[Congressional Record Volume 152, Number 71 (Wednesday, June 7, 2006)]
[Senate]
[Pages S5554-S5591]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NATIVE HAWAIIAN GOVERNMENT REORGANIZATION ACT OF 2005--MOTION TO
PROCEED
The PRESIDING OFFICER. Under the previous order, the hour of 3 p.m.
having arrived, the Senate will proceed to consideration of the motion
to proceed to S. 147, which the clerk will report.
The assistant legislative clerk read as follows:
Motion to proceed to S. 147, a bill to express the policy
of the United States regarding the United States relationship
with Native Hawaiians and to provide a process for the
recognition by the United States of the Native Hawaiian
governing entity.
The PRESIDING OFFICER. Under the previous order, the time from 3 p.m.
until 6 p.m. shall be divided for debate as follows: 3 to 3:30,
majority control; 3:30 to 4, minority control, alternating between the
two sides every 30 minutes until 6 p.m.
The Senator from Tennessee is recognized.
Mr. ALEXANDER. Mr. President, one of the parliamentary mysteries of
the Senate is that we are now about to move, as was reported, to the
Native Hawaiian Government Reorganization Act. Some might wonder why. I
was presiding, as the Senator from Minnesota is now, earlier in the
week. I heard an eloquent speech by a Senator from the other side of
the aisle, the Senator from Vermont, who said we ought to ``focus on
solutions to the high [gasoline] prices, something that hurts people in
your state and mine, the rising cost of health care . . . the ongoing
situation in Iraq. . . . We're not going to talk about any of those
things,'' said the Senator from Vermont, from the other side of the
aisle.
Yet as a result of efforts there, on that side of the aisle, we are
now moving ahead to the Native Hawaiian Government Reorganization Act,
S. 147.
The legislation may seem insignificant, but I am here today to say
that, in this seemingly insignificant piece of legislation, is an
assault on one of the most important values in our country. It is a
value so important that it is carved in stone above the Chair of the
Presiding Officer. It is our original national motto: E Pluribus Unum,
one from many. This bill is an assault on that principle because it
would, for the first time in our country's history, so far as my
research shows, create a new, separate, sovereign government within our
country, based on race, putting us on the path of becoming more of a
United Nations than a United States of America. It will set a precedent
for the breakup of our country along racial lines, and it ought to be
soundly defeated.
No one has to take my word for this. The U.S. Commission on Civil
Rights, a body established to protect the rights of minorities and the
underprivileged, has publicly opposed this legislation. Here is what
the Commission on Civil Rights said:
The Commission recommends against passage of the Native
Hawaiian Government Reorganization Act of 2005 as reported
out of committee on May 16, 2005, or any other legislation
that would discriminate on the basis of race or national
origin and further subdivide the American people into
discrete subgroups, accorded varying degrees of privilege.
So this bill undermines our unity. It would undermine our history of
being a Nation based not upon race but upon common values of liberty,
equal opportunity, and democracy.
We have had many great accomplishments in our country. Our diversity
is a magnificent accomplishment. But the greater accomplishment,
greater even than our diversity, is our ability to unite all of that
diversity into one Nation. We should be going in that direction and not
in the opposite direction.
Our Constitution guarantees equal opportunity without regard to race.
This legislation does the opposite.
Those who favor this bill like to describe a bill that is not the
bill I have read. Those who favor the bill say it is not about
sovereignty, it is not about land and money, it is not about race, it
is what we did once in Alaska and that the Native Hawaiians would be
just another Indian tribe. It is a nice bill, they say. It is sponsored
by the two Senators from the State of Hawaii, whom we all greatly
respect and admire, so, they say, let's just pass it.
Let me address each of those claims one by one--sovereignty, to begin
with. Those who favor the bill say this is not about sovereignty. After
all, they argue, the new government that would be set up would be
subject to the approval of those who are ``Native Hawaiians,'' and it
would have to be approved by the U.S. Secretary of the Interior. But
the bill expressly states in section 4(b) that its purpose is to
establish a ``political and legal relationship between the United
States and the Native Hawaiian governing entity for the purposes of
continuing a government-to-government relationship.''
A government-to-government relationship--such as a government
relationship between the United States and France or England or Germany
or any other country. That sounds like a sovereign government to me.
That's not the end of it. In an interview on National Public Radio on
August 16 last year, the Senator from Hawaii, who is the sponsor of
this bill, was asked if this could lead to secession of the State of
Hawaii from the United States. The NPR reporter stated, ``But [Senator
Akaka] says this sovereignty could even go further, perhaps even
leading to independence.'' And the Senator from Hawaii responded,
``That could be. As far as what is going to happen at the other end,
I'm leaving it up to my grandchildren and my great-grandchildren.''
[[Page S5555]]
The office of Hawaiian Affairs, an office of the Government of the
State of Hawaii at one time said on its Web site that under this bill:
The Native Hawaiian people may exercise their right to
self-determination by selecting another form of government,
including free association or total independence.
Total independence, Mr. President. This bill clearly allows for the
establishment of a new, sovereign government within the United States
of America. I have not found another example of that in our history.
No. 2, those who favor the bill say this is not about race. But the
bill itself says something else. It says that anyone ``who is a direct
lineal descendant of the aboriginal, indigenous native people'' of
Hawaii is eligible to participate in creating this new sovereign
government. By this definition, anyone who may have had a seventh-
generation Native ancestor, making him 1/256 Native Hawaiian, can
qualify. They do not need to have been part of a Native Hawaiian
community at any point during their lifetime. They don't even need to
have lived in Hawaii. In fact, of the 400,000 Americans of Native
Hawaiian descent in the United States, approximately 160,000 don't even
live in Hawaii. They live all over the United States of America. But
they all would be eligible to be part of this new sovereign government
under the bill.
So eligibility to participate in this new government is not based on
where you live. It is not based on being part of a specific community.
It is based on your ancestry. That is why the U.S. Commission on Civil
Rights has specifically said the bill ``would discriminate on the basis
of race or national origin.''
No. 3, land and money. Those who favor the bill say it is not about
land and money, but the bill says something else. My staff counted 35
references to ``land'' or ``lands'' in the text of the bill, and in
section 8 of the bill it specifically delegates to this new race-based
government the authority to negotiate for:
(A) the transfer of lands, natural resources, and other
assets, and the protection of existing rights related to such
lands or resources;
(B) the exercise of governmental authority over any
transferred lands, natural resources, and any other assets,
including land use.
So the bill says this is about land and ``other assets.'' It is not
surprising. According to an Associated Press article from April 14 of
last year on this bill, ``there is a general belief the Department of
Hawaiian Home Lands would be folded into this new native government.
According to that department's Web site, ``Approximately 200,000 acres
of homestead lands are provided for the Hawaiian Home Lands program.''
That is from the Associated Press.
According to the Wall Street Journal, the state's Office of Hawaiian
Affairs controls a trust fund worth $3 billion for the benefit of
Native Hawaiians. One has to ask whether some or all of that $3 billion
would be given to this so-called tribe. The bill expressly allows the
transfer of land and assets, so this is a serious question.
Then the last two arguments the proponents make. They say that this
is similar to what we did for the Alaska Natives. But there are some
profound differences between Alaska and Hawaii. First, the history is
different. When the United States acquired Alaska from Russia, the
treaty stipulated we needed to deal with the Alaska Natives. And when
Alaska became a State, we included in the law that Alaska Natives would
have a special status. That is not true for Native Hawaiians. They have
always been part of the State and lived under its jurisdiction.
Second, the provisions in S. 147 for the recognition of a native
government are different from those for Alaska Natives. Alaska Natives
were recognized to form corporations and other local forms of
government, based largely on the village communities in which they
lived. Most Native Hawaiians don't live in separate villages or
communities in Hawaii and elsewhere in the United States. They are
everyone's next-door neighbor. Of the 240,000 Native Hawaiians living
in Hawaii, the U.S. Census reports that less than 20,000 live on
``Hawaiian homelands.'' The rest are mixed with the States' population.
Finally, there is another argument that those who support this bill
make. They say: We are just recognizing another Indian tribe. This puts
Native Hawaiians on an equal footing with other Native American groups.
That is their argument. But U.S. law has specific requirements for
recognition of an Indian tribe. A tribe must have operated as a
sovereign for the last 100 years, must be a separate and distinct
community, and must have had a preexisting political organization. That
is what the law says. Native Hawaiians do not meet those requirements.
In fact, in 1998 the State of Hawaii acknowledged this in a Supreme
Court brief in the case of Rice v. Cayetano, saying, ``the tribal
concept simply has no place in the context of Hawaiian history.'' It
would be difficult to argue that Hawaii was not well represented in
that debate because the current Chief Justice of the U.S. Supreme
Court, Justice Roberts, was the lawyer for the State of Hawaii in this
argument before the Supreme Court and they said, ``the tribal concept
simply has no place in the context of Hawaiian history.''
If the bill establishing a Native Hawaiian government would pass, it
would have the dubious honor to be the first to create a separate
nation within the United States. While Congress has recognized
preexisting American Indian tribes before, it has never created one.
That is the difference. Of course, we have recognized preexisting
American Indian tribes who meet a very specific definition of what an
Indian tribe is in our law. But so far as I can tell, we have never
created an Indian tribe, and the State of Hawaii itself recognized
before the Supreme Court that its native peoples are not a tribe.
To pass this legislation would be a dangerous precedent. It wouldn't
be much different than if American citizens who were descended from
Hispanics who lived in Texas before it became a Republic in 1836
created their own tribes based on claims these lands were improperly
seized from Mexico or it could open the door to religious groups such
as the Amish or Hasidic Jews who might seek tribal status to avoid the
constraints of the establishment clause of the Constitution. If we
start down this path, the end may be the disintegration of the United
States into ethnic enclaves.
Hawaiians are Americans. They became U.S. citizens in 1900. They have
saluted the American flag, paid American taxes, fought in American
wars. The distinguished Senator from Hawaii has won the Congressional
Medal of Honor fighting in American wars.
In 1959, 94 percent of Hawaiians reaffirmed that commitment to become
Americans by voting to become a State. Similar to citizens of every
other State, they vote in national elections.
Becoming an American has always meant giving up allegiance to your
previous country and pledging allegiance to your new country, the
United States of America.
This goes all the way back to Valley Forge when George Washington
himself signed such an oath, and his officers did as well.
Today, in this year, more than 500,000 new citizens will take that
oath where they renounce their allegiance to where they came from, not
because they are not proud of it but because they are prouder to be an
American. And they know if we are going to be one Nation in this land
of immigrants, they must become Americans.
All around the world, countries are struggling with how to integrate
and assimilate into their societies people from other countries:
Muslims in Europe, specifically in those countries, Turks in Germany,
Great Britain, France, and Italy--all are struggling with this. They
are envious of our two centuries of history of helping people from all
countries come here, learn a common language, understand a few
principles, and become Americans. They are proud of where we came from,
prouder of who we are.
This goes in exactly the opposite direction. This may seem like an
insignificant piece of legislation, but within it is embedded an
assault on one of the most important fundamental values in our country:
the value that is expressed and carved right there, ``E Pluribus
Unum,'' one from many.
This legislation would undermine our national unity by treating
Americans differently based on race. It would begin to destroy what is
most unique
[[Page S5556]]
about our country. It would begin to make us more of a ``united
nations'' instead of the United States of America.
I hope the Senate heeds the advice of the U.S. Commission on Civil
Rights and defeats this legislation, legislation which the commission
said ``would discriminate on the basis of race or national origin and
further subdivide the American people into discrete subgroups accorded
varying degrees of privilege'' and create a new, separate, race-based
government for those of Native Hawaiian descent.
I have tried in my remarks to show that this bill is about
sovereignty, that it is about land and money, that it is about race,
that it is not like what we did for Alaskans, that the Native Hawaiians
would not just be another Indian tribe. We don't create new tribes in
our country. We recognize preexisting ones, and we have very specific
provisions in the law about how we do that.
The question before us is about what it means to become an American.
And this bill is the reverse of what it means to be an American.
Instead of making us one Nation, indivisible, it divides us. Instead of
guaranteeing rights without regard to race, it makes them depend solely
upon race. Instead of becoming one from many, we would become many from
one.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. KYL. Mr. President, I ask unanimous consent that the order for
the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KYL. Mr. President, I rise today in strong opposition to the
Akaka bill. If cloture is invoked on that bill, there is a process by
which we will debate and amend the bill.
I would like to discuss with my colleagues today some of the
infirmities with the bill that we would hope to address through the
amendment process. There is no way to sugarcoat this bill.
This bill proposes that the Federal Government establish a racial
test for Americans who want to participate in the creation of a new
government--a government that will gain, according to section 8 of this
legislation, lands and natural resources, civil and criminal
jurisdiction, and governmental authority and powers. It is
unconstitutional, it offends basic notions of American values, and it
should be rejected.
I would like to spend a few minutes talking about an amendment that
we would be voting on should this bill be brought forward.
First, keep in mind that we are going to have to decide once and for
all if we believe in racial tests and race-based government. Government
anticipated by this bill is created through a racial test. Read section
3, subparagraph 10: Native Hawaiians, those eligible to participate in
the creation of this government, are defined ``as an individual who is
one of the indigenous, native peoples of Hawaii and who is a direct
lineal descendent of the aboriginal, indigenous, native people in the
Hawaiian islands on or before January 1, 1893, and exercised
sovereignty there, or a person who descends from one who was one-half
Native Hawaiian in 1921.''
What is that test? It is a racial test. As the Supreme Court
emphasized, ancestry is a proxy for race.
Some advocates insist that it is not a race-based government, no
matter what the actual language of the bill says.
So we will offer an amendment to put this question to the Senate.
The amendment will say that this new government will not have any
governmental powers if membership in the entity is in any way
determined by race or ancestry. The Senate will have a straightforward
up-or-down vote on whether it supports or rejects the principle of
race-based government. If I am wrong and the bill's text is wrong, and
this isn't about race, then that amendment will surely pass
overwhelmingly.
When I discussed this amendment with the bill's sponsors in the past,
they have said they would strongly oppose it. So we will let the Senate
vote directly and resolve the issue. All Senators should look forward
to a vote on whether they support race-based government.
Second, we will have to decide whether the Constitution and basic
civil rights are to be left to a negotiation process after the bill's
passage.
As I have explained previously, this bill would allow the creation of
a government not subject to the Constitution and Bill of Rights. It
could also be immune from the Civil Rights Act, the Americans with
Disabilities Act, the Age Discrimination in Employment Act, and all
other State and Federal civil rights laws. It would authorize creation
of an enclave where Native Hawaiians would be subject to a different
set of legal codes, taxes, and regulations.
Proponents deny this. They say it is preposterous to say that civil
rights won't be protected. They say the bill won't result in unequal
tax and legal systems in Hawaii. They say basic fairness would be
preserved. But then they say just how this happens is entirely up to
subsequent negotiations between the Native Hawaiian entity and
State and Federal bureaucrats.
Obviously, basic civil rights should not be up for negotiation. So we
will offer an amendment to clear this up. My civil rights amendment
will apply the entire Bill of Rights to the new government. It will
apply all Federal antidiscrimination laws. It will ensure that the new
government doesn't have any special immunities from lawsuits under
those laws.
It will prevent the creation of any racially defined liabilities, so
that no person is subject to any law, regulation, tax, or other
liability if any person is exempted on the basis of race or ancestry.
And it will guarantee fairness and equal treatment. It will not leave
these matters up to future ``negotiations.''
This civil rights amendment deserves a vote, and it will get one.
The New York Times editorialized today that the bill does not
``supersede the Constitution.'' I disagree, but we can resolve this.
So let's vote and not leave it up to chance. Let's adopt my amendment
and guarantee civil rights and equal treatment.
Again, I have shared the drafts of this amendment with the sponsors
of the bill who said they oppose it. Perhaps they will reconsider, but
the Senate will have an opportunity to vote on this amendment.
Third, there is a dispute over whether the people of Hawaii, who are
most personally affected by this legislation, actually want this bill.
The sponsors say yes, and point to opinion polls that speak vaguely of
``recognizing'' Native Hawaiians. I can point to alternative polls
which show strong majorities opposed when the citizens understand that
with recognition comes the potential for unequal treatment. Do the
Hawaiian people want this? We know much of the political establishment
does. But what about the citizens? I am concerned that this bill will
divide Hawaii and encourage racial division there and elsewhere.
Indeed, as the U.S. Commission on Civil Rights noted in its report,
if you listen to the citizens of Hawaii rather than just their
political leaders, it is clear that this legislation has already
divided that State. Why would the Senate want to impose a divisive
result upon the State of Hawaii without giving Senators a voice?
So one of my colleagues will offer an amendment that will give us the
answer to the question. It will simply require that all citizens of
Hawaii have a voice by requiring a statewide referendum once the
negotiations are complete.
The Senate should not be passing on the question of what is good for
Hawaii when we have evidence of such division.
Again, I have floated this idea by the bill's sponsors, and they have
opposed a referendum requirement. But why would they not want to ensure
that the people of Hawaii have a direct voice in approving or rejecting
the final product of the negotiations called for in the bill?
So we will have an amendment. The Senate can decide if the people of
Hawaii should be denied their opportunity to speak.
As I have said in the past, I will support a cloture vote and will
support the Senate having an opportunity to debate and vote on
amendments to this bill. But should cloture be accepted and the Senate
get on this bill, I have also
[[Page S5557]]
noted I strongly oppose it and will offer amendments to try to ensure
the result of the bill is most fair to the people of Hawaii. That I
will most surely do.
I look forward to that debate. I look forward to the debate and
amendments that will be offered as a result.
I yield the floor.
The PRESIDING OFFICER. At this time, the hour of 3:30 having arrived,
the next 30 minutes is under the control of the minority.
The Senator from North Dakota.
Mr. DORGAN. Mr. President, I expected my colleague from Arizona would
speak on the estate tax. He, in fact, spoke about the subject which we
will now spend the next 30 minutes on, on this side, the Native
Hawaiian Government Reorganization Act. He raises some questions, and
my expectation is that debate and discussion about this proposal will
promote some rather aggressive discussion in the Senate. That is fine.
It is nice at this point that after all these many years we are
debating this issue.
I will give a little bit of the history as vice chairman of the
Committee on Indian Affairs. That committee is the committee that
brought this legislation to the Senate. The action was bipartisan. We
have decided this is a worthy piece of legislation. I support it. The
committee supports it. That is the basis on which it is in the Senate
now.
I don't know the history nearly as well as my colleagues, Senator
Akaka and Senator Inouye, but let me describe a little of the history,
if I might. I know a bit of this because I represent a State in which
we have numerous Indian tribes. Those are the first Americans. Those
are the folks who were there before my ancestors showed up. They owned
the land. They farmed along the Missouri River. I understand something
about Indian tribes, tribal governments and self-determination. I
understand that because I work in that area a lot with the Indian
tribes from my State.
Let me describe the issue of aboriginal and indigenous peoples in the
United States, and especially in Hawaii, from the small amount of
history that I know. Again, the rich history here will be better
recited by my colleagues, Senator Inouye and Senator Akaka.
January 16, 1893--that is a long, long time ago--the United States
Minister John Stevens, who served, then, as Ambassador to the court of
Queen Liliuokalani, directed a marine company onboard the USS Boston to
arrest and detain the queen. This is the queen that served the
indigenous people in Hawaii. She was arrested. She was placed under
arrest for 9 months at the palace.
That event was engineered and orchestrated by the Committee of Public
Safety which I understand consisted of Hawaii's non-native Hawaii
businessmen, with the approval of Minister Stevens.
So we have a people in Hawaii who were the first Hawaiians, the
indigenous people to Hawaii, who had a government, who had a structure.
The head of that government was summarily arrested and a new government
was created in Hawaii. That new government apparently was a government
that would meet at the pleasure of those who engineered the arrest of
the queen.
Today, after many decades raising questions, should there not be an
opportunity for Native Hawaiians, very much as there has been an
opportunity in our country in what is called the lower 48 for Indian
tribes to seek reorganization, to seek reorganization--there should be
some opportunity along the way for there to be a Native Hawaiian
Government Reorganization Act. The reason this is a ``reorganization''
is because that government existed. This is not the creation of a new
government. This is a government that previously existed, but many
decades ago was essentially dissolved or destroyed as a governing unit
by the actions I previously described.
My colleagues have come to the Congress from the State of Hawaii and
have asked that a bill authorizing the reorganization of a Native
Hawaiian governing entity that could negotiate agreements with the
United States and the State of Hawaii to address a good number of
issues relating to self-determination and self-governance of the Native
Hawaiians be brought to the Senate and be considered and debated. That
is the basis on which it is here today.
Upon introduction last year by my colleagues from Hawaii, this bill
was referred to the Committee on Indian Affairs. We held a hearing on
the bill, received testimony that demonstrated broad bipartisan
support, strong support for this bill in Hawaii and also in Indian
country around America.
We heard from Governor Lingle from the State of Hawaii about the
importance of this bill to the people and to the economy of Hawaii. We
heard from Native Hawaiians about the significance of this bill on all
aspects of Native Hawaiian life. We heard from the National Congress of
American Indians about its long-standing support for Native Hawaiians
to be formally afforded the right to self-determination. This bill does
not by itself do that. It establishes the process for a reorganization
in order to create that structure.
There has been back and forth between interested parties on this
bill. There are some who have concerns and questions about it.
Significant efforts, I know, have been spent by my two colleagues,
Senator Akaka and Senator Inouye, to address concerns relating to
jurisdiction, claims and gaming issues. I believe these concerns in
almost all cases have been adequately resolved.
Even more importantly, I believe the Members of the Senate, finally,
deserve the opportunity, and my two colleagues from Hawaii deserve the
opportunity, to have this legislation before the Senate open for
discussion and open for debate.
Senator Akaka requested floor time for this bill 1 year ago. His
request was not granted because we were compelled to address other
imminent concerns relating to hurricane relief and other matters at
that time that were urgent.
Bills on this issue have been introduced since the 106th Congress.
None have received time for floor debate. Fairness, I believe, now
requires this Congress to offer this bill in the Senate for full
debate.
Let me finally say this. I know of no two Members of the Senate who
have worked harder, with greater determination to advance the cause in
their State that has broad bipartisan support in their State on behalf
of Native Hawaiians, a right that is already afforded to many other
aboriginal and indigenous peoples around the United States that has not
been afforded to those Native Hawaiians. I know of no one in this
Senate who has worked harder for an important issue of passion in their
hearts than Senator Akaka and Senator Inouye. I am very pleased that
the Senate Committee on Indian Affairs was able to pass this
legislation and bring it to the Senate today.
I yield the floor.
The PRESIDING OFFICER. The Senator from Hawaii.
Mr. AKAKA. Mr. President, today I discuss legislation that is
critically important to the people of Hawaii, all the people of Hawaii,
the Native Hawaiian Government Reorganization Act of 2005. While I am
pleased to see this bill finally come to the Senate floor after 6 long
years, I remain perplexed by the constant barrage of misinformation
that has been provided by opponents to this legislation.
Tomorrow we will be voting on a motion to invoke cloture on the
motion to proceed to S. 147, the Native Hawaiian Government
Reorganization Act of 2005. I ask all of my colleagues, to let this
bill come to the floor for a debate--whether you are for or against it.
At the minimum, we should be allowed to discuss what this bill is
really about.
I also want to alert my colleagues to the fact that a new substitute
amendment has been drafted which incorporates legislative language
negotiated between Senator Inouye and myself and officials from the
Executive Branch to address policy concerns regarding the liability of
the United States in land claims, the impact of the bill on military
readiness, gaming, and civil and criminal jurisdiction in Hawaii. While
I realize that we will not consider the substitute amendment until we
get to the actual consideration of the bill, I share this with my
colleagues so that they know that our negotiations with the
administration have been successful in addressing their concerns and
adhering to the intent and purpose of this bill.
This bill is about process and fairness. Hawaii's indigenous peoples,
Native Hawaiians, have been recognized
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as indigenous peoples by Congress through the one hundred sixty-plus
statutes we have enacted for Native Hawaiians. Congress has
historically treated Native Hawaiians, for more than a hundred years,
in a manner similar to American Indians and Alaska Natives. What our
bill does is to authorize a process so that the federal policy of self-
governance and self-determination, a policy formally extended to
American Indians and Alaska Natives, can be extended to Native
Hawaiians, thereby creating parity in the way the United States treats
its indigenous peoples.
We have bipartisan support for the enactment of this bill. I extend
my deep appreciation to the cosponsors of this legislation, Senators
Cantwell, Coleman, Dodd, Dorgan, Graham, Inouye, Murkowski, Smith, and
Stevens, for their unwavering support of our efforts.
I especially want to recognize Hawaii's Governor, Linda Lingle, who
serves as the first Republican governor in Hawaii in 40 years. Despite
our political differences, Governor Lingle and her cabinet, primarily
Attorney General Mark Bennett and Hawaiian Homes Commission Chairman
Micah Kane, have worked tirelessly with us for the past 4 years in an
effort to enact this bill for the people of Hawaii.
In Hawaii, support for the preservation and culture of Hawaii's
indigenous peoples is a nonpartisan issue. In Hawaii, diversity is
precious. The more we understand our culture, traditions, and heritage,
the more we can contribute to the fabric of society that has become the
local culture in Hawaii. While my opponents see diversity as a threat,
the people of Hawaii embrace diversity and celebrate it as a means of
understanding the foundations upon which our local culture, the culture
that brings us all together, is based.
Let me be the first to say that the people of Hawaii, including
Hawaii's indigenous peoples, are proud to be Americans. The many Native
Hawaiians in the National Guard who were away from their families for
eighteen months, serving in Operation Iraqi Freedom, are proud to be
American. In fact, it is a well-documented fact that native peoples
have the highest per capita rate of serving in our military to defend
our country. It is absolutely offensive to read opponents'
mischaracterization of this bill as an effort to secede from the United
States or to question the right of Hawaii's indigenous peoples to have
a mechanism of self-governance and self-determination within the
framework of Federal law.
This bill is of significant importance to the people of Hawaii. It is
significant because it provides a process, a structured process, for
the people of Hawaii to finally address longstanding issues resulting
from a dark period in Hawaii's history, the overthrow of the Kingdom of
Hawaii. The people of Hawaii are multicultural and we celebrate our
diversity. At the same time, we all share a common respect and desire
to preserve the culture and tradition of Hawaii's indigenous peoples,
Native Hawaiians.
Despite this perceived harmony, there are issues stemming from the
overthrow that we have not addressed due to apprehension over the
emotions that arise when these matters are discussed. I have mentioned
this to my colleagues previously, but it bears repeating that there has
been no structured process. Instead, there has been fear as to what the
discussion would entail, causing people to avoid the issues. Such
behavior has led to high levels of anger and frustration as well as
misunderstandings between Native Hawaiians and non-Native Hawaiians.
As a young child, I was discouraged from speaking Hawaiian because I
was told that it would not allow me to succeed in the Western world. My
parents lived through the overthrow and endured the aftermath as a time
when all things Hawaiian, including language, which they both spoke
fluently, hula, custom, and tradition, were viewed as negative. I,
therefore, was discouraged from speaking the language and practicing
Hawaiian customs and traditions. I was the youngest of eight children.
I remember as a young child sneaking to listen to my parents so that I
could maintain my ability to understand the Hawaiian language. My
experience mirrors that of my generation of Hawaiians.
While my generation learned to accept what was ingrained into us by
our parents, my children have had the advantage of growing up during
the Hawaiian renaissance, a period of revival for Hawaiian language,
custom, and tradition. Benefiting from this revival is the generation
of my grandchildren who can speak Hawaiian and know so much more about
our history.
It is this generation, however, that is growing impatient with the
lack of progress in efforts to resolve longstanding issues. It is this
generation that does not understand why we have not resolved these
matters. It is for this generation that I have written this bill to
ensure that we have a way to address these emotional issues.
There are those who have tried to say that my bill will divide the
people of Hawaii. My bill goes a long way to unite the people of Hawaii
by providing a structured process to deal with issues that have plagued
us since 1893.
This bill is also important to the people of Hawaii because it
affirms the dealings of Congress with Native Hawaiians since Hawaii's
annexation in 1898. Congress has always treated Native Hawaiians as
Hawaii's indigenous peoples, and therefore, as indigenous peoples of
the United States. Federal policies towards Native Hawaiians have
largely mirrored those pertaining to American Indian and Alaska
Natives.
Again, let me reiterate, Congress has enacted over 160 statutes to
address the conditions of Native Hawaiians including the Native
Hawaiian Health Care Improvement Act, the Native Hawaiian Education
Act, and the Native Hawaiian Home Ownership Act. The programs that have
been established are administered by federal agencies such as the
Departments of Health and Human Services, Education, Housing and Urban
Development, and Labor. As you can imagine, these programs go a long
way to benefit Native Hawaiians, but they also serve as an important
source of employment and income for many, many people in Hawaii,
including many non-Native Hawaiians. There are many Hawaii residents
whose livelihoods depend on the continuation of these programs and
services.
While I took the time a few weeks ago to talk about Hawaii's history,
I want to spend the next few moments discussing that history once
again. This is very important to understand the context of what we are
trying to accomplish with this bill.
The year 1778 marks the year of first contact between the Western
world and the people of Hawaii. That year, Captain James Cook landed in
Hawaii. Prior to Western contact, Native Hawaiians lived in an advanced
society that was steeped in science. Native Hawaiians honored their
land (aina) and environment, and therefore developed methods of
irrigation, agriculture, aquaculture, navigation, medicine, fishing and
other forms of subsistence whereby the land and sea were efficiently
used without waste or damage. Respect for the environment and for
others formed the basis of their culture and tradition.
Society was structured. Chief, alii, ruled each of the islands. Land
was divided into ahupuaa, triangular-shaped land divisions which
stretched from the mountain to the ocean. Each ahupuaa controlled by a
lower-chief. The lands were worked on by the commoners, referred to as
makaainana. There was an incentive for the chiefs to treat the
makaainana well as they could always move to another ahupuaa and work
for another chief.
The immediate and brutal decline of the Native Hawaiian population
was the most obvious result of contact with the West. Between Cook's
arrival and 1820, disease, famine, and war killed more than half of the
Native Hawaiian population. By 1866, only 57,000 Native Hawaiians
remained from the basically stable pre-1778 population of at least
300,000. The result was a rending of the social fabric.
This devastating population loss was accompanied by cultural,
economic, and psychological destruction. Western sailors, merchants,
and traders did not respect Hawaiian kapu, taboos, or religion and were
beyond the reach of the priests. The chiefs began to imitate the
foreigners whose ships and arms were so superior to their own.
By the middle of the 19th Century, the islands' small non-native
population had come to wield an influence
[[Page S5559]]
far in excess of its size. These influential Westerners sought to limit
the absolute power of the Hawaiian king over their legal rights and to
implement property law so that they could accumulate and control land.
As a result of foreign pressure, these goals were achieved.
The mutual interests of Americans living in Hawaii and the United
States became increasingly clear as the 19th Century progressed.
American merchants and planters in Hawaii wanted access to mainland
markets and protection from European and Asian domination. The United
States developed a military and economic interest in placing Hawaii
within its sphere of influence. In 1826, the United States and Hawaii
entered into the first of the four treaties the two nations signed
during the 19th Century.
King Kamehameha I began the Kingdom of Hawaii in 1810 upon unifying
the islands. The Kingdom continued until 1893 when it was overthrown
with the help of agents of the United States. The overthrow of the
Kingdom is easily the most poignant part of Hawaii's history. Opponents
of the bill have characterized the overthrow as the fault of Hawaii's
last reigning monarch, Queen Lili'uokalani. Nothing could be further
from the truth.
America's already ascendant political influence in Hawaii was
heightened by the prolonged sugar boom. Sugar planters were eager to
eliminate the United States' tariff on their exports to California and
Oregon. The 1875 Convention on Commercial Reciprocity eliminated the
American tariff on sugar from Hawaii and virtually all tariffs that
Hawaii had placed on American products. It prohibited Hawaii from
giving political, economic, or territorial preferences to any other
foreign power. It also provided the United States with the right to
establish a military base at Pearl Harbor.
While non-Hawaiians were determined to ensure that the Hawaiian
government did nothing to damage Hawaii's growing political and
economic relationship with America, Hawaii's King and people were
bitter about the loss of their lands to foreigners. Matters came to a
head in 1887, when King Kalakaua appointed a prime minister who had the
strong support of the Hawaiian people and who opposed granting a base
at Pearl Harbor as a condition for extension of the Reciprocity Treaty.
The business community, backed by the non-native military group, the
Honolulu Rifles, forced the prime minister's resignation and the
enactment of a new constitution. The new constitution--often referred
to as the Bayonet Constitution--reduced the King to a figure of minor
importance. It extended the right to vote to Western males whether or
not they were citizens of the Hawaiian Kingdom, and disenfranchised
almost all native voters by giving only residents with a specified
income level or amount of property the right to vote for members of the
House of Nobles. The representatives of propertied Westerners took
control of the legislature. This is the constitution that the opponents
to the bill have characterized as bringing democracy to Hawaii.
A suspected native revolt in favor of the King's younger sister,
Princess Liliuokalani, and a new constitution were quelled when the
American minister summoned United States Marines from an American
warship off Honolulu. Westerners remained firmly in control of the
government until the death of the King in 1891, when Queen Liliuokalani
came to power.
On January 14, 1893, the Queen was prepared to promulgate a new
constitution, restoring the sovereign's control over the House of
Nobles and limiting the franchise to Hawaiian subjects. She was,
however, forced to withdraw her proposed constitution. Despite the
Queen's apparent acquiescence, the majority of Westerners recognized
that the Hawaiian monarchy posed a continuing threat to the unimpeded
pursuit of their interests. They formed a Committee of Public Safety to
overthrow the Kingdom.
On January 16, 1893, at the order of U.S. Minister John Stevens,
American Marines marched through Honolulu, to a building known as Arion
Hall, located near both the government building and the Hawaiian
palace. The next day, local revolutionaries seized the government
building and demanded that Queen Liliuokalani abdicate. Stevens
immediately recognized the rebels' provisional government and placed it
under the United States' protection.
I was deeply saddened by allegations made by opponents of this
legislation that the overthrow was done to maintain democratic
principles over a despotic monarch. As you can tell by the history I
just shared, our Queen was trying to restore the Kingdom to its native
peoples after Western influence had so greatly diminished their rights.
Colleagues, I want you to understand Hawaii's history and the bravery
and courage of our Queen, who abdicated her throne in an effort to save
her people after seeing United States Marines marching through the
streets of Honolulu.
The Republic of Hawaii was formed in 1893, and in 1898, Hawaii was
annexed as a territory of the United States. At the time of the
overthrow, the Republic of Hawaii took control of approximately 1.8
million acres of land which were held in a trust for the people of the
Kingdom of Hawaii. The driving force of the overthrow, the formation of
the Republic, and the drive towards annexation was land ownership and
control over land.
Native Hawaiians, like other indigenous cultures, could not grasp the
concept of fee simple ownership of land. The concept of owning land was
as foreign to them as the concept of owning air would be to us today.
For ancient Hawaiians, and for many Hawaiians today, it is understood
that all fortune comes from the aina, or land. Therefore, it was
important to cultivate and protect the aina and its resources, but the
concept of owning it was inconceivable. Ancient Hawaiian society was
based on sharing--everyone cultivated, everyone protected, everyone
reaped the benefits.
From the time of annexation until present day, as I noted previously
in my statement, Congress has treated Native Hawaiians in a manner
similar to that of American Indians and Alaska Natives. Federal
policies towards Native Hawaiians have always paralleled policies
towards American Indians and Alaska Natives. As early as 1910, Congress
included Native Hawaiians in appropriating funds to study the cultures
of American Indians and Alaska Natives.
In 1921, Congress enacted the Hawaiian Homes Commission Act of 1920,
which set aside approximately 203,500 acres of land for homesteading
and agricultural use by Native Hawaiians. The act was intended to
``rehabilitate'' the Native Hawaiian race which was estimated to have
dropped from between 400,000 and 1 million, to 38,000. At the time,
prevailing Federal Indian policy was premised upon the objective of
breaking up Indian reservations and allotting lands to individual
Indians. Indians were not to be declared citizens of the United States
until 1924, and it was typical that a 20-year restraint on the
alienation of allotted lands was imposed. This restraint prevented the
lands from being subject to taxation by the states, but the restraint
on alienation could be lifted if an individual Indian was deemed to
have become ``civilized.'' The primary objective of the allotment lands
to individual Indians was to ``civilize'' the native people. The fact
that the United States thought to impose a similar scheme on the native
people of Hawaii in an effort to ``rehabilitate a dying race''
illustrates the similarity in federal policies toward Native Hawaiians
and American Indians.
Opponents of my bill have unfortunately conjured a theory that there
was no intent to recognize Native Hawaiians as indigenous peoples at
the time of Statehood. I've gone back and reviewed the constitutional
convention of 1950 which resulted in the constitution that was adopted
in 1959 when Hawaii was admitted to the Union. The delegates to this
convention reflected the multi-ethnic diversity in the islands. Only 19
percent of the delegates were Native Hawaiians. The 1950 convention
deliberately incorporated provisions of the Hawaiian Homes Commission
Act of 1920.
It was not without controversy. At least one delegate opposed its
inclusion. Yet, the majority of convention delegates voted to include
the provisions and the Hawaiian Homes Commission Act remains a part of
the Hawaii State Constitution today.
[[Page S5560]]
In addition, the Hawaii Admission Act also required the State to take
title over the majority of the public lands which had been ceded to the
United States at the time of annexation. The Act required that the
lands be held by the state as a public trust, with income and proceeds
being used for five public purposes, one of which was to address the
conditions of Native Hawaiians. It is clear to me after reviewing these
documents that while this issue has not been unanimous, there has
always been overwhelming support for efforts to recognize Native
Hawaiians as Hawaii's indigenous peoples, and to accord them such
treatment.
From 1959 to 1978, little was done at the state level to benefit
Native Hawaiians. In 1978, the state held a constitutional convention.
One of the results of the constitutional convention was the
establishment of the Office of Hawaiian Affairs, a quasi-State agency
which was set up to address Native Hawaiian issues. The agency would be
directed by a Board of Trustees, all Native Hawaiians, who were to be
elected by Native Hawaiians. The State of Hawaii ratified the
constitutional convention's proposal and from 1978 to 1999, the Board
of Trustees for the Office of Hawaiian Affairs was elected by Native
Hawaiians.
In 1999, the United States Supreme Court ruled in the case of Rice v.
Cayetano that because OHA receives state funds, the vote for the Board
of Trustees could not be restricted to Native Hawaiians. The vote for
the Board of Trustees has since been open to the entire State of Hawaii
and all state citizens are eligible to run for a position on the Board
of Trustees. The people of Hawaii have elected Native Hawaiians to each
of the nine positions.
Some of my opponents have claimed that this bill would circumvent the
Rice case. There is no intent to circumvent the Rice case. Nothing in
this bill would address the election of the Board of Trustees for the
Office of Hawaiian Affairs.
In 1993, P.L. 103-150, the Apology Resolution, was signed into law.
The bill apologized to Native Hawaiians for participation of U.S.
agents in the overthrow of the Kingdom of Hawaii and committed the
United States to a process of reconciliation with Native Hawaiians. In
1999, officials from the Departments of the Interior and Justice
traveled to Hawaii for public consultations with Native Hawaiians. In
2000, the Departments issued a report, From Mauka to Makai: The River
of Justice Must Flow Freely. One of the primary recommendations in the
report is that legislation should be enacted which would provide Native
Hawaiians with greater self-determination within the federal framework
over their assets and resources. S. 147 would make this recommendation
a reality.
The reconciliation process I referred to is still an ongoing process.
I see this measure as an important step in the reconciliation process--
a necessary step that provides the structure for us to continue to
progress in reconciliation between Native Hawaiians and United States.
I also want to share a unique fact about Hawaii's history. We have
had six forms of government. Pre-1810 the islands were ruled by
chiefdoms. The Kingdom of Hawaii was established, following the
unification of the Islands by King Kamehameha I in 1810, and continued
until the overthrow of the Hawaiian Monarchy in 1893. From 1893-1898,
the Republic of Hawaii ruled. The territorial government followed from
1898-1941. During World War II, martial law was declared, resulting in
the civilian government being dissolved and a Military Government
ruling the territory of Hawaii from 1941-1944. We returned to our
territorial government in 1944 and in 1959 we were granted admission
into the Union.
I can assure my colleagues that the political status of Native
Hawaiians has been a hot topic in Hawaii since 1959. In 1999, Hawaii's
Congressional delegation formed the Task Force on Native Hawaiian
issues. I was selected to head our delegation's efforts. I immediately
established five working groups to assist us in addressing the
clarification of the political and legal relationship between Native
Hawaiians and the United States. The groups included the Native
Hawaiian community, state officials, including agency heads and state
legislators, Federal officials, Native American and constitutional
scholars, and Congressional members and caucuses. We held several
public meetings in Hawaii with the members of the Native Hawaiian
community working group and the state working group. Individuals who
were not members of the working group, and many who opposed our
efforts, were allowed to attend and participate in the meetings.
Overall, we had more than one hundred individuals provide initial input
to the drafting of the legislation.
The bill was first considered by the 106th Congress. Five days of
hearings were held in Hawaii in August 2000. While the bill passed the
House, the Senate failed to take action. The bill was subsequently
considered by the 107th and 108th Congresses. For each Congress, the
bill has been favorably reported by the Senate Committee on Indian
Affairs and the House Committee on Resources. Unfortunately, until now,
we have not had an opportunity for the Senate to consider this
legislation.
S. 147 the Native Hawaiian Government Reorganization Act of 2005,
does three things: (1) it establishes a process for Native Hawaiians to
reorganize their governing entity for the purposes of a federally
recognized government-to-government relationship with the United
States; (2) creates an office in the Department of the Interior to
focus on Native Hawaiian issues and (3) establishes an interagency
coordinating group comprised of federal officials from agencies who
implement federal programs impacting Native Hawaiians.
The process for the reorganization of the Native Hawaiian governing
entity has received the most publicity and most attention. I am very
proud of the careful balance between structure and flexibility provided
in the reorganization process. Native Hawaiians will truly be able to
make critical decisions in shaping their reorganized governing entity.
Some have asked, why do you need to reorganize the entity? My answer
is simple--our history requires it. Unlike some of our native brethren,
when the Kingdom of Hawaii was overthrown, our native peoples were not
allowed to retain their governing entity. Article 101 of the
Constitution of the Republic of Hawaii required prospective voters to
swear an oath in support of the Republic and declaring that they would
not, either directly or indirectly, encourage or assist in the
restoration or establishment of a monarchical form of government in the
Hawaiian Islands. The overwhelming majority of the Native Hawaiian
population, loyal to their Queen, refused to swear to such an oath and
were thus effectively disenfranchised.
Similarly at the time of annexation, an overwhelming number of
Hawaiians signed a document in protest of annexation, referred to as
the Ku`e Petition. It is this document that I have here. A substantial
number of Native Hawaiians signed this document in further protest of
what had happened to their government.
My bill provides for the reorganization of the governing entity,
because upon the overthrow of the Kingdom of Hawaii, Native Hawaiians
lost their governing entity. Despite the lack of a government, Native
Hawaiians have maintained distinct communities and perpetuated their
culture, traditions, customs, and language. While the United States has
always treated us in a manner similar to that of American Indians and
Alaska Natives, the Federal policy of self-governance and self-
determination has not been extended to us because we lack a
governmental structure.
Opponents of my bill say that I am creating a government. I believe
it is clear that, rather than creating a government, I seek to provide
an opportunity for the restoration of a government which requires the
reorganization of an entity.
Similarly, because of our history, the governmental authority in
Hawaii is held by the State, local, and Federal governments. For that
reason, the bill requires that following the reorganization of the
entity and the recognition of the entity by the United States, the
Native Hawaiian governing entity will negotiate with the State and
Federal governments regarding matters such as the transfer of lands,
assets, and natural resources, and the exercise of governmental
authority. Everything remains status quo until addressed and resolved
in the negotiations process.
[[Page S5561]]
It is anticipated that Hawaii's State Constitution is likely to
require an amendment which will require the vote of all residents in
Hawaii. It is also anticipated that implementing legislation at the
state and federal levels will be required to implement negotiated
matters. This is what I referred to as the structured process that
would allow the people of Hawaii to address the longstanding issues
resulting from the overthrow of the Kingdom of Hawaii. This process is
inclusive and allows for all interested parties to participate.
Opponents of my bill have sought to either mischaracterize potential
outcomes or to predetermine the process. I have opposed both efforts.
As you can see, enactment of this bill alone does not, for example,
allow for the native government to exert criminal and civil
jurisdiction over people in Hawaii. Rather, for the Native Hawaiian
governing entity to exert any jurisdiction, the state and federal
government would need to agree to allow the Native Hawaiian governing
entity to exercise such authority. Implementing legislation at the
state level would also need to be enacted to make this a reality.
Others have sought to predetermine this matter. Given the inclusive
process that the bill provides, and the fact that the people of Hawaii
need to address these matters, I do not believe it is appropriate for
Congress to predetermine the outcome of this process. Given everything
that I have shared with you, I would hope that you agree with me.
Finally, before I conclude, I'd like to speak briefly about what this
bill does not do. The enactment of S. 147 will not lead to gaming in
Hawaii. There is only one federal statute that authorizes gaming in
Indian Country, the Indian Gaming Regulatory Act, and it does not
authorize Native Hawaiians to game. In addition, the State of Hawaii is
one of two states in the union that criminally prohibits all forms of
gaming. Therefore, gaming by the entity would only be allowed with
changes to both federal and state law.
The enactment of this bill also does not impact funding for Indian
programs and services. As I described earlier, Congress has established
programs and services for Native Hawaiians. These programs are
appropriated from accounts completely separate from those that fund
Indian programs and services. The bill clearly states that it does not
create eligibility for Native Hawaiians to participate in Indian
programs and services.
I will conclude where I began. Colleagues, for the people of Hawaii,
native issues are not partisan. Many of my constituents merely ask that
we do right by Hawaii's indigenous peoples and enact this measure that
provides Native Hawaiians with the opportunity to reorganize their
governing entity for the purposes of a Federally recognized government-
to-government relationship with the United States. Many of my
constituents ask that you enact this bill because it provides a
structured process for us to finally address longstanding issues
resulting from a painful history so that we can all move forward as a
State.
Mr. AKAKA. After 6 long years, we will be voting tomorrow on a motion
to invoke cloture to proceed to S. 147. Whether you are for or against
it, I ask all Members to let this bill come to the Senate so we can
discuss its merits. It is only through this dialog, through the airing
of facts and the dismissal of misunderstandings and myths, that we can
provide a fair and honest consideration of what this measure really
means to Native Hawaiians as well as to this great Nation of ours. That
is what this honorable body has always done. This is why we gather in
this Senate to discuss matters of law and governing and of fairness and
of human and civil rights.
At the heart of it, this bill is about fairness and about creating a
process to achieve it. Native Hawaiians have been recognized as
indigenous peoples by Congress. After more than 160 statutes, for more
than 100 years, Congress has treated Native Hawaiians in a manner
similar to American Indians and Native Alaskans. But when it comes to
having a process and Federal policy on self-governance and self-
determination, Native Hawaiians have not been treated equally.
What this bill does is authorize a process to examine whether a
policy of self-governance and self-determination can be extended to
Native Hawaiians, thereby creating parity in the way the United States
treats its indigenous peoples.
We have bipartisan support for this bill. I extend my deep
appreciation to its cosponsors, Senators Cantwell, Coleman, Dodd,
Dorgan, Graham, Inouye, Murkowski, Smith, and Stevens for their
unwavering support. Again, I especially want to honor Hawaii's first
Republican Governor, Governor Lingle, in 40 years. Despite our
different political affiliations, Governor Lingle, Hawaii's Attorney
General Mark Bennett, Hawaiian Homes Commission Chairman Micah Kane,
and the rest of the Lingle administration have worked tirelessly with
us to support this bill.
While that may surprise some in Washington, DC, you have to
understand back home, support for Hawaii's indigenous peoples is a
nonpartisan issue. We see our diversity as our strength and not as a
threat. It is a point of pride and a thing that unites, not divides us.
We embrace our diversity and celebrate it as part of our social fabric.
It is who we are as a people and as a State. That is why we are not
threatened by efforts to preserve and strengthen the culture and
traditions of Hawaii's indigenous peoples.
Let me also say that the people of Hawaii, including Native
Hawaiians, are proud to be Americans and to share that system of
government that always has and allows us to be many and also to be one.
They include the many Native Hawaiians who are members of the Hawaii
National Guard and who are called away from their families to serve in
operation Iraqi Freedom. Moreover, it is a well-documented fact that
native peoples have the highest per capita rate of those serving in our
military.
That is why it is absolutely offensive to read mischaracterizations
of this bill as an effort to secede from the United States.
What this bill really does is provide a structured process to finally
address long-standing issues resulting from a dark period in Hawaii
history, the overthrow of the kingdom of Hawaii.
A few weeks ago I took time to talk about Hawaii's history. I have
given a review of that history and its ramifications on this measure. I
believe it is absolutely essential for anyone voting on this bill to
understand historical context. I strongly encourage all Members to
again review this history because there remain issues stemming from the
overthrow that have not been addressed because of apprehension based on
emotions rather than facts.
Instead, there has been fear of where these discussions might lead,
causing people to avoid the issue altogether. Such behavior has led to
frustration and misunderstanding between some Native and non-Native
Hawaiians. But let me bring this complex history and how it has
affected us down to a more human scale and to a more personal level.
As young child, I was discouraged from speaking Hawaiian because I
was told it would not allow me to succeed in the Western World. My
parents, God bless them, lived through the overthrow and endured the
aftermath, when all things Hawaiian, including language, hula, custom,
and tradition, were viewed negatively. I was discouraged from speaking
the language and practicing Hawaiian customs and traditions. I was the
youngest of eight children. I remember as a young child sneaking to
listen to my parents so that I could maintain my ability to understand
the Hawaiian language. My experience mirrors that of many other
Hawaiians of my generation.
While we dealt with the stigma of being Hawaiian, my children have
had the advantage of growing up during a period of revival for Hawaiian
language, custom, and tradition. My grandchildren, who can speak
Hawaiian and know so much more about our history, also benefited from
this revival. It is this generation, knowing the history, that grows
impatient with the lack of progress and efforts to resolve longstanding
issues. It is this generation, steeped in American values of justice,
equality, and self-determination, who cannot understand why we have not
yet resolved these matters. It is for this and future generations that
we have written this bill to address these important issues.
[[Page S5562]]
There are those who have tried to say that my bill will divide the
people of Hawaii. I believe my bill goes a long way to unite the people
of Hawaii by providing a structured process to deal with unresolved
issues and unhealed wounds that have plagued us since 1893.
Essentially, the Native Hawaiian Government Reorganization Act does
three things: One, it establishes a process for Native Hawaiians to
form a government-to-government relationship with the United States.
Two, it creates an office in the Department of the Interior to focus on
Native Hawaiian issues. And three, it establishes a coordinating group
comprised of officials from Federal agencies who implement programs
impacting Native Hawaiians. But it is the process for reorganizing a
governing entity that has received the most attention. That is why I am
very proud of the careful balance between structure and flexibility
provided in this process. Native Hawaiians will truly be able to make
critical decisions in shaping their government.
Some have asked: Why do you need to reorganize a governing entity? My
answer is simple: Our country's history requires it. Our sense of
justice and fairness requires it. When the kingdom of Hawaii was
overthrown, our native peoples were not allowed to retain their
governing entity. Article 101 of the Constitution of the Republic of
Hawaii required prospective voters to swear an oath in support of the
Republic and declare that they would not, either directly or
indirectly, encourage or assist in the restoration or establishment of
a monarchy in the Hawaiian Islands. