficiaries and, as I stated earlier, we truly appreciate the 
genuine support you have given our people in our State as 
Senators representing us. Mahalo.
    [The prepared statement of Mr. Kane follows:]

  Prepared Statement of Hon. Micah A. Kane, Chairman, Hawaiian Homes 
                               Commission
    Aloha kakou, Chairman Dorgan, Vice Chairman Barrasso, Senator 
Inouye, Senator Akaka and members of this Committee:
    I am Micah Kane, Chairman of the Hawaiian Homes Commission, and I 
thank you for this opportunity to express 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 S. 1011 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 S. 1011. Because of our unique legal history, the 
        Hawaiian Homes Commission exercises certain authority over 
        Hawaiian home lands, subject to state and federal laws, similar 
        to that being proposed under S. 1011.
        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.

    Senator Akaka. Thank you very much for your testimony, 
Chairman Micah Kane.
    Now we will receive the testimony of Mr. Christopher 
Bartolomucci.

  STATEMENT OF H. CHRISTOPHER BARTOLOMUCCI, PARTNER, HOGAN & 
                          HARTSON LLP

    Mr. Bartolomucci. Thank you, Mr. Chairman. It is indeed an 
honor to testify today on S. 1011, the Native Hawaiian 
Government Reorganization Act of 2009. In my testimony today, I 
will focus upon the legal issue of Congress' constitutional 
authority to enact this legislation.
    The principal legal question presented by S. 1011 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, namely, that Congress' broad power to deal with Indian 
tribes allows Congress to recognize Native Hawaiians as having 
the same sovereign status as other Native Americans.
    S. 1011 would initiate a process by which Native Hawaiians 
would reconstitute their governing entity. Congress has ample 
authority to assist Native Hawaiians in that effort. 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 that broad power in the past to restore lost 
tribal sovereignty. In 1954, Congress terminated the 
sovereignty of the Menominee Indian Tribe in Wisconsin. It 
ended the government-to-government relationship with the Tribe 
and closed its membership roll.
    Nearly two decades later, in 1973, Congress reversed course 
and enacted the Menominee Restoration Act, which restored 
sovereignty to the Menominee, reinstated the Tribe's Federal 
rights and Federal recognition and reopened its membership 
roll. 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.
    S. 1011 is patterned after the Menominee Restoration Act 
and would do for Native Hawaiians what Congress did for the 
Menominee.
    S. 1011 does not run afoul of 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 decide whether 
Congress may treat Native Hawaiians as it does other Native 
Americans. Indeed, the Rice court 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 neither discrimination nor unconstitutional. As the 
Supreme Court said in the case of United States v. Antelope, 
``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 on impermissible racial 
classifications.'' The court continued, ``Federal regulation of 
Indian tribes * * * is governance of once-sovereign political 
communities.''
    When Congress enacts laws regarding sovereign, indigenous 
peoples, it does so on a government-to-government basis. Such 
laws are not race-based.
    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. 
Congress' power to enact special legislation for Native 
Hawaiians is also supported by Congress' unquestioned power to 
enact such legislation for Native Alaskans who, like Native 
Hawaiians, differ from American Indian tribes 
anthropologically, historically and culturally. Because 
Congress has power to enact special legislation dealing with 
Native Alaskans, it follows that Congress has the same 
authority with respect to Native Hawaiians.
    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 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. S. 1011 passes that 
legal test.
    Professor Benjamin objects to the breadth of the definition 
of the term ``Native Hawaiian'' in the bill. In response, I 
would point out that that definition is to be used for only one 
narrow purpose, that is, to create the initial roll of persons 
eligible to elect an interim governing council. Ultimately, it 
will be up to the Native Hawaiian governing entity to determine 
the requirements of membership. That is fully in keeping with 
the fundamental legal principle that a tribe has the authority 
to determine its own membership.
    In my view, a broad initial definition is preferable to one 
that would be unduly narrow, to allow greater participation in 
the initial process of reorganizing the governing entity.
    That concludes my testimony. Thank you again for the 
invitation. I will be happy to answer the Committee's 
questions.
    [The prepared statement of Mr. Bartolomucci follows:]

  Prepared Statement of H. Christopher Bartolomucci, Partner, Hogan & 
                              Hartson LLP
    Chairman Dorgan, Vice Chairman Barrasso, and distinguished Members 
of the Committee:
    Thank you for the invitation to testify on S. 1011, ``the Native 
Hawaiian Government Reorganization Act of 2009.'' It is indeed an honor 
to testify before this distinguished body. My testimony will focus upon 
the legal issue of Congress' constitutional authority to enact this 
legislation.
    The principal legal question presented by S. 1011 is whether 
Congress has the power to treat Native Hawaiians the same way it treats 
this country's other indigenous groups, 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 other Native Americans.
    S. 1011 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. See Apology Resolution, Pub. L. No. 
103-150, 107 Stat. 1510 (1993); see also Hawaii v. Office of Hawaiian 
Affairs, 129 S. Ct. 1436, 1439 (2009) (noting that Congress ``pass[ed] 
a joint resolution to apologize for the role that the United States 
played in overthrowing the Hawaiian monarchy in the late 19th 
century'').
    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.'' 
U.S. Const., art. I, Sec. 8, cl. 3. Based upon the Indian Commerce 
Clause and other constitutional provisions, see, e.g., Treaty Clause, 
art. II, Sec. 2, cl. 2, the Supreme Court has recognized Congress' 
plenary power to legislate regarding Indian affairs. As the Supreme 
Court stated in the case of United States v. Lara, 541 U.S. 193 (2004), 
``the Constitution grants Congress broad general powers to legislate in 
respect to Indian tribes, powers that we have consistently described as 
`plenary and exclusive.' '' Id. at 200.
    Congress has previously used that power to restore lost tribal 
sovereignty. In 1954, Congress terminated the sovereignty of the 
Menominee Indian tribe in Wisconsin, ended the government-to-government 
relationship with the tribe, and closed its membership roll. See 
Menominee Indian Termination Act, 25 U.S.C. Sec. Sec. 891-902. Nearly 
two decades later, in 1973, Congress reversed course and enacted the 
Menominee Restoration Act, 25 U.S.C. Sec. Sec. 903-903f, which restored 
sovereignty to the Menominee, reinstated the tribe's federal rights and 
federal recognition, and reopened its membership roll. 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.'' Lara, 541 U.S. at 203.
    S. 1011 is patterned after the Menominee Restoration Act and would 
do for Native Hawaiians what Congress did for the Menominee. Courts 
have approved of the sovereignty restoration process enacted in the 
Menominee Restoration Act. See Lara, 541 U.S. at 203 (citing the 
Menominee Restoration Act as an example where Congress ``has restored 
previously extinguished tribal status-by re-recognizing a Tribe whose 
tribal existence it previously had terminated''); 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'') (opinion of Wood, J., joined by 
Posner & Easterbrook, JJ.), cert. denied, 540 U.S. 822 (2003).
    S. 1011 does not run afoul the Supreme Court's decision in Rice v. 
Cayetano, 528 U.S. 495 (2000). 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.'' 
Id. at 518.
    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 hence is neither discrimination nor unconstitutional. As 
the Supreme Court explained in a 1977 case:

        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 * * *.''

    United States v. Antelope, 430 U.S. 641, 645-646 (1977) (quoting 
Morton v. Mancari, 417 U.S. 535, 553 n.24 (1974) (footnote omitted)).
    In Mancari, the Supreme Court rejected the argument that an Act of 
Congress establishing an employment preference for qualified Indians in 
the Bureau of Indian Affairs violated due process and federal anti-
discrimination law. The Supreme Court observed 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. 
And the Court explained that the following rule applies 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. Here, S. 1011 is ``rationally tied'' to Congress' 
discharge of its duty with respect to the native people of Hawaii.
    Accordingly, when Congress enacts laws regarding sovereign, 
indigenous peoples, it does so on a government-to-government basis; 
such laws are not race-based. 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. See, e.g., Hawaiian Homes Commission Act, 42 Stat. 108 
(1921); Native Hawaiian Education Act, 20 U.S.C. Sec. 7511-7517; Native 
Hawaiian Health Care Act, 42 U.S.C. Sec. Sec. 11701-11712.
    Congress' power to enact special legislation for Native Hawaiians 
is also supported by Congress' unquestioned power to enact such 
legislation for Native Alaskans, who--like Native Hawaiians--differ 
from American Indian tribes anthropologically, historically, and 
culturally. See, e.g., Alaska Native Claims Settlement Act, 43 U.S.C. 
Sec. Sec. 1601-1629h. Because Congress has power to enact special 
legislation dealing with Native Alaskans--a power that the Supreme 
Court has never questioned--it follows that Congress has the same 
authority with respect to Native Hawaiians.
    Ultimately, a decision by Congress to treat Native Hawaiians like 
other native groups is a political decision that the federal courts are 
not likely to second guess. In the 1913 case of United States v. 
Sandoval, 231 U.S. 28 (1913), 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. See Sandoval, 231 
U.S. at 45-49; see also United States v. Holliday, 3 Wall. 407, 419 
(1886); Long, 324 F.3d at 482. S. 1011 passes that legal test.
    For the remainder of my prepared statement, I attach a legal 
opinion, titled ``The Authority of Congress to establish a Process for 
Recognizing a Reconstituted Native Hawaiian Governing Entity,'' that I 
co-authored in 2007 with Professors Viet D. Dinh and Neal K. Katyal of 
Georgetown University. Although that opinion addressed S. 310, the 
version of the legislation pending in 2007, the present legislation, S. 
1011, does not differ in substance from S. 310. Therefore, the opinion 
that offered with respect to S. 310 also holds for S. 1011. *
---------------------------------------------------------------------------
    * The February 26, 2007 paper, entitled, The Authority of Congress 
to Establish a Process for Recognizing a Reconstituted Native Hawaiian 
Governing Entity, by: H. Christopher Bartolomucci, Viet D. Dinh, and 
Neal K. Katyal has been retained in Committee files and can be found at 
http://www.nativehawaiians.com/archives/pdf/NHGRA070226.pdf

    Senator Akaka. Thank you very much, Mr. Bartolomucci.
    Now we will receive the testimony of President Robin 
Danner.

