[Congressional Record Volume 152, Number 67 (Thursday, May 25, 2006)]
[Senate]
[Pages S5213-S5216]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 DISSENT TO THE UNITED STATES COMMISSION ON CIVIL RIGHTS REPORT ON S. 
                                  147

  Mr. AKAKA. Mr. President, I rise today to share information about S. 
147, the Native Hawaiian Government Reorganization Act of 2005. Some of 
my colleagues have made reference to a recent report issued by the U.S. 
Commission on Civil Rights which characterizes my bill as race-based 
legislation. The report itself, however, does not contain any 
substantive analysis. Rather, it outlines the testimony that was 
presented to the commission.
  I have already shared with my colleagues my dismay and displeasure 
with the manner in which the Commission considered S. 147. Not once did 
they contact the Hawaii Advisory Committee to the Commission, which is 
composed of experts on Hawaii's history, Federal Indian Law, and 
Federal policies toward indigenous peoples. In addition, during the 
briefing upon which this report is based, it was clear that certain 
Commissioners lacked a general understanding of Federal Indian law, a 
necessary context to understand the existing political and legal 
relationship between native Hawaiians and the United States.
  Commissioner Michael Yaki understood both the history of Hawaii and 
Federal Indian Law and he, along with Commissioner Arlen Melendez, 
dissented from the Commission's position that S. 147 is race-based 
legislation. I ask unanimous consent that Commissioner Yaki's dissent 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               Dissenting Statement of Commissioner Yaki


              Commissioner Melendez concurs in the dissent

     PREFACE
       As a person quite possibly with native Hawaiian blood 
     running through his veins, it is quite possible to say that I 
     cannot possibly be impartial when it comes to this issue. 
     And, in truth, that may indeed be the fact. Nevertheless, 
     even before my substantive objections are made known, from a 
     process angle there were serious and substantial flaws in the 
     methodology underlying the report.
       First, the report relies upon a briefing from a grand total 
     of 4 individuals, on an issue that has previously relied upon 
     months of research and fact gathering that has led to 2 State 
     Advisory Commission reports, 1 Department of Justice Report, 
     and Congressional action (the ``Apology Resolution''), not to 
     mention testimony before the Congress on the NHGRA bill 
     itself that was never incorporated into the record.
       The paucity of evidence adduced is hardly the stuff upon 
     which to make recommendations or findings. Even though the 
     Commission, to its credit, stripped the report of all its 
     findings for its final version, does that not itself lend 
     strength and credence to the suggestion that the briefing was 
     flawed from the inception? And if so flawed, how can the 
     Commission opine so strongly upon a record that it could not 
     even find supported now non-existent findings?
       Second, aside from ignoring the volumes of research and 
     testimony that lie elsewhere and easily available to the 
     Commission, we ignored soliciting advice and comment from our 
     own State Advisory Commission of Hawai'i. Over the past two 
     decades, the Hawai`i Advisory Committee to the United States 
     Commission on Civil Rights (HISAC) has examined issues 
     relating to federal and state

[[Page S5214]]

