[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
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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
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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\
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\2\ In a concurring opinion, Justices Breyer and Souter cast doubt
on the 1778-based lineal descendent rule as being too remote in time.
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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:
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\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