 STATEMENT OF ROBIN PUANANI DANNER, PRESIDENT/CEO, COUNCIL FOR 
                 NATIVE HAWAIIAN ADVANCEMENT; 
        ACCOMPANIED BY STEVEN JOSEPH GUNN, ATTORNEY AND 
  ADJUNCT PROFESSOR OF LAW, WASHINGTON UNIVERSITY IN ST. LOUIS

    Ms. Danner. Aloha, Senator Akaka, Senator Inouye. Thank you 
for this opportunity to testify on behalf of the Council for 
Native Hawaiian Advancement.
    For the record, my name is Robin Puanani Danner. I am here 
today in my capacity as the President of the Council. Also with 
me today is Professor Steven Gunn, from the Washington 
University, an expert in Native American law.
    CNHA was founded to unify Native Hawaiian community groups 
and organizations to enhance the cultural, economic and policy 
voice of Native Hawaiians. Similar in purpose to the Alaska 
Federation of Natives and the National Congress of American 
Indians, we work in public policy education and we connect 
resources to community goals on the ground.
    Our member organizations consist of cultural groups, 
charter schools, civic and homestead associations, housing and 
economic development type organizations, resource management 
practitioners, to name a few. I would like to express our 
strong support for Senate Bill 1011. In my written testimony, 
filed for the record, we make a few recommendations that we 
would be happy to work with our delegation and the Committee 
on.
    As President of CNHA, I have worked for many years with 
extraordinary Native leaders and others to improve the 
opportunities and resolve challenges facing our people. This 
legislation, first introduced in 2000, is perhaps the single 
most important piece of public policy to advance solutions from 
within our communities and in partnership with the Federal 
Government, our trust agencies, and the State of Hawaii.
    Senate Bill 1011 recognizes the economic, cultural and 
political rights and interests of Native Hawaiians. It is 
intended to facilitate our efforts to reorganize a Native 
government accountable to our community, representing the full 
measure of the Federal policy of self-determination and self-
governance. It would particularly be appropriate if Congress 
would enact this legislation this year, in 2009, the 50th 
anniversary of Hawaii's statehood.
    This Committee, the Senate Committee on Indian Affairs, 
perhaps more so than any other of the distinguished United 
States Senate Committees, is well versed in the history and 
public policy eras of our Country and America's native peoples. 
It is a worthy journey to continually seek a fair and just 
pathway to honor the values of our democracy while recognizing 
the contributions of and the impact to Native peoples in the 
building of a great nation.
    My people are the third major category amongst the three 
most commonly referred to as indigenous or native to the 
homelands that now consist of the 50 States: American Indians, 
Alaska Natives and Native Hawaiians. Senators, I was born in my 
family's fishing village on the south shores of the island of 
Kauai. My upbringing was the responsibility of my parents as 
well as multi-generational family members.
    I lived on the Navajo Indian Reservation in Arizona, I 
lived among the Inupiut Eskimo in the high Arctic in Alaska, 
and I live on my homestead in Hawaii where my four children 
have been raised. My parents were teachers working in the BIA 
and public school systems, both at home in Hawaii and among the 
tribes. I will say from a lifetime of witnessing first-hand the 
traditional and cultural practices, the communal family ties of 
the Navajo, the Eskimo, and yes, my own Native Hawaiian people, 
we are connected. We are unique, each of us, yet we share the 
commonality that we are each native to our respective 
homelands.
    Just as the Great Plains are the homelands of the Lakota, 
so too are the Hawaiian Islands the homelands of Native 
Hawaiians. Our geographical locations may differ within the 50 
States. But what is transpiring inside Native communities, 
whether an Indian reservation or our home in Hawaii, are 
communities engaged, connected to one another in collective 
action, living life ways, cultures and protocols of knowledge 
unique to each homeland.
    As Hawaiian leaders, all of us have conducted and 
participated in hundreds of consultation sessions and meetings 
on the topic of this legislation over the last 10 years. It has 
been inspiring to discuss and connect the potential of Senate 
Bill 1011 to the work on the ground and what it can mean to 
what is real in our day to day lives. There is clear consensus 
and support in our community for a recognition process, and to 
fully embrace and apply the policy of self-determination, 
Senate Bill 1011 is exactly the right and next step in our 
journey with you, the Congress, with the Administration and 
with our State agencies and local and State government back 
home.
    In closing, I would like to thank you for the opportunity 
to be with you today. As Native Hawaiians, we want to be 
responsible and accountable for our resources and for our 
communities. We want to be a full and active partner with the 
State and Federal governments in growing solutions in our 
communities. And Senate Bill 1011 represents a pathway to once 
again have our own voice to govern our own affairs, and to take 
our rightful place in truly applying the talent and knowledge 
and opportunities in our homeland that will enrich the lives of 
all in Hawaii.
    I thank you for the opportunity, and as I stated before, we 
remain available to work with the Committee on the 
recommendations in my testimony filed for the record.
    [The prepared statement of Ms. Danner follows:]

Prepared Statement of Robin Puanani Danner, President/CEO, Council for 
                      Native Hawaiian Advancement
    Aloha Chairman Dorgan, Vice Chairman Barrasso, Senator Inouye, 
Senator Akaka and other Members of the Committee. Thank you for your 
invitation to provide testimony on behalf of the Council for Native 
Hawaiian Advancement regarding the Native Hawaiian Government 
Reorganization Act of 2009, S.1011.
    My name is Robin Puanani Danner. I am native Hawaiian and a 
resident of Hawaiian Home Lands, the trust lands created under the 
enactment of the Hawaiian Homes Commission Act of 1920.
    I submit this testimony in my capacity as President of the Council, 
founded to unify Native Hawaiian groups and organizations to promote 
the cultural, economic and community development of Native Hawaiians. 
Similar in purpose to the Alaska Federation of Natives and the National 
Congress of American Indians, CNHA achieves its mission through a 
strong policy voice, capacity building and connecting resources to the 
challenges in our communities. Today, CNHA has a membership of 102 
Native Hawaiian organizations. We are governed by a 15-member board of 
directors elected by our member organizations.
    I would like to express CNHA's strong support for S. 1011 with 
revisions. As President of CNHA, I have worked for many years with 
extraordinary Native leaders and others to improve the opportunities 
and resolve challenges faced by Native Hawaiians. This legislation, 
first introduced in 2000 is perhaps the single most important piece of 
public policy to advance solutions from within our communities and in 
partnership with the Federal Government and State of Hawaii.
    The Native Hawaiian Government Reorganization Act is important 
legislation that recognizes the economic, cultural, and political 
rights and interests of Native Hawaiians. The Act is intended to 
facilitate the Native Hawaiian people's efforts to reorganize our 
native government to promote our best interests. This legislation has 
been before Congress for almost 10 years, and it is particularly 
appropriate that Congress enact this legislation in 2009, the 50th 
anniversary of Hawaii's statehood.
    Since Hawaii's overthrow as an independent nation and subsequent 
annexation to the United States, our Native Hawaiian people have sought 
justice. While Queen Liliuokalani, our last reigning monarch prior to 
the overthrow, was alive, she maintained our claims and passed the 
torch to Prince Jonah Kuhio Kalanianaole. One of his most significant 
achievements was the enactment of the Hawaiian Homes Commission Act of 
1920 (HHCA). Modeled after the 1906 Native Allotment Act for Alaska 
Natives and American Indians enacted by Congress, the HHCA established 
trust lands for residential, agricultural and pastoral homesteading by 
Native Hawaiians.
    Yet the HHCA was only a partial solution. A Native Hawaiian 
government, recognized by the Federal Government and accountable to 
Native Hawaiians, represents the full measure of the federal policy of 
self-determination and self-governance, which is achieved in S. 1011. 
The state agencies, Department of Hawaiian Home Lands and Office of 
Hawaiian Affairs, are vital partners yet cannot fulfill this role. As 
the Supreme Court pointed out in Rice v. Cayetano, these agencies are 
state government agencies founded in state law. Passage of S. 1011 
authorizes a process by which the Native Hawaiian people are able to 
reorganize a Native Hawaiian government to speak on our behalf as 
native people and to work in a government-to-government relationship 
with the state of Hawaii and our Federal Government.
Background
    I would like to include in the record, background information 
relevant to S. 1011 and the historical context which makes clear that 
passage of S. 1011 is exactly the next step in the journey of Native 
Hawaiians with the Federal Government.
Original People of the Hawaiian Islands
    The Hawaiian Islands form the apex of the Polynesian triangle that 
extends from New Zealand (Aotearoa) to Easter Island (Rapa Nui) and 
north to Hawaii. The Polynesian triangle includes eight distinct 
cultures: Hawaiian, Maori, Rapa Nui, Marquesan, Samoan, Tahitian, 
Tongan and Tokelauan.
    Our people settled the Hawaiian Islands approximately 2,000 years 
ago, arriving from the South Pacific through extraordinary feats of 
navigation. Our early Native Hawaiian ancestors established a complex 
society based on agriculture and aquaculture. By farming taro, 
breadfruit and sweet potatoes, raising animals, and using fish traps 
and harvesting seafood, our people had a self-sufficient, sustainable 
economy. As Congress recognized, the Native Hawaiian people ``lived in 
a highly organized, self-sufficient, subsistence social system based on 
a communal land tenure with a sophisticated language, culture, and 
religion.'' Apology Resolution, Public Law No. 103-150, 107 Stat. 510.
    We had a complex system of ali'i (chiefs), laws that governed the 
conduct of our people and all of us had an interest in the land. 
Hawaii's State Motto, Ua mau ke`ea o ka`aina i ka pono--``The life of 
the land is perpetuated in righteousness'' reflects the respect that 
all people of the State of Hawaii have for the cultural traditions and 
values of Hawaii's indigenous people. In the same sense as other Native 
Americans are native to the other 49 states, Native Hawaiians are the 
``aboriginal, indigenous, native people of Hawaii.''
The Kingdom of Hawaii
    By 1810, King Kamehameha had consolidated the rule of the Hawaiian 
Islands into the Kingdom of Hawaii. Many foreign nations recognized and 
promulgated treaties with the Kingdom of Hawaii as an independent 
sovereign nation, and the United States entered into treaties with the 
Kingdom of Hawaii in 1826, 1849, 1875, and 1887. In the 1849 Treaty 
with the Kingdom of Hawaii, the United States pledged ``perpetual peace 
and amity.''
    In 1840, the Kingdom of Hawaii became a constitutional monarchy, 
which confirmed that the lands of Hawaii belonged to the chiefs and the 
Native Hawaiian people subject to the management of the land by the 
King. From 1845 to 1848, the Hawaiian lands were divided between the 
ali'i (1,690,000 acres), King Kamehameha III (984,000 acres), and the 
Government (1,523,000 acres). It was recognized that the King held the 
Government lands in trust for benefit of the Native Hawaiian people.
The Overthrow of the Kingdom of Hawaii
    The first foreigners to come to Hawaii beginning in 1778 came as 
explorers and missionaries. The next generation began sugar and 
pineapple plantations. In 1892, when Queen Liliuokalani sought to 
restore the place of the Monarchy through a constitutional revision, 
foreign business interests organized against her. In 1893, armed with 
assistance of the U.S. government minister and the support of the U.S. 
naval forces, the American and European plantation owners overthrew the 
Kingdom of Hawaii in violation of the United States' treaties of 
friendship and commerce.
    Queen Liliuokalani sought to avoid bloodshed and rather than rally 
armed forces, filed diplomatic protests with the United States. 
Although President Cleveland agreed that the U.S. forces had acted in 
violation of international law and called for the restoration of the 
Kingdom, the Provisional Government refused to yield, declaring itself 
the Republic of Hawaii. In 1898, the McKinley Administration accepted 
the annexation of Hawaii through a joint resolution of Congress, 
although the Native Hawaiian people sent petitions objecting to 
annexation.
    The Kingdom of Hawaii's Crown lands and Government lands were 
transferred to the United States as the ``ceded lands,'' by the 
Republic of Hawaii. The Hawaii Organic Act of 1900 formally made the 
Hawaiian Islands a territory of the United States and retained most of 
the laws created by the Kingdom of Hawaii, including ahupua'a tenant 
land rights, and the recognition of ``Hawaiian tradition and custom''. 
Ref: U.S. Department of the Interior and Justice Report: ``From Mauka 
to Makai: The River of Justice Must Flow Freely,'' (2000), explaining 
Hawaii Organic Act, 31 Stat. 141, 56th Cong. 1st Sess. (April 30, 
1900).
    Queen Liliuokalani continued to seek justice for the Native 
Hawaiian people until her death in 1917. She never voluntarily 
relinquished her claims to sovereignty on behalf of the Native Hawaiian 
people. In addition, she actively continued to seek the return of the 
Crown lands for the Native Hawaiian people.
The Hawaiian Homes Commission Act
    Prince Jonah Kuhio Kalanianaole, the Kingdom of Hawaii's heir to 
the throne, participated in a rebellion against the Republic of Hawaii 
in 1895 and was jailed for a year. After his release, he travelled 
widely in Europe and served in the British Army in Africa, returning to 
Hawaii in 1901 to take up his duties as an advocate for our Native 
Hawaiian people. He was elected to Congress and served from 1903 until 
his death in 1922. One of his most singular achievements was the 
enactment of the Hawaiian Homes Commission Act of 1920, which set aside 
approximately 200,000 acres of the ceded lands for homesteading by 
native Hawaiians (\1/2\ or more Hawaiian blood).
    Prior to the overthrow, our people were devastated by foreign 
diseases and our suffering increased after the overthrow. Our difficult 
situation was made plain in the hearings before Congress. Before the 
House Committee on Territories, Territorial Senator John Wise 
testified:

        The Hawaiian people are a farming people and fishermen, out-of-
        door people, and when they were frozen out of their lands and 
        driven into the big cities they had to live in the cheapest 
        places, the tenements. That is one of the big reasons the 
        Hawaiian people are dying. Now, the only way to save them, I 
        contend, is to take them back to the lands and give them the 
        mode of living that their ancestors were accustomed to and in 
        that way rehabilitate them. We are not only asking for justice 
        in the matter of division of the lands, but we are asking that 
        the great people of the United States should pause for one 
        moment and, instead of giving all of your help to Europe, give 
        some help to the Hawaiians and see if you can not rehabilitate 
        this noble people.

    In the same hearings, Secretary of the Interior Lane acknowledged 
our Native Hawaiian people as a native people to whom the United States 
owed a trust responsibility:

        One thing that impressed me there was the fact that the natives 
        of the islands, who are our wards, I should say, and for whom 
        in a sense we are trustees, are falling off rapidly in numbers 
        and many of them are in poverty . . .. [T]hey are a problem now 
        and they ought to be cared for by being provided homes out of 
        the public lands; but homes that they could not mortgage and 
        could not sell.
        H.R. Doc. No. 839, 66th Cong., 2d Sess. at 4 (1920).

    In enacting the HHCA, Congress expressed its intention to, among 
other things, exercise its constitutional Indian affairs power to 
provide for Native Hawaiians by analogizing the Act to ``enactments 
granting Indians . . . special privileges in obtaining and using the 
public lands.''
    H.R. Doc. No. 839.
    As Queen Liliuokalani's heir, Prince Jonah Kuhio Kalanianaole 
provides a continuous link between the Kingdom of Hawaii and our native 
Hawaiian people in 1920. As its legislative history makes clear, the 
HHCA is a statutory recognition of Native Hawaiians as a native people 
to whom the United States owes a special trust responsibility. In other 
words, Native Hawaiians are a recognized native people within the area 
protected by Congress's constitutional authority to provide for the 
betterment of America's native peoples. \1\ The Hawaiian Home Lands 
have assisted our people to maintain distinctly native communities 
throughout Hawaii.
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    \1\ In 1938, Congress reaffirmed these principles through the 
Kalapana Extension Act, which was enacted to provide access, 
homesteading privileges and fishing rights to native Hawaiians within 
the Hawaii National Park. Public Law No. 75-680, 52 Stat. 784 (1938). 
Between 1921 and 1959, Congress enacted 20 other statutes for the 
benefit of Native Hawaiians.
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    For example, residents of Hawaiian Home Lands are organized through 
native Hawaiian homestead associations across the state, which function 
like city councils maintaining community cohesiveness and safety, 
addressing community issues and preserving community values and 
traditions. The membership of these associations consists of individual 
members that elect leadership to implement programs and projects within 
the homestead community.
    In addition, our Native Hawaiian people maintain distinctly native 
communities on the island of Niihau, where our people reside with 
little interference from outsiders, and on other native lands, some of 
which date back to the Kuleana Act of 1850, and have never been 
relinquished from native control and occupation.
The State Admissions Act and Other Statutes
    The State Admissions Act transferred more than 1,125,000 acres of 
the Ceded lands (former Kingdom of Hawaii Crown and Government lands) 
from the United States to the new State of Hawaii. The income and 
proceeds from any sales of such lands are to be used for 5 purposes, 
including ``the betterment of the conditions of native Hawaiians'' as 
defined by the HHCA. Public Law No. 86-3, 73 Stat. 4. The State's use 
of the Ceded lands for any purpose other than those specified in the 
Act would constitute a breach of trust, which the United States 
retained authority to enforce in the courts.
    In addition, the Admissions Act transferred the responsibility for 
administering the HHCA lands from the territorial government to the 
state government as follows: ``the Hawaiian Homes Commission Act, 1920, 
as amended, shall be adopted as a provision of the Constitution of said 
State . . . subject to amendment or repeal only with the consent of the 
United States.'' In this way, the Admissions Act reaffirms the HHCA 
recognition of the Native Hawaiian people as a native people to whom 
the United States owes a unique trust responsibility.
    Since the mid-1970s, Congress has enacted numerous statutes to 
provide for the betterment of Native Hawaiians as part of or analogous 
to congressional programs for other Native American peoples. In total, 
Congress has enacted more than 160 statutes that address Native 
Hawaiian issues.
The Clinton Administration
    On November 23, 1993, President Clinton signed the Native Hawaiian 
Apology Resolution into law. The Apology Resolution:

   Recognizes the Native Hawaiian people as the aboriginal, 
        indigenous, native people of Hawaii and acknowledges that our 
        people have never ceded our claims to sovereignty or our desire 
        for self-determination;

   Recognizes that the United States, in violation of several 
        treaties, through its minister and naval forces, was an active 
        participant in the overthrow of the Kingdom of Hawaii; and

   Apologizes for the United States' role in the overthrow and 
        the deprivation of Native Hawaiian rights; and

   Pledges the Nation to a course of reconciliation with the 
        Native Hawaiian people.

    The Apology Resolution was viewed by Native Hawaiians as a great 
step forward towards justice and reconciliation with the United States. 
The leadership of our congressional delegation on this important issue 
was and continues to be deeply appreciated.
    In February 2000 in Rice v. Cayetano, 528 U.S. 495 (2000), the 
Supreme Court reviewed the state laws restricting voting for the Board 
of Trustees of the State Office of Hawaiian Affairs (OHA) to Native 
Hawaiians to determine whether they violated the 14th and 15th 
Amendments to the Constitution. The Supreme Court held that the state 
law voting restriction based upon Native Hawaiian ancestry was 
unconstitutional under the 15th Amendment's prohibition against any 
race based limit on the right to vote. The Supreme Court rejected an 
analogy to Native American tribal elections, which are conducted by 
tribes as native sovereigns, from the state sponsored elections for a 
state office within a state agency.
    In the Rice case, the Justice Department argued that state 
legislation on behalf of Native Hawaiians is permissible under the 14th 
Amendment because it is consistent with Federal laws for the betterment 
of Native Hawaiians, reasoning:

        Congress does not extend benefits and services to Native 
        Hawaiians because of their race but because of their unique 
        status as the indigenous people of a once-sovereign nation as 
        to whom the United States has a recognized trust 
        responsibility.

    The Justice Department explained further that so long as Congress 
rationally concludes that a native people remain a ``distinctly'' 
native community, Congress has authority to provide for the betterment 
of such community. That is true whether the native community is within 
the original or the subsequently acquired territory of the United 
States. See United States v. Sandoval, 231 U.S. 45-46 (1913). The Court 
did not reach the 14th Amendment claim that state statutes enacted for 
the betterment of Native Hawaiians violates the equal protection clause 
as race based laws. \2\
---------------------------------------------------------------------------
    \2\ In a concurring opinion, Justices Breyer and Souter cast doubt 
on the 1778-based lineal descendent rule as being too remote in time.
---------------------------------------------------------------------------
    In 1999, in furtherance of the Apology Resolution, the Clinton 
Administration sent a delegation from the Departments of the Interior 
and Justice to Hawaii on a fact finding mission to meet with Native 
Hawaiians on all the major islands in furtherance of reconciliation. 
\3\ After many meetings with Native Hawaiian people, state officials 
and our congressional delegation, the Departments produced a report 
entitled: ``From Mauka to Makai: The River of Justice Must Flow 
Freely,'' (2000). Issued in September 2000, after due consideration of 
the Supreme Court's decision in Rice v. Cayetano, the Mauka to Makai 
Report explains that:
---------------------------------------------------------------------------
    \3\ The Island of Niihau remained closed to the U.S. officials, but 
Native Hawaiians from Niihau travelled to Kauai to meet with the 
officials and expressed their desire for more autonomy for Native 
Hawaiians and better education and health services.

        It is evident from the documentation, statements, and views 
        received during the reconciliation process undertaken by 
        Interior and Justice pursuant to Public Law 103-150 (1993) 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. As a matter of justice and equity, the 
        Departments believe the Native Hawaiian people should have 
        self-determination over their own affairs within the framework 
        of Federal law, as do Native American tribes. For generations, 
        the United States has recognized the rights and promoted the 
        welfare of Native Hawaiians as an indigenous people within our 
        Nation through legislation, administrative action, and policy 
        statements. To safeguard and enhance Native Hawaiian 
        selfdetermination over their lands, cultural resources, and 
        internal affairs, Congress should 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 . . .
        Mauka to Makai, Recommendation 1.

    The Akaka bill, S. 1011, responds and fulfills this recommendation. 
At the September 14, 2000 hearing on the first version of the Akaka 
bill, the Departments of Justice and Interior both expressed their 
``general support'' for the bill with the exception of uncertainty 
concerning a definition of ``Native Hawaiian'' based upon a 1778 date.
The Obama Administration
    In the Senate, President Obama was a co-sponsor of the Akaka bill 
and he voiced further support for the bill on the presidential campaign 
trail.
    We call upon Attorney General Holder and Secretary Salazar to 
support the Native Hawaiian Government Reorganization Act and to help 
our Native Hawaiian people secure its enactment in this session of 
Congress.
S. 1011--The Native Hawaiian Government Reorganization Act of 2009
    The Native Hawaiian Government Reorganization Act of 2009, S. 1011, 
does not create or newly establish federal recognition of the Native 
Hawaiian people--it reaffirms the status of Native Hawaiians as a 
recognized native people of the United States. Our people have been 
recognized as the aboriginal, indigenous, native people of Hawaii since 
the time of annexation:

   The Organic Act preserved the land tenure and other laws of 
        the Kingdom of Hawaii;

   Through the HHCA, the Administration and Congress expressly 
        recognized our Native Hawaiian people as a ``native people'' to 
        whom the United States owed a trust responsibility;

   The Admissions Act reaffirmed the HHCA and its recognition 
        of native Hawaiians and furthered that recognition through the 
        preservation of the Ceded lands for the benefit of the native 
        Hawaiian people, among other things; and

   Through more than 160 statutes, Congress has continued to 
        provide for the betterment of the Native Hawaiian people.

    The Akaka bill is a government reorganization bill, similar to the 
Indian Reorganization Act of 1934, 25 U.S.C. sec. 466-467. In summary, 
S. 1011 does the following:

   Defines the term ``Native Hawaiian'' based upon reference to 
        the native citizens of the Kingdom of Hawaii at the time of the 
        overthrow and their lineal descendants and also provides a 
        definition based upon reference to the native Hawaiians 
        eligible for HHCA lands and their descendants;

   Establishes its purpose 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 the purposes of a government-to-government 
        relationship;

   Establishes the United States Office for Native Hawaiian 
        Relations within the Department of the Interior and an Inter-
        agency working group to consult with the Native Hawaiian 
        government on issues important to our people;

   Provides a process for reorganization of the Native Hawaiian 
        Government and a process for establishing the initial roll of 
        the Native Hawaiian community under the auspices of the 
        Secretary of the Interior and provides for the adoption of a 
        constitution and Native Hawaiian membership criteria by the 
        Native Hawaiian government; and

   Has provisions concerning the federal, state and native 
        government authority and claims against the United States and 
        the state.

CNHA Comment on Definition
    As previously stated, CNHA strongly supports S. 1011 with 
revisions. We comment on the definition of Native Hawaiians for the 
benefit of the Committee and the Obama Administration.
CNHA Supports Initial Definition of ``Native Hawaiian'' Because the 
        Final Citizenship Rule Is to Be Determined by the Native 
        Hawaiian Government
    S. 1011 establishes an initial definition of ``Native Hawaiian'' 
for purposes of establishing a base roll. We believe that it is 
appropriate for the Department of the Interior to assist the Native 
Hawaiian community in this way because the United States has a direct 
trust responsibility to promote the welfare of the Native Hawaiian 
people. CNHA also believes that in the long run it is the right and 
duty of the Native Hawaiian people to take the next step and provide an 
ongoing rule for citizenship in the Native Hawaiian government.
    CNHA understands that the lineal descent rule utilizing the 1778 
date that Justices Breyer and Souter questioned in the Rice case would 
cause concern for the Justice Department. S. 1011 has improved on the 
state definition at issue in Rice by moving the timeline up by 115 
years to 1893 in the first part of the definition and in the second 
part of the definition based upon the HHCA, the timeline is moved up by 
more than 140 years.
    CNHA believes that the Akaka bill provisions that establish an 
initial definition of the term ``Native Hawaiian'' are constitutional 
and that is of the utmost importance. This definition must be based 
upon a solid legal foundation since it is one of the essential 
cornerstones of the Act. Indeed, it may be wise to bring forward the 
date of the HHCA definition by referring to those originally eligible, 
adding a reference to those now eligible, and including the lineal 
descendants of said individuals.
    We note that Congress has used a base roll based upon lineal 
descent for Indian tribes. For example, The Modoc restoration act uses 
``lineal descendants''--25 USC 861a(3):

        The Modoc Indian Tribe of Oklahoma shall consist of those Modoc 
        Indians who are direct lineal descendants of those Modocs 
        removed to Indian territory (now Oklahoma) in November 1873, 
        and who did not return to Klamath, Oregon pursuant to the Act 
        of March 9, 1909, as determined by the Secretary of the 
        Interior, and the descendants of such Indians who otherwise 
        meet the membership requirements adopted by the tribe.

    The date used for the Modocs, 1873, is more remote in time than the 
reference date of the overthrow of the Kingdom of Hawaii in 1893, yet 
Congress determined that it was appropriate because of the importance 
of the event in the life of the native community.
    Finally, it is noteworthy that while some will point to the 14th 
Amendment equal protection clause to undermine the right of Native 
Hawaiians to self-government and self-determination within the 
framework of federal law, we must remember that the text of the 
Amendment and the history of its ratification reaffirm the political 
status of Native American citizens as citizens of America's original 
sovereigns. The 14th Amendment's Citizenship Clause, which precedes the 
Equal Protection Clause, makes those persons who are at birth subject 
to the ``jurisdiction'' of the United States automatically citizens, 
yet the Supreme Court held that this American citizenship was not to 
include tribal citizens because they were first and foremost subject to 
the jurisdiction of their own native nations. \4\ The 14th Amendment's 
Apportionment Clause, immediately following the Equal Protection 
Clause, repeats the original constitutional provision ``excluding 
Indians not taxed'' from apportionment. Since the original language of 
the Constitution is repeated, the framers of the 14th Amendment must 
have meant the original Indian affairs power--and by Indian they meant 
``native''--comfortably co-exists with the Equal Protection Clause. \5\
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    \4\ American Indians had to be naturalized pursuant to treaty or 
statute. Accordingly, most American Indians were not citizens until the 
1924 American Indian Citizenship Act.
    \5\ In fact, at the time of the 14th Amendment drafting, 
ratification and proclamation, the President and Congress were in the 
process of negotiating and ratifying numerous Indian treaties pursuant 
to the Indian Peace Commission, including Treaties with the Sioux, 
Navajo, Crow, Shoshone-Bannock, Cheyenne, Arapaho, Apache, Kiowa, and 
Comanche Nations.
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CNHA Requested Revisions
    CNHA recommends revisions to Section 8 and 9 of S. 1011, to ensure 
that our Native Hawaiian government authority is an effective means to 
embrace the responsibilities and challenges we face as a people. Any 
government reorganized by our Native Hawaiian people should be vested 
with the inherent powers of native self government and positioned to 
negotiate as intended with the state and federal governments to ensure 
effective administration of government.
CNHA Requests Revisions to Sections 8(b)(3) and 9(e) Because As 
        Written, It Undermines the Inherent Authority and Jurisdiction 
        of the Native Hawaiian People
    Sections 8(b)(3) and 9(e) of the Act may inadvertently undermine 
the inherent authority and jurisdiction of the Native Hawaiian people 
by conditioning our exercise of governmental functions upon the 
successful negotiation with the United States and the State of Hawaii 
over criminal and civil jurisdiction and all other aspects of 
government. Absent such agreement, the Act would prohibit the Native 
Hawaiian government from exercising any power that is currently 
exercised by the Federal or state governments. This includes every 
aspect of government duties and functions, so as drafted the Act might 
prohibit the Native Hawaiian government from acting in furtherance of 
traditional laws and justice systems. For example, even the most basic 
programming of the care and welfare of children would be prohibited 
until negotiated.
    In contrast, the Indian Reorganization Act vested Indian tribes 
with existing powers of native governments while authorizing tribes to 
negotiate with Federal and state officials. The Supreme Court has 
recognized that Indian tribes maintain inherent authority over their 
members and their territory, and in fairness, the Native Hawaiian 
government should have such authority to provide for the betterment of 
our people. Such authority includes the power to determine the form of 
government, the power to determine membership, the power to operate the 
native government and carry out government responsibilities, including 
services and programs, power to approve or veto the use or disposition 
of native government assets, the power to determine domestic relations 
and to enforce native law on native lands. The House of Representatives 
recently affirmed the same type of authority for the Virginia tribes in 
H.R. 1385, 111th Cong. 1st Sess. CNHA respectfully submits that 
Sections 8(b)(3) and 9(e) should be deleted and replaced with the 
following language:

        The Native Hawaiian government shall be vested with the 
        inherent powers and privileges of a native government under 
        existing law, with the exceptions set forth in Section 9(a) of 
        this Act. These powers and privileges of self-government may be 
        modified as agreed to in negotiations with the Federal and 
        state governments pursuant to section 8(b)(1) of this Act 
        beginning on the date on which legislation to implement such 
        agreement has been enacted by the United States Congress, when 
        applicable, and by the State of Hawaii, when applicable. This 
        includes any required modifications to the Hawaii State 
        Constitution in accordance with Hawaii Revised Statutes. Except 
        as provided through such agreement, nothing in this Act shall 
        preempt Federal or state authority over Native Hawaiians under 
        existing Federal law, provided further that nothing herein 
        shall authorize the State to regulate or tax the Native 
        Hawaiian government in the exercise of its powers of self-
        government or management of native government lands or assets.

CNHA Requests Revisions to Sections 8(c)(2) and 8(c)(3) Because As 
        Written, It Extinguishes Claims without Compensation
    Sections 8(c)(2) and 8(c)(3) seek to assert sovereign immunity for 
federal and state governments vis-a-vis existing Native Hawaiian land 
and breach of trust claims concerning the administration of HHCA and 
Ceded lands. 8(c)(2) would make these claims ``nonjusticiable'' and 
limits anyone other than the Federal Government from bringing such 
claims on behalf of the Native Hawaiian people. This raises both 
constitutional and policy problems.
    The Fifth Amendment provides that recognized native lands may not 
be taken without just compensation. Claims for recognized lands are 
also protected property rights under the Fifth Amendment. Congress may 
not extinguish these claims without compensation.
    Moreover, the Native Hawaiian Government Reorganization Act is 
intended to facilitate reconciliation between the Native Hawaiian 
people and the United States, and a statutory barrier to existing 
claims by Native Hawaiians would create further injustice. Even when 
Indian tribes were subject to termination, Congress preserved land 
claims for appropriate adjudication and resolution. See 25 U.S.C. sec. 
750 (``Nothing in this subchapter shall deprive any Indian tribe . . . 
of any right, privilege, or benefit . . . including the right to pursue 
claims against the United States as authorized by the Act''). Fairness 
indicates that this Act should not determine or limit any existing 
claims of the Native Hawaiian people, so a savings clause would be 
appropriate. The Supreme Court has recently ruled that the Apology 
Resolution provision is neutral in meaning, so it should be employed in 
this Act as well. It says simply . . . 

        Nothing in this Act is intended to serve as a settlement of any 
        claims against the United States or the State of Hawaii.

    This provision should replace sections 8(c)(2) and 9(e) of the 
current bill.
CNHA Requests Section 9(b) and 9(c) be Deleted Because As Written, It 
        Prohibits Land Into Trust
    Section 9(b) would prevent the Secretary of the Interior from 
taking land into trust for the Native Hawaiian government. This is 
contrary to the interests of the Federal, state, and Native Hawaiian 
governments. As was shown in the case of Kaho'olawe where the 28,000 
acre Island was placed in trust for the Native Hawaiian government, it 
may be advantageous to the Federal, state and Native Hawaiian 
governments to preserve this option to address future land issues.
    As to the Trade and Intercourse Act protection against the 
alienation of native lands, the Act either did or did not apply in the 
past, that cannot be changed by legislation today and there is no 
principled reason why this protection should not apply prospectively to 
Native Hawaiian lands. Accordingly, Section 9(c) should be deleted as 
well.
CNHA Requests Language to Define the Role of the Department of Justice 
        Because It Provides Proper Assistance in Line with the Federal 
        Trust Responsibility
    The original versions of this bill envisioned a specific role for 
the Department of Justice, which we believe is important to the 
implementation of the bill once enacted. Language from H.R. 1711 as 
follows:

        The Attorney General shall designate an appropriate official 
        within the Department of Justice to assist the United States 
        Office for Native Hawaiian Affairs in the implementation and 
        protection of the rights of Native Hawaiians and their 
        political, legal, and trust relationship with the United 
        States, and upon the recognition of the Native Hawaiian 
        government as provided for in section 8(c)(6) of this Act, in 
        the implementation and protection of the rights of the Native 
        Hawaiian government and its political, legal, and trust 
        relationship with the United States.

CNHA Requests Section 5(c) and Section 6(e) be Deleted Because It Is 
        Unnecessary
    These sections are unnecessary, as the Department of Defense is 
currently required to participate in consultation with the Native 
Hawaiian community through various federal acts, for example, the 
Native American Graves Protection and Repatriation Act, the National 
Historic Preservation Act, and the National Environmental Policy Act.
Conclusion--Enact S. 1011 as Revised
    Thank you for the opportunity to provide testimony. As one of many 
Native Hawaiian community leaders that participated in the 
Reconciliation Hearings held by the Department of Justice and Interior 
in 1999, as well as a participant on Senator Akaka's Working Group in 
2000 which engaged community leaders, constitutional scholars, state 
officials and others that resulted in the first initial legislation to 
address this long standing issue, I respectfully request the 
Committee's support.
    In this, the 50th year of statehood, 2009 is the year that Congress 
should enact S. 1011. As Native Hawaiians, we want to be responsible 
for our resources and for our communities. We want to be a full and 
active partner with the state and federal governments in resolving 
challenges and applying solutions in our communities. S. 1011 
represents a pathway to once again having our own voice to govern our 
own affairs, and to take our rightful place in truly applying the 
talent, knowledge and opportunities in our homeland that will enrich 
the lives of all in Hawaii.

    Senator Akaka. Thank you very much, President Robin Danner, 
and thanks to all of you.
    I would like to first call on our senior Senator for any 
comments.
    Senator Inouye. Mr. Chairman, I have just received notice 
that pending will be an amendment that will have a profound 
impact upon the Committee which I am honored to chair, the 
Appropriations Committee. Therefore I will have to leave the 
chamber. I want to express my regrets to all of you.
    I hope I may be permitted to submit questions. I will 
prepare them and submit them to you. Would that be okay?
    If you will excuse me, aloha to all.
    Senator Akaka. Senator Inouye, we look forward and we will 
certainly include your statements and questions in the record.
    Chairman Apoliona, as you are aware, there were conditions 
by which Hawaii was admitted into the Union that related to the 
State adopting the Hawaiian Homes Commission Act and utilizing 
public lands for one of five purposes, including addressing the 
conditions on Native Hawaiians. My question to you is, how does 
enactment of S. 1011 affect the current efforts of the State of 
Hawaii in its treatment of Native Hawaiians?
    Ms. Apoliona. It would seem to me that enactment of Senate 
Bill 1011 would enhance the current and future position of 
Native Hawaiians as defined under the Admissions Act, and be 
even more inclusive of, as was stated by a couple of the 
testifiers, inclusive of Native Hawaiians as a people, as a 
unified people, moving toward the creation of this Native 
Hawaiian governing entity.
    If I recall, back when, in some of the Congressional 
records and the discussion that went on when delegate to 
Congress, Kuhio Kalaniana'ole, fought so hard for the Hawaiian 
Homes Commission Act, he was really after opening the benefits 
of the Act that he had in mind, as Chairman Kane says, to 
rehabilitate the Hawaiian community. His goal was for the 
broadest opportunity to serve his Hawaiian people.
    So I think this S. 1011 will be a return to that philosophy 
of engaging the most inclusive and strongest participation by 
Native Hawaiians for the future.
    Senator Akaka. Thank you for that response. I know you were 
here at the lei draping of King Kamehameha in June.
    Ms. Apoliona. Yes.
    Senator Akaka. For anyone that might question whether or 
not the Native Hawaiian culture exists in Hawaii, as well as 
throughout the Country, for this momentous occasion in June, in 
our Nation's capital, does the Native Hawaiian culture still 
exist?
    Ms. Apoliona. Absolutely, Senator Akaka. And I think 
Chairman Kane, in previous testimonies, has said that even 
those who are not Native Hawaiian of the blood have become part 
and beneficiaries of Native Hawaiian culture.
    Senator Akaka. Can you share some of the events, activities 
that were significant, the types of activities?
    Ms. Apoliona. Absolutely. Certainly the demonstration of, 
at Emancipation Hall, the demonstration of oli, our mother 
tongue, our chants, our hula, in celebration and in honor of 
our historic leader, indigenous leader, Kamehameha, and 
celebration of those indigenous leaders that followed him.
    But certainly Kamehameha the Great, whose statue is in 
Emancipation Hall under that skylight, sits for the next decade 
and beyond for Native Hawaiians a prominent place for now our 
Kamehameha the Great, the indigenous leader who united in one 
governance Native Hawaiians back in the late 1800s, now this 
effort to continue a united governance for Native Hawaiians in 
the 21st century seems to me to be a continuation of this 
intended leadership to support, enhance and bring, continue to 
being well-being to his Native people.
    Senator Akaka. Mahalo. Thank you for your responses.
    Chairman Kane, the purpose of establishing the Hawaiian 
Homes Commission Act, as you know, was to rehabilitate Native 
Hawaiians by returning them to the land. Questions have been 
raised whether or not a distinct Native Hawaiian community 
exists in Hawaii. Do you have any comments for the Committee to 
consider on this issue?
    Mr. Kane. Yes, I would. Thank you, Senator, to be able to 
comment on this question.
    Without question, we do have distinct Hawaiian communities. 
My comments that I alluded to in my testimony were to express 
really what we believe will solidify the future prosperity of 
our State, which is the sharing of our culture with others.
    So while we have distinct communities, we embrace others. 
The further our success is in that effort, the better off we 
will be as a State. Our prosperity as a State lies in our 
ability to assure our culture exists in these lands forever. 
Otherwise, it is just a pretty place. This bill allows us to do 
that.
    Senator Akaka. As you know, Mr. Kane, the cost of living in 
Hawaii is much higher in comparison to other States. Hawaii's 
housing costs are among the highest in the Country, and 
homelessness is at a record level. What role would you say 
homestead leases have on the ability of Native Hawaiians to 
continue to reside in Hawaii, rather than to seek employment or 
housing elsewhere? Also, is it uncommon for individuals who 
have lived outside of Hawaii for a number of years that are 
awarded homestead leases to return to Hawaii despite the high 
costs of living?
    Mr. Kane. We are seeing a tremendous amount of people 
returning to Hawaii as a result of the acceleration that has 
occurred over the past few years. People coming home and being 
a part of the communities that they left because of the 
economic and housing challenges that existed in our State.
    I think some of the testimony we heard from Ms. Danner is a 
commentary that tells you how important our homestead program 
is to our people and the role that it is playing. I think in 
Hawaii, one of the misconceptions is that when a person gets 
into a home, that is the end point. For us, that is just the 
beginning. Home ownership is the beginning for somebody to 
launch their lives off to a much better place. It is not an end 
point.
    The authority that you are giving us as an entity, the 
Department of Hawaiian Home Lands, to do that, is a tremendous 
authority, a tremendous resource that we are providing our 
people. We are seeing Hawaiians today serving in leadership 
positions that we may not see other natives serve in other 
States. And in our cabinet alone, we have four Native Hawaiians 
who serve. Our previous chief of staff was a Native Hawaiian. 
Our Lieutenant Governor is a Native Hawaiian. Our Senator is a 
Native Hawaiian.
    And I think all of that is in part due to the Hawaiian 
Homes Commission Act.
    Senator Akaka. Can you describe, Mr. Kane, the kind of 
relationship Hawaiian Homestead communities have with 
neighboring communities and businesses, especially given the 
regional planning that occurs?
    Mr. Kane. The Department of Hawaiian Home Lands is 
operating in 20 regions throughout the State of Hawaii. In each 
of those regions, DHHL is only a portion of the land ownership 
there. However, in those regions, we partner in all 
infrastructure improvements: roads, water, sewer and public 
facility needs. That allows us to do a few things. It allows us 
to focus our resources and have better uses of our resources.
    From a cultural standpoint, it allows us to share in those 
things that we feel are important, to see non-Hawaiians sharing 
in our language and actually speaking in our language. It 
allows us to be much more efficient in the efforts that we are 
undertaking.
    We utilize licenses of agreements, memoranda of agreement 
with our counties, land use decisions are made in coordination 
with both State land use policy as well as county land use 
policies. When we build, we designate zoning and we build to 
that county's zoning standards. And we create memoranda of 
agreements to guide the maintenance of those utilities going 
forward.
    So a lot of the issues that people have raised over the 
years with regard to some of the concerns of how our entities 
would interface with other government agencies are already in 
practice today, and those things are happening within the 
Department of Hawaiian Home Lands today.
    Senator Akaka. Thank you.
    Mr. Bartolomucci, does this bill create a race-based 
government? You did have a statement on that.
    Mr. Bartolomucci. It creates a governing entity for Native 
Hawaiians. In terms of the legal issue presented by that, the 
Supreme Court case law is very clear that the Congress may deal 
with indigenous, sovereign groups and their governing 
structures on a government-to-government basis. That is not to 
be considered race-based legislation that would otherwise run 
afoul of constitutional restrictions on race-based action.
    So the ability of the Congress to deal with Indian tribes 
and governing structures of other Native peoples is well 
established and does not run afoul of equal protection 
principles.
    Senator Akaka. How do you think this bill affects personal 
property, social services and citizens' rights?
    Mr. Bartolomucci. I don't believe it would diminish 
anyone's rights in those regards. The bill does require the 
governing entity to include protections for civil rights. But 
of course, the members of the governing entity would always 
remain United States citizens and retain all of the rights of 
U.S. citizens.
    Senator Akaka. Upon enactment of S. 1011, would Native 
Hawaiians be subject to the laws of the United States? And can 
you explain, is the status quo maintained?
    Mr. Bartolomucci. The members of the governing entity would 
absolutely be subject to the laws of the United States. Indian 
tribes and other Native governing structures are not above the 
law or not above Federal law and remain subject to Federal law, 
which remains the supreme law of the land.
    Senator Akaka. Thank you for your responses.
    President Danner, there is a misconception that enacting S. 
1011 will only benefit Native Hawaiians. As a grassroots 
member-based organization, focused on improving community 
development, can you explain how Federal recognition helps 
address community, Native and non-Native, needs?
    Ms. Danner. Thank you for the question, Senator.
    I agree with Chairman Kane when he says that the 
advancement of Native Hawaiians in Hawaii raises the standard 
of living, the quality of life, of all citizens of our State. 
The misconception that Senate Bill 1011 would serve only Native 
Hawaiians is false, just as in the 35 States, 36 States where 
federally-recognized Native governments around the rest of the 
Country are impacting in a very positive way their respective 
States.
    I will give an example, in Hawaii, it started about 10 
years ago, some of our grassroots communities were very 
concerned about education and putting forward solutions in the 
arena of education and making sure that the knowledge of our 
ancestors was properly and also taught along with the academia 
of reading, writing, but also sharing the sciences of our 
astronomy and such. Now, 10 years later, that charter school 
movement, Native Hawaiian-focused charter schools, are 
enriching the educational system across the State for all 
communities, whether a Native child or a non-Native child. It 
is truly one of the bright spots of local education and what 
happens when communities are empowered to take the resources 
and the identities of their place on the planet into 
communities to advance solutions to challenges facing them.
    Senator Akaka. In your testimony you mentioned that you are 
presently a homesteader on Hawaiian home lands. You also lived 
in American Indian and also Alaska Native communities as well. 
What impact on these communities has the policy of Federal 
recognition had? How has the government-to-government 
relationship unified and supported working relationships 
between Natives and non-Natives in the States where you have 
resided?
    Ms. Danner. That is a great question. There are stark 
contrasts. Clarity, for one. In those locations where there is 
a government-to-government relationship, there is clarity not 
only for the Native community but for the community outside. 
There is clarity of where to go and where issues can be dealt 
with. There is a representative body, a clear representative 
body that is longstanding and can be engaged, and there is a 
process, a known process.
    Another is that Federal recognition has brought to other 
indigenous peoples a focal point, really a way to have the 
great debate about the challenges of the day. And what cultural 
norms, customs, can be codified within that Native community 
and applied as a solution.
    For example, child foster care. We have witnessed Native 
governments being able to support and assist State governments 
that have not done so well in terms of reunification with 
children with families. But yet when a Native government is 
present and able to apply solutions for that family, we have 
seen a rise in reunification of Native children with an 
extended family. That would be one example.
    And finally, I would say my last example would be, you can 
clearly see centralized programming and dialogue and 
partnerships more easily integrated and executed out into the 
community when Federal recognition is a known quantity and the 
community knows what their representative body is.
    Senator Akaka. Ms. Danner, you served as an original member 
of the Native Hawaiian task force, one of the five task forces 
established to contribute to the initial drafting of this 
legislation. Can you share with the Committee who the other 
task forces were and how the bill benefited from the 
contributions and expertise of the other task forces?
    Ms. Danner. Yes, Senator. After the Clinton Administration 
Department of Justice and Department of Interior in 1999 came 
out for the reconciliation hearings and spent an inordinate 
amount of time, went all around the State speaking with our 
communities, in 2000 there were five working groups or task 
forces appointed by our Hawaii delegation and chaired by you, 
Senator.
    Those task forces, we had a Congressional working group of 
Congressional representatives. We had a working group of 
Federal officials from across the different agencies in the 
Federal Government that worked with Native programs. We had a 
State government officials working group that we were able to 
integrate and discuss and look at the angle of State agencies. 
We had a constitutional scholars working group from all around 
the Country taking a look at the constitutionality and 
learning, frankly, from the previous eras of Federal Indian 
policy.
    And the fifth working group was a Native Hawaiian community 
leaders working group with individuals with diverse backgrounds 
from all across the State, from various areas of expertise. It 
was a very intense and rewarding process to be able to be 
having a very in-depth dialogue, multi-faceted conversation 
about getting results and what would work and what would work 
best, not just for the Native Hawaiian community but for our 
State.
    Senator Akaka. Thank you. When I think back to the five 
task forces, it really helped us craft the bill. And as I 
mentioned in my testimony, all of this too began with the 
Mauka-Makai study that was made and the report that was 
written. So we have progressed from that beginning to where we 
are today. All these years, I think the core goals that we have 
set are still prominent and good for the future of Native 
Hawaiians. So we really appreciate the contributions that all 
of you and the panel have made. We certainly appreciate that.
    I just wanted to ask Mr. Gunn a question. Can Native 
Hawaiians be treated as other Native Americans by Congress 
under the Indian Affairs power?
    Mr. Gunn. Thank you, Senator Akaka.
    I think the answer is a definitive yes. As Professor 
Benjamin noted, there is no definition of Indian or Indian 
tribe in the Constitution. The Constitution does use both of 
those terms. It references in the Commerce Clause Indian tribes 
and then in the Apportionment Clause and then again in the 14th 
Amendment, it speaks of Indians.
    In regard to the term Indian Tribe, it has been used 
synonymously or interchangeably with the term Indian Nation. 
Hamilton in Federalist 24 talked about regulating trade with 
Indian tribes and spoke of them as Indian nations. And 
Worcester v. Georgia, Chief Justice Marshall talked about the 
words treaty and nation as being Anglo words of our choice, but 
clearly words that are applicable to Indian tribes.
    Native Hawaiians are clearly a nation, both prior to and 
after contact with Europeans, the United States in fact entered 
four treaties with the Native Hawaiian nation. So clearly, 
Native Hawaiians are a nation of Native people.
    The term Indian has been used interchangeably with the term 
aboriginal. In 1846, in a case called United States v. Rogers, 
the supreme Court described Indian tribes as ``aboriginal 
tribes of Indians.'' In 1867, the United States enacted the 
Treaty of Cession with Russia, and it spoke of Alaska Natives 
and compared their treatment to that of the ``aboriginal 
tribes'' of the United States.
    So we have used the word Indian and aboriginal 
interchangeably, and clearly, Native Hawaiians are the 
aboriginal and Native peoples of the Hawaiian Islands.
    The Constitution, of course, was written, ratified, I 
should say, in 1789 when there were 13 colonies. But it has 
been applied and those terms, Indian tribes and Indians, have 
been applied to Native peoples beyond the original 13 colonies. 
And just as Natives in States and territories beyond the 
original 13 colonies, including Alaska Natives, have been 
included in the definition of Indian, so too should Native 
Hawaiians.
    Senator Akaka. Is it significant that the United States 
minister and naval forces participated in the overthrow?
    Mr. Gunn. I think so, Senator, in that the United States 
was involved in the course of events that undermined or led to 
the overthrow of the Native Hawaiian kingdom. The United States 
has apologized for that. It has in the 100 years and even the 
many years between the overthrow and the Apology Resolution, 
and the years since the Apology Resolution, maintained a 
steadfast commitment to the welfare and betterment of Native 
Hawaiian people. It wasn't long after the overthrow that the 
United States passed the Hawaiian Homes Commission Act, and 
then reaffirmed the promise of bettering the lives of Native 
Hawaiians 50 years ago, in the 1959 State Admissions Act.
    It is only fitting now, in the 50th anniversary of Hawaiian 
statehood that Congress and the United States take the next 
step toward bettering the lives of Native Hawaiians by 
reorganizing the Native Hawaiian government that was overthrown 
with United States involvement.
    Senator Akaka. So just to make that point again, most 
scholars agree that the Hawaiian Homes Commission Act and the 
State Admissions Act are constitutional. Do you agree?
    Mr. Gunn. I do, Senator. I absolutely agree. I would agree 
with the statements that have been made before me that the 
United States has authority to legislate in behalf of Native 
peoples. That derives from the Constitution.
    In the written comments that I have submitted, I address 
the issue of whether Congress is constrained or limited by 
principles of equal protection when it legislates in behalf of 
Native people. And I would like to just address that briefly.
    The equal protection principle in the U.S. Constitution 
finds its birthplace in the 14th Amendment, which of course was 
one of three amendments ending slavery and guaranteeing the 
right of citizenship and the vote to freed African American 
slaves. The 14th Amendment contains the equal protection 
clause, the 5th Amendment Due Process clause has what is called 
an equal protection component.
    But the 14th Amendment spoke specifically of Native 
Americans. In Section 2, American Indians are excluded from 
apportionment of representatives in the House, and Indians not 
taxed are excluded. And in Section 1, it is quite clear that 
Indians are not included as citizens of the United States 
because only persons born in the United States and subject to 
the jurisdiction of the United States were to be included as 
citizens. That quite clearly at the time did not include 
Indians. The legislative history is clear, and the Supreme 
Court made that clear just a few years later in Elk v. Wilkins.
    I mention this because the birthplace in our Constitution 
of the doctrine of equal protection is also, it is the 14th 
Amendment, and that is also an amendment that affirms that 
Native peoples are separate. They are separate, they were not 
citizens of the United States, they had their own governments, 
and they still do, to which they owed allegiance. And the 
United States had a history of enacting treaties with and 
legislation for Indian people. By repeating that phrase, 
Indians not taxed, which was used in the original Constitution, 
Congress and the United States ratified that policy of treating 
Indians as members of separate nations and considering them as 
distinct.
    So when Congress passed the Hawaiian Homes Commission Act 
and the Statehood Act, it was doing what it was 
constitutionally permitted to do, which is, treat natives as 
citizens of their own distinct, separate nations.
    I will note that even if one were to say that principles of 
equal protection were to apply, applied against the Federal 
Government by virtue of the 5th Amendment, I would suggest that 
the Hawaiian Homes Commission Act is clearly constitutional, 
because it fulfilled a compelling government interest, and it 
was narrowly tailored to achieve that purpose. The same with 
the Admission Act.
    Senator Akaka. Let me ask, is there a precedent for the 
Native Hawaiian definition using one-half Hawaiian blood in 
lineal descendants?
    Mr. Gunn. In the Indian Reorganization Act of 1934, the 
definition of Indian included any member of a federally-
recognized tribe or Indians of one-half blood quantum. So there 
is a precedent for the use of blood quantum.
    I would just concur with the views of others before me that 
although Congress has used blood quantum in the past, and 
although it may use it in this piece of legislation to set the 
outer boundaries of tribal membership, tribes have, and ought 
to continue to have the ability to define their own membership 
further. And the Native Hawaiian governing entity created by S. 
1011 should be permitted to set its own standards including any 
standard based on close connection to the Native Hawaiian 
community, as suggested by Professor Benjamin.
    Senator Akaka. Just as an interest here, how does S. 1011 
compare to the Indian Reorganization Act?
    Mr. Gunn. It is similar in some respects and dissimilar in 
others. The similarities include allowing Native nations to 
reorganize and to form constitutional governments with full 
Federal recognition. And in the case of the Indian 
Reorganization Act, of course, it followed a long period of 
allotment and assimilation of Indian lands in the continental 
48. And that period of allotment and assimilation, which 
started in 1887, was terribly destructive to Native 
governments, Native political organizations and Native 
communities. The Reorganization Act took, damaged Indian 
communities and allowed them to reorganize their Native forms 
of government.
    S. 1011 does the same thing for Native Hawaiians, Native 
Hawaiians who have seen their Native form of government damaged 
by the history of events including the Federal Government's 
involvement. But Native Hawaiians have not lost their distinct 
culture or their existence as a distinct community. And just as 
were tribes in the lower 48 allowed to reorganize in 1934, so 
too will the Native Hawaiian people.
    S. 1011 is distinct from the Indian Reorganization Act in 
that it does allow for a continued negotiation process with the 
State and Federal governments to define the scope of Native 
powers, whereas under the IRA, Native governments were vested 
with all powers of Native governments under then-existing 
Federal law. For the Native Hawaiians, they will, as the 
legislation is currently drafted, they will be required to 
negotiate further with the Federal and State governments before 
they can acquire all of the inherent powers of Native 
governments. The CNHA has submitted comments suggesting some 
revisions to that provision of the legislation, and we are 
available to discuss those with the Senator.
    Senator Akaka. Let me ask my final question to you. Do you 
believe that S. 1011 is constitutional?
    Mr. Gunn. Absolutely. I think for the reasons I said 
before, Congress has the power to treat with and enact 
legislation for American Indians that is not fettered by the 
principle of equal protection. The Constitution did not include 
American Indians within the American democracy. They had their 
own democracies. They were members of distinct nations. They 
were not counted for apportioning representatives.
    The U.S. made treaties with them that regulated commerce 
with them. But they were members of their own democracies. And 
that policy was continued in the 14th Amendment, the very 
birthplace in our constitution of the principle of equal 
protection. So by putting that policy of separatism in the very 
same amendment that finds the birthplace of equal protection, 
the United States was saying, we will continue to treat Indians 
as members of separate nations and to treat with them and to 
legislative for their betterment. And doing so would not 
violate principles of equal protection.
    So yes, there is certainly no equal protection bar, in my 
view, to S. 1011. And in terms of whether Native Hawaiians are 
distinct enough an Indian group to recognize them, whether they 
constitute a tribe under the Constitution, I think the answer 
there is also clear, and that is in the affirmative.
    Senator Akaka. Thank you very much for your responses.
    I would like to conclude the questions by giving each of 
you on the panel a chance to make any further comments about 
the bill or even comments referring to other parts of the 
testimonies that have been given here. So let me just ask each 
of you for any further comments. We will start in order.
    Ms. Apoliona. Well, we can go reverse order, Senator, that 
is fine.
    [Laughter.]
    Ms. Apoliona. Because then I will end. Go ahead, Robin. Do 
you want to start?
    Ms. Danner. I guess my closing remark would be that it has 
been a 10-year journey. I would like to thank the Senate 
Committee on Indian Affairs for over the years continuing to 
move this legislation forward under its jurisdiction. I would 
like to thank you, Senator Akaka, for moving it. As I started 
my testimony in the beginning, this is likely, from a 
community-based organization perspective, likely the single 
most important public policy piece of legislation for Hawaiians 
today and for generations to come.
    So thank you very much, and I would like to pass to 
Christopher.
    Senator Akaka. Mr. Bartolomucci.
    Mr. Bartolomucci. Just to elaborate on something I 
addressed in my opening statement about the definition of the 
term Native Hawaiian in the bill. To be clear, this bill does 
not establish the definition of Native Hawaiian that will limit 
who may be a member of the Native Hawaiian tribe, if you will. 
It will be up to the Native Hawaiian people to decide what the 
membership criteria are and who qualifies for membership in the 
tribe.
    This bill simply sets in process, sets in motion the 
process of getting to that point. So there must be an initial 
definition, a broad initial definition to determine who may 
participate in creating the criteria for the interim governing 
council and vote for that council, which will in turn establish 
organic documents and permit elections for future leadership.
    So the initial definition is broad, but that is clearly by 
design, it is meant to be inclusive. But it doesn't dictate the 
criteria for membership ultimately in the tribe of Native 
Hawaiians. I think that is important to keep in mind in 
assessing a possible objection that the definition is too 
broad.
    Thank you, Mr. Chairman.
    Thank you.
    Chairman Kane.
    Mr. Kane. Senator Akaka, I would like to just take my time 
to thank you for the support you have given us to bring this 
issue to this Committee. I would like to also extend that 
gratitude to Senator Inouye as well as Senator Murkowski, who 
has been a longstanding supporter with us in this effort.
    And also I want to thank the members of this panel, because 
it clarified even for myself more clearly how this is not only 
right, but it is righteous. And while this has been a long 
journey for us, I think we said close to 10 years now, I think 
we are at a point where it is pono, it is right. I look forward 
to continuing this dialogue in a very expeditious and good way.
    Mahalo.
    Senator Akaka. Mahalo. Thank you.
    Professor Benjamin.
    Mr. Benjamin. Many things I could say, I would just pick up 
on one point about the definition. As I noted in my testimony, 
of course this is just the definition of who gets to decide. 
The question is, do you want to leave open that group of who 
gets to decide to the possibility that it is this very, very 
broad, somewhat inchoate group that would include people from 
all 50 States?
    My suggestion would be that leaving it open to that group 
raises the greater possibility of a challenge that the group 
that has been included does not meaningfully constitute a 
tribe. The way to eliminate that is to have a narrower 
definition as to who gets to be included in the first place.
    Senator Akaka. Thank you, Professor.
    Chairman Apoliona?
    Ms. Apoliona. [Phrase in native tongue.] Senator, 116 years 
ago, our Native Hawaiian government was ended. And I come today 
and have come today as one of the nine voices of the board of 
trustees speaking to what we believe to be our mission as the 
Office of Hawaiian Affairs to help to make right that past 
history.
    I see our role as bringing some correction, bringing some 
restoration to the government that was overthrown illegally as 
our Apology Bill has stated.
    As one of the nine voices of trustees of the Office of 
Hawaiian Affairs, we through our fiduciary and constitutional 
mandate firmly believe that S. 1011, H.R. 2314 must move 
forward. Because it provides, as I said, some opportunity to 
make the future better, to try to correct the past. The past is 
the past, much we cannot return to, but we can certainly learn 
from. As leaders move forward for the future, looking to unify 
our Hawaiian community for the greater well-being for the next 
generations to come, it is critical.
    So we thank you, Senator Akaka, and of course, Senator 
Inouye, our delegation, our representatives as well from the 
House, and all those Congressional leaders who have, who 
continue and who will support the passage of our Native 
Hawaiian Government Reorganization Act. With that passage, 
tremendous work will need to begin in organizing our community 
of Native Hawaiians in Hawaii and away from our shores. Because 
we have great Hawaiian leaders, even here on the East Coast, 
with the Hawaiian Civic Clubs.
    I thank you again for your kokua, your support, and your 
tenacity. Aloha.
    Senator Akaka. Aloha, and mahalo nui loa to all. Thank you 
very much.
    I want to thank all the witnesses for your testimony, 
especially those who have traveled to join us here today.
    In closing, the spirit of aloha and the spirit of love and 
compassion is the legacy of the Native Hawaiian people. It is a 
way of life for Native Hawaiians. Despite being marginalized 
and disenfranchised in their own homeland, it is a value they 
continue to share. Despite such challenges to their culture and 
cherished institutions, the Native Hawaiian people have 
endured.
    It is time Congress and our Nation take the next step with 
them in honoring their resilience and bring about meaningful 
healing through the enactment of S. 1011.
    My colleagues and I may wish to submit questions to our 
witnesses in response to your testimony provided today. For 
those not present to testify, the hearing record will be open 
until August 21st, 2009.
    So mahalo nui loa, thank you very much. This hearing is 
adjourned.
    [Whereupon, at 4:50 p.m., the hearing was adjourned.]
                            A P P E N D I X

    Prepared Statement of Hon. Tom A. Coburn, MD, U.S. Senator from 
                                Oklahoma
    Chairman Dorgan, Dr. Barrasso, I want to thank you for this 
opportunity to express my opposition to S. 1011, the Native Hawaiian 
Reorganization Act of 2009, which was recently agreed to by the 
Committee.
    I appreciate the Committee's support for my amendment to S. 1703. 
However, I regret that I was unable to stay for the remainder of the 
Committee Business Meeting when S. 1011 was considered due to other 
responsibilities. Had I been able to stay, I would have made clear my 
firm opposition to this bill.
    Recognizing Native Hawaiians as an Indian tribe and sovereign 
entity without participating in the standard federal recognition 
process sets a dangerous precedent, threatens the framework of our 
nation, and, above all, is unconstitutional.
    While S. 1011 was passed in my absence and was considered unanimous 
by some, I ask that the record clearly reflect my full and firm 
opposition to S. 1011.
    As my colleagues on this committee know, this bill has been around 
for some time. While it has appeared in various forms, and been amended 
on several occasions, I do not believe it will ever meet the one test 
that matters most--Is it constitutional?
    I have many concerns with this bill, and will address those 
concerns in documents I will officially submit for the record; however, 
I would like to focus my many comments today on the constitutional 
question that underpins this entire effort
Is the bill Constitutional?
    Section 2 of this bill reads: ``Congress finds that--(1) the 
Constitution vests Congress with the authority to address the 
conditions of the indigenous, native people of the United States;''
    Section 4 reads, in part: ``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.''
    Since it is the only provision of our Constitution specifically 
mentioned in the bill, I think it is important we all read Article I, 
Section 8, Clause 3: ``Congress shall have Power . . . To regulate 
Commerce with foreign Nations, and among the several States, and with 
the Indian Tribes;''
    In other words, this entire bill rests upon the ability of Congress 
to regulate commerce with Indian tribes.
    Supporters of this bill will argue that ``Indian tribes'' also 
refers to ``indigenous peoples.'' I adamantly disagree with that 
interpretation, and while each individual member will have to decide 
this issue based on their reading of the Constitution and their Oath, I 
believe the historical record is clear.
    I intend to submit for the record volumes of information I think 
will make this point clear. In the meantime, we should examine the 
words and statements of the bill's most ardent supporters on this 
essential question:
    In 1998, the State of Hawaii (now one of the strongest supporters 
of the bill--expending considerable resources) had this to say in a 
brief before the US Supreme Court: ``the tribal concept simply has no 
place in the context of Hawaiian history.'' \1\
---------------------------------------------------------------------------
    \1\ Brief in Opposition to Petition for Writ of Certiorari at p 18, 
Rice v. Cayetano, 528 US 495 (2000).
---------------------------------------------------------------------------
    Senator Inouye--one of the most respected men to ever serve on the 
Indian Affairs committee--had this to say: ``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.''
    Senator Inouye went on to say: ``. . . 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.'' \2\
---------------------------------------------------------------------------
    \2\ Inouye, Senator Daniel, ``Statement on Introduced Bills and 
Resolutions.'' January 25, 2005.
---------------------------------------------------------------------------
    In other words, the very foundation on which this bill is based--
Congress' ability to regulate commerce among Indian tribes--is highly 
questionable.
    On the one hand, the authors of this bill claims that Native 
Hawaiians are an ``Indian tribe'' as a basis for Constitutional 
authority, and on the other hand, claim it is in fact NOT an ``Indian 
tribe'' for purposes of Indian law.
    If the statements of the bill's supporters are accurate, it is not 
even clear whether our committee has proper jurisdiction to review this 
bill.
There simply is no comparison to Indian tribes, or even to Alaska 
        Native Corporations.
    This bill does not restore ``tribal status'' where it once existed; 
It creates an entirely new government based solely on race. The Kingdom 
of Hawaii was a diverse society and government (much like the state 
today). The new ``tribe'' will not reflect that tradition and will 
create a government just for those deemed ``indigenous.''
    Unlike the many Indian tribes in my state whose governments were 
subsequently terminated, no such history exists for a Native Hawaiian 
entity.
    American Indians were not even formally given full citizenship 
until 1924. \3\ In contrast, Native Hawaiians became citizens of this 
country in 1900, twenty four years earlier. \4\ Native Hawaiians took 
part in the referendum that brought Hawaii into the Union as a state, 
and as one government.
---------------------------------------------------------------------------
    \3\ http://memory.loc.gov/ammem/today/jun02.html
    \4\ http://www.capitol.hawaii.gov/hrscurrent/Vol01_Ch0001-0042F/03-
ORG/ORG_0004.HTM
---------------------------------------------------------------------------
    In Oklahoma, and even in Alaska, there were distinct tribal 
populations with existing governments at the time of statehood. That 
was not the case in Hawaii. In Alaska, distinct tribal communities 
existed at the time of statehood and were addressed in that state's 
organic documents. Again, that is not the case in Hawaii.
What is the solution?
    If the Native Hawaiians are entitled to sovereign tribal government 
status, as this bill presupposes, the solution is quite simple.
    As my colleagues on this committee know well, the Federal 
Government already has in place an established and rigorous seven step 
process for recognition of tribal governments. This review is handled 
by the Office of Federal Acknowledgement (OFA).
    This process is applied evenly to all who apply, and takes politics 
out of the equation.
    This Committee should take the supporters of Native Hawaiian 
governmental recognition at their word. If they are indeed a tribal 
government with historic ties to the Federal Government, and who has 
continued to exercise continuous governmental authority after a any 
termination, a Native Hawaiian entity should submit an application to 
OFA.
The Legislative Process
    It is my hope the Committee will hold additional hearings to hear 
the concerns of the bill's opponents. While I mean no disrespect to the 
panel before us today, it is clear that most strongly favor the 
creation of a separate Native Hawaiian government.
    In contrast there are dozens of senators, including me, who believe 
this bill is a violation of our oath to the Constitution and a major 
affront to the Indian tribes in our states who have labored to regain 
their rightful recognition.
    The road ahead for this bill will not be an easy one. I, along with 
many of our colleagues, will never give consent to moving forward on 
this bill.
    If, as rumored, an attempt is made to attach this bill to an 
appropriations bill in the future, again many of us will vigorously 
fight to defeat it.
    I look forward to our continued conversation on this bill, and 
thank the Chairman and Dr. Barrasso for their willingness to consider 
my very serious concerns.
                                 ______
                                 
    Prepared Statement of Steven Joseph Gunn, Attorney and Adjunct 
          Professor of Law, Washington University in St. Louis



                                 ______
                                 
Prepared Statement of Hon. Maui Loa, Chief, Hou Band of native Hawaiian 
                     Indians of the Blood of Hawaii
    Is it known by the honorable senators sitting on this Indian 
Affairs committee and staff that the majority population of Hawaii at 
the time of statehood was Asian American? Senator Akaka and Senator 
Inouye are Asian Americans. They are as much natives of Hawaii as this 
bill is: which is to say not at all. This so called ``Native'' 
``Hawaiian'' gibberish is not an Indian bill. It does not belong in 
this committee. It does not belong in any committee unless there is a 
committee wherein to codify Asian Americans continuing to loot the 
federal treasury by coming up with schemes to use us, the actual native 
recognized in our small numbers by this congress since 1921.
    Another Asian American senator, Hiram Fong, inserted the very same 
phony alleged Asian American posing as a ``Native'' of the U.S. in 
Public Law 93-644 into Native American appropriations. That led to 
three U.S. Supreme Court rulings finding that the scheme being promoted 
today is a made up, unconstitutional scheme. Will it take three more 
U.S. Supreme Court rulings to finish off this fraudulent scheme for 
good?
    Hawaii's dishonorable, lying Asian American senators are joined in 
this scheme in the congress by delegates from actually insular 
territories. Hawaii hasn't been an insular territory so has had no 
insular minorities since 1959. Alaska joins them as well even though 
Ted Stevens, Senator Inouye's partner in the Alaskan Native Corp. 
scheme, was driven out of the Senate involving corruption in the 
Alaskan Native Corporation scheme.
    Hawaii's Asian American majority population at the same time as it 
is promoting made up gibberish like this bill continues to steal my 
land and my people's land. Hawaii's Asian American majority population 
since I first established my people as eligible for federal Native 
American assistance has looted around 23 billion dollars in U.S. Native 
American funds: they figure if the U.S. was stupid enough to let them 
get away with it up to now the U.S. is stupid enough to give them the 
legal cover of this bill to continue to get away with it. This entire 
matter belongs in a criminal court, not a committee in congress because 
this is a legal matter, not a political one: Shame on this committee. 
Here is the same testimony the actual native's only voice in congress 
from Hawaii made in the hearings of Public Law 93-644 when Senator 
Inouye and Senator Fong hatched the very same plot this hearing is a 
sorry recent chapter in:

        ``Fong's catch-all definition adopted by the rules and 
        regulations committee governing Native American programs 
        contains no protective provisions for indigenous Hawaiians ( 
        i.e. the ``classic'') as defined in the Hawaiian Homestead Act 
        of 1920.''
Attachment



                                 ______
                                 
  Prepared Statement of Mark Van Norman, Member, Cheyenne River Sioux 
                    Tribe (Lakota) of South Dakota 



                                 ______
                                 
Prepared Statement of Stephen Kaaa, President, Native Hawaiian Chamber 
                              of Commerce



                                 ______
                                 
    Prepared Statement of H. William Burgess, Founder, Aloha for All



                                 ______
                                 
              Prepared Statement of James I. Kuroiwa, Jr.



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



                                 ______
                                 
                Prepared Statement of Michael W. Gibson



                                 ______
                                 
                  Prepared Statement of Shelby Foster


                                 ______
                                 
                  Prepared Statement of Toby M. Kravet



                                 ______
                                 
                     Prepared Statement of Zuri Aki



                                 ______
                                 
                  Prepared Statement of Garry P. Smith


                                 ______
                                 
                   Prepared Statement of Earl Arakaki


                                 ______
                                 
  Response to Written Questions Submitted by Hon. Byron L. Dorgan to 
                      H. Christopher Bartolomucci



    ***Response to the following written questions was not available at 
the time this hearing went to press.***
        Written Questions Submitted by Hon. Byron L. Dorgan to 
                            Hon. Sam Hirsch



        Written Questions Submitted by Hon. Byron L. Dorgan to 
                           Stuart M. Benjamin



    The June 7, 2006 Legislative Notice on S. 147 and the Brief Amicus 
Curiae of Pacific Legal Foundation, The Cato Institute, and the Center 
for Equal Opportunity in Support of Petitioners--Docket No. 07-1372 
have been retained in Committee files and can be found at:

        http://rpc.senate.gov/public/_files/L40S147NatHawJune706SD.pdf

        http://www.cato.org/pubs/legalbriefs/Hawaii_v_OHA.pdf

                                  
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