     relations with Native Hawaiians. As early as 1991, HISAC 
     recommended legislation confirming federal recognition of 
     Native Hawaiians. A mere five years ago, the HISAC found that 
     ``the lack of federal recognition for native Hawaiians 
     appears to constitute a clear case of discrimination among 
     the native peoples found within the borders of this nation.'' 
     The HISAC concluded ``[a]bsent explicit recognition of a 
     Native Hawaiian governing entity, or at least a process for 
     ultimate recognition thereof, it is clear that the civil and 
     political rights of Native Hawaiians will continue to 
     erode.'' The HISAC found that ``the denial of Native Hawaiian 
     self-determination and self-governance to be a serious 
     erosion of this group's equal protection and human rights.'' 
     Echoing recommendations by the United States Departments of 
     Justice and Interior, the HISAC ``strongly recommend[ed]'' 
     that the federal government ``accelerate efforts to formalize 
     the political relationship between Native Hawaiians and the 
     United States.'' The HISAC's long-standing position of 
     support for legislation like S. 147 to protect the civil 
     rights of native Hawaiians belies recent assertions that such 
     legislation discriminates on the basis of race and causes 
     further racial divide.
       The HISAC could and would have been a key source of 
     information, especially updated information, on the state of 
     the record. To exclude them from the dialogue I believe was 
     indefensible and a deliberate attempt to ensure that contrary 
     views were not introduced into the record.
       Third, the report as it stands now makes no sense. The lack 
     of findings, the lack of any factual analysis, now makes the 
     report the proverbial Emperor without clothes. The conclusion 
     of the Commission stands without support, without backing, 
     and will be looked upon, I believe, as irrelevant to the 
     debate. Such if the risk one runs when scholarship and 
     balance are lacking.
       Substantively, the recommendation of the Commission, cannot 
     stand either. It is not based on facts about the political 
     status of indigenous, Native Hawaiians, nor Native Hawaiian 
     history and governance or facts about existing U.S. policy 
     and law concerning Native Hawaiians. It is a misguided 
     attempt to start a new and destructive precedent in U.S. 
     policy toward Native Americans. The USCCR recommendation 
     disregards the U.S. Constitution that specifically addresses 
     the political relationship between the U.S. and the nations 
     of Native Americans. The USCCR disregarded facts when the 
     choice was made not to include HISAC in the January 2006 
     briefing on NHGRA, and not utilizing the past relevant HISAC 
     reports concerning Native Hawaiians based on significant 
     public hearing and facts. Spring-boarding from trick phrasing 
     and spins offered by ill informed experts, and at least one 
     who has filed suit to end Native Hawaiian programs 
     established through Congress and state constitution, the 
     USCCR majority recommendation is an obvious attempt to treat 
     Native Hawaiians unfairly in order to begin the process of 
     destroying existing U.S. policy towards Native Americans.


   Facts About Indigenous Native Hawaiians, Native Hawaiian and U.S. 
history and the distinct Native Hawaiian indigenous political community 
                                 today

       Native Hawaiians are the indigenous people of Hawai`i, just 
     as American Indians and Alaska Natives are the indigenous 
     peoples of the remaining 49 states. Hawai`i is the homeland 
     of Native Hawaiians. Over 1200 years prior to the arrival of 
     European explorer James Cook on the Hawaiian islands, Native 
     Hawaiians self-determined their form of governance, culture, 
     way of life, priorities and economic system to cherish and 
     protect their homelands, of which they are physically and 
     spiritually a part, and did so continuously until the illegal 
     overthrow of their government by agents and citizens of the 
     U.S. government in 1893. In fact the U.S. engaged in several 
     treaties and conventions with the Native Hawaiian government, 
     including 1826, 1842, 1849, 1875 and 1887.
       Though deprived of their inherent rights to self-
     determination as a direct result of the illegal overthrow, 
     coupled with subsequent efforts to terminate Native Hawaiian 
     language, leaders, institutions and government functions, 
     Native Hawaiians persevered as best they could to perpetuate 
     the distinct vestiges of their culture, institutions, 
     homelands and government functions maintaining a distinct 
     community, recognizable to each other.
       Today, those living in Hawai'i recognize these aspects of 
     the distinct, functioning Native Hawaiian political community 
     easily. For example: the Royal Benevolent Societies 
     established by Ali'i (Native Hawaiian chiefs and monarchs) 
     continue to maintain certain Native Hawaiian government 
     assigned and cultural functions; the private Ali'i Trusts, 
     such as Kamehameha Schools, Queen Lili`uokalani Trust, Queen 
     Emma Foundation and Lunalilo Home, joined by state government 
     entities established for indigenous Hawaiians, including the 
     Office of Hawaiian Affairs and the Department of Hawaiian 
     Homelands, and Native Hawaiian Serving institutions such as 
     Alu Like, Inc. and Queen Lili`uokalani Children's Center 
     continue the Native Hawaiian government functions of caring 
     for Native Hawaiian health, orphans and families, education, 
     elders, housing economic development, governance, community 
     wide communication and culture and arts; the resurgence of 
     teaching and perpetuation of Native Hawaiian language and 
     other cultural traditions; Native Hawaiian civic 
     participation in matters important to the Native Hawaiian 
     community are conducted extensively through Native Hawaiian 
     organizations including, the Association of Hawaiian Civic 
     Clubs, the State Council of Hawaiian Homestead Associations, 
     the Council for Native Hawaiian Advancement, Ka Lahui and 
     various small groups pursuing independence; Native Hawaiian 
     family reunions where extended family members, young and old, 
     gather to talk, eat, pass on family stories and history, 
     sometimes sing and play Hawaiian music and dance hula and 
     pass on genealogy.
       Indeed, if the briefing had been as consultative with the 
     HISAC as it could have been, there would have been testimony 
     that, for example, the Royal Order of Kamehameha, or the Hale 
     O Na Ali`I O Hawai`i, or the Daughters of Ka`ahumanu continue 
     to operate under principles consistent with the law of the 
     former Kingdom of Hawai`i. There would have been testimony 
     that these groups went ``underground'' due to persecution but 
     remained very much alive during that time.
       The distinct indigenous, political community of Native 
     Hawaiians is recognized by Congress in over 150 pieces of 
     legislation, including the Hawaiian Homes Commission Act and 
     the conditions of statehood. Native Hawaiians are recognized 
     as a distinct indigenous, political community by voters of 
     Hawai`i, as expressed in the Hawai`i State Constitution.
       The notion introduced by opponents to the NHGRA that the 
     Native Hawaiians don't ``fit'' Federal Regulations governing 
     recognition of Native American tribes because they lacked a 
     distinct political identity or continuous functional and 
     separate government would ignore all manifestations of such 
     identity, existence, and recognition noted above.


              The NHGRA does not set new precedent in U.S.

       The Native Hawaiian Government Reorganization Act of 2005 
     (NHGRA) is in fact a measure to establish fairness in U.S. 
     policy towards the 3 groups of Native Americans of the 50 
     United States, American Indians, Alaska Natives and Native 
     Hawaiians. The U.S. already provides American Indians and 
     Alaska Natives access to a process of federal recognition, 
     and the NHGRA does the same for Native Hawaiians based on the 
     same Constitutional and statutory standing.

         I. Legal Authorities Establishing OHA! Purpose of OHA

       Hawai'i became the 50th State in the union in 1959 pursuant 
     to Pub. L. No. 86-3, 73 Stat. 5 (``Admission Act''). Under 
     this federal law, the United States granted the nascent state 
     title to all public lands within the state, except for some 
     lands reserved for use by the federal Government. These lands 
     (``public lands trust'') ``together with the proceeds from 
     the sale or other disposition of any such lands and the 
     income therefrom, shall be held by [the State] as a public 
     trust for the support of the public schools, . . . the 
     conditions of native Hawaiians'' and other purposes.
       In 1978, the multicultural residents of Hawai'i voted to 
     amend its state Constitution to (1) establish the Office of 
     Hawaiian Affairs (``OHA'') to ``provide Hawaiians the right 
     to determine the priorities which will effectuate the 
     betterment of their condition and welfare and promote the 
     protection and preservation of the Hawaiian race, and . . . 
     [to] unite Hawaiians as a people;'' and (2) to establish the 
     public lands trust created by the Admission Act as a 
     constitutional obligation of the State of Hawaii to the 
     native people. The constitutional mandate for OHA was 
     implemented via the enactment of Chapter 10, Hawaii Revised 
     Statutes, in 1979. OHA's statutory purposes include 
     ``[a]ssessing the policies and practices of other agencies 
     impacting on native Hawaiians and Hawaiians,'' conducting 
     advocacy efforts for native Hawaiians and Hawaiians,'' 
     ``[a]pplying for, receiving, and disbursing, grants and 
     donations from all sources for native Hawaiian and Hawaiian 
     programs and services,'' and ``[s]erving as a vehicle for 
     reparations.'' OHA administers funds derived for the most 
     part from its statutory 20% share of revenues generated by 
     the use of the public lands trust.
       Several legal challenges to the existence of OHA based upon 
     the 14th Amendment to the United States Constitution have 
     been filed by various Plaintiffs, some of whom are 
     represented by Mr. Burgess. Mr. Burgess has thus far failed 
     to win the relief he has sought, including injunctive relief, 
     either in the United States District Court for the District 
     of Hawaii or the United States Court of Appeals for the Ninth 
     Circuit. The denial of injunctive relief to Mr. Burgess's 
     clients presents a powerful rebuttal to their claims that 
     OHA's administration of its constitutional and statutory 
     obligations to native Hawaiians and Hawaiians deprives all 
     Hawaii's citizens of equal protection of law.
       Mr. Burgess describes the ``driving force'' behind the 
     NHGRA as ``discrimination based upon ancestry''. Nothing 
     could be further from the truth or more illogical. The 
     ``driving force'' behind the creation and passage of NHGRA is 
     the desire of the Hawaiian people, and virtually every 
     political representative in the State of Hawaii to achieve 
     legal parity and federal recognition as with the other two 
     native indigenous peoples of America, namely American Indian 
     Nations and Native Alaskans. There is no constitutional 
     impediment to congressional federal recognition of the 
     Hawaiian people.
       Then-United States Solicitor John Roberts (now Chief 
     Justice Roberts) argued in his prior legal briefs to the 
     United States Supreme Court in Rice v. Cayetano: ``[t]he 
     Constitution, in short, gives Congress room to

[[Page S5215]]

     deal with the particular problems posed by the indigenous 
     people of Hawaii and, at least when legislation is in 
     furtherance of the obligation Congress has assumed to those 
     people, that legislation is no more racial in nature than 
     legislation attempting to honor the federal trust 
     responsibility to any other indigenous people.'' It is, in 
     sum, ``not racial at all.''
       Roberts went on to say: Congress is constitutionally 
     empowered to deal with Hawaiians, has recognized such a 
     ``special relationship,'' and--``[i]n recognition of th[at] 
     special relationship''--has extended to Native Hawaiians the 
     same rights and privileges accorded to American Indian, 
     Alaska Native, Eskimo, and Aleut communities.'' 20 U.S.C. 
     Sec. 7902(13) (emphasis added). As such, Congress has 
     established with Hawaiians the same type of ``unique legal 
     relationship'' that exists with respect to the Indian tribes 
     who enjoy the ``same rights and privileges'' accorded 
     Hawaiians under these laws. 42 U.S.C. Sec. 11701(19). That 
     unique legal or political status--not recognition of 
     ``tribal'' status, under the latest executive transmutation 
     of what that means--is the touchstone for application of 
     Mancari when, as here, Congress is constitutionally empowered 
     to treat an indigenous group as such.


   NHGRA is a matter of indigenous political status and relationship 
 between the U.S. and the Native Hawaiian government. and not a racial 
                                matter.

       Under the U.S. Constitution and Federal law, America's 
     indigenous, native people are recognized as groups that are 
     NOT defined by race or ethnicity, but by the fact that their 
     indigenous, native ancestors exercised sovereignty over the 
     lands and areas that subsequently became part of the United 
     States. It is the pre-existing sovereignty, sovereignty that 
     pre-existed the formation of the United States which the U.S. 
     Constitution recognizes and on that basis, accords a special 
     status to America's indigenous, native people.
       The tortured attempts by persons such as Mr. Burgess to 
     distinguish Native Hawaiians from Native Americans ultimately 
     fail by simple historical comparison. Like the Native 
     Americans, the Native Hawaiians pre-dated the establishment 
     of the United States. Like the Native Americans, the Native 
     Hawaiians had their own culture, form of government, and 
     distinct sense of identity. Like Native Americans, the United 
     States stripped them of the ownership of their land and 
     trampled over their sovereignty. The only distinction--one 
     without a difference--is that unlike the vast majority of 
     Native American tribes, the Native Hawaiians were not shipped 
     off, force-marched, and relocated to another area far from 
     their original homelands.
       It is somewhat disingenuous that the opponents of NHGRA are 
     suggesting that extending this same U.S. policy to Native 
     Hawaiians, the indigenous, native people of the 50th state 
     would lead to racial balkanization. There are over 560 
     federally recognized American Indian and Alaska Native 
     governing entities in 49 of 50 states, coexisting with all 
     peoples and federal, state and local governments. There is 
     absolutely NO evidence to support this notion, and seems to 
     be spread simply to instill unwarranted fear and opposition 
     to the NHGRA.


                        NHGRA is Constitutional

       In United States v. Lara, the Supreme Court held that 
     ``[t]he Constitution grants Congress broad general powers to 
     legislate in respect to Indian tribes powers that we have 
     consistently described as plenary and exclusive.'' In 1954, 
     Congress terminated the sovereignty of the Menominee Indian 
     Tribe in Wisconsin. In 1973, Congress exercised its 
     discretion, changed its mind, and enacted the Menominee 
     Restoration Act, which restored sovereignty to the Menominee 
     Tribe.
       NHGRA does little more than follow the precedent allowed by 
     Lara and exercised in the Menominee case. Reliance on federal 
     regulations as gospel ignores the fact that the plenary 
     authority of Congress has resulted in restoration of tribal 
     status, in the case of the Menominee, and the retroactive 
     restoration of tribal lands, as in the case of the Lytton 
     Band in California. The Attorney General of Hawaii, many 
     distinguished professors, and the American Bar Association 
     all firmly believe that Congress has the authority to 
     recognize Native Hawaiians.
       All that NHGRA seeks is parity in U.S. policies towards the 
     three indigenous, native people in the 50 states, American 
     Indians, Alaska Natives and Native Hawaiians. Under the U.S. 
     Constitution and Federal law, America's indigenous, native 
     people are recognized as groups that are not defined by race 
     or ethnicity, but by the fact that their indigenous, native 
     ancestors, exercised sovereignty over the lands and areas 
     that subsequently became part of the United States. It is the 
     pre-existing sovereignty, sovereignty that pre-existed the 
     formation of the United States which the U.S. Constitution 
     recognizes and on that basis, accords a special status to 
     America's indigenous, native people.
       If one accepts the Commission's pronouncement against 
     subdividing the country into ``discrete subgroups accorded 
     varying degrees of privilege,'' then the Commission should 
     immediately call for an end to any recognition of additional 
     Indian tribes. Since that would clearly contravene the 
     Constitutional authority of Congress, that would seem to be 
     an unlikely--and illegal--outcome. Given that the authority 
     for NHGRA stems from the same constitutional source as that 
     for Native Americans, then the Commission majority has chosen 
     to ignore the constitutionality of the proposed law.


 NHGRA has the support of the residents of Hawai`i as reflected in two 
 scientific polls, the fact that the majority of officials elected by 
                  the voters of Hawai`i support NHGRA

       The results of a scientific poll in Hawaii showed 68 
     percent of those surveyed support the bill. The statewide 
     poll was taken Aug. 15-18 by Ward Research, a local public 
     opinion firm. The results are consistent with a 2003 poll. 
     While polls alone do not a mandate make, the consistency 
     between the two polls shows that despite the best efforts of 
     opponents such as Mr. Burgess, the multicultural, multiethnic 
     residents of Hawaii support the recognition of Native 
     Hawaiians and allowing them to take the first, tentative, 
     steps toward recognition and sovereignty.
       More importantly, the elected officials of Hawaii have 
     almost unanimously thrown their support to the NHGRA. The 
     NHGRA is supported by most of the elected officials of 
     Hawai`i, including the entire Hawai`i Congressional 
     Delegation, Governor Linda Lingle, the Senate and House of 
     the State Legislature (except two members), all 9 Trustees of 
     the Office of Hawaiian Affairs and the mayors of all four 
     counties of Hawai`i.

                               Conclusion

       The NHGRA is about justice. It is about righting a wrong. 
     It is about recognition of the identity and sovereignty of a 
     people who survived attempts by our government to strip them 
     of these precious rights over a hundred years ago. Far from 
     the racial balkanization spread by its opponents, NHGRA is 
     simply a step--a baby step at that--towards potential limited 
     sovereignty and self-governance.
       Most who live in Hawai`i know the distinct Native Hawaiian 
     community, with its own language and culture, is the heart 
     and breath of Hawai`i. Hawai`i, and no other place on earth, 
     is the homeland of Native Hawaiians.
       On one thing the proponents and opponents of NHGRA seem to 
     agree: Hawai`i is a special place in these United States, a 
     multicultural society and model for racial and ethnic harmony 
     that is unlike anywhere else in our country and, 
     increasingly, the world. It is also a place where its 
     multicultural residents recognize the indigenous Native 
     Hawaiian culture as the host culture with a special 
     indigenous political status where there are state holidays 
     acknowledging Native Hawaiian monarchs, and the Hawaiian 
     language is officially recognized.
       Perhaps it is the ``mainlanders'' lack of context and 
     experience that creates a debate where, in Hawai`i, there is 
     practically none. In the mainland, we think of ``Aloha'' as 
     Hawaii Five-O, surfing, and brightly colored shirts that 
     remain tucked away in the back of our closets. In Hawai`i, 
     however, Aloha and the Aloha spirit is more than just a 
     slogan. It is proof positive of the influence and power of 
     the Native Hawaiian people and culture that exists and 
     thrives today. In my lifetime, I have seen growing awareness, 
     acceptance and usage of Hawaiian culture, symbols, and 
     language. It is now almost mandatory to use pronunciation 
     symbols whenever Hawaiian words are printed, whereas twenty 
     years ago it was ignored. Multiculturalism in modern Hawai`i 
     means that non-Native Hawaiians respect and honor the 
     traditions of a people who settles on these volcanic 
     paradises after braving thousands of miles of open ocean. The 
     least we can do, the ``we'' being the American government 
     which took away their islands, is to accord them the basic 
     respect, recognition, and privileges we do all indigenous 
     peoples of our nation. NHGRA will give meaning to the Apology 
     Resolution; it will begin the healing of wounds.
       That same aloha spirit that imbues the multicultural 
     islands of Hawai`i will, in my opinion, ensure that the 
     processes contained in NHGRA will inure to the benefit of all 
     the people of Hawaii. Perhaps more than any other place in 
     our Union, fears of racial polarization, discrimination, or 
     unequal treatment resulting from the passage of NHGRA should 
     be seen as distant as the stars which the Hawaiians used to 
     navigate their wa'a, their canoes, across the vastness of the 
     seas.

  Mr. INHOFE. Mr. President, I am submitting for inclusion in the 
Record a letter from the Congressional Budget Office providing cost 
estimates for two bills ordered reported from the Committee on 
Environment and Public Works on May 23, 2006 and reported without 
written report to the full Senate on May 24, 2006, S. 801 and S. 2650. 
I ask unanimous consent that the letter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                     May 24, 2006,
     Hon. James M. Inhofe, Chairman,
     Committee on Environment and Public Works, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: The Congressional Budget Office has 
     reviewed the following legislation, as ordered reported by 
     the Senate Committee on Environment and Public Works on May 
     23, 2006:
       S. 801, a bill to designate the United States courthouse 
     located at 300 North Hogan Street, Jacksonville, Florida, as 
     the ``John Milton Bryan Simpson United States Courthouse'';
       S. 2650, a bill to designate the Federal courthouse to be 
     constructed in Greenville,

[[Page S5216]]

     South Carolina, as the ``Carroll A. Campbell, Jr. Federal 
     Courthouse.''
       CBO estimates that enactment of these bills would have no 
     significant impact on the Federal budget and would not affect 
     direct spending or revenues. These bills contain no 
     intergovernmental or private-sector mandates as defined in 
     the Unfunded Mandates Reform Act and would impose no costs on 
     State, local, or tribal governments. If you wish further 
     details on this estimate, we will be pleased to provide them.
           Sincerely,
                                                 Donald B. Marron,
     Acting Director.

                          ____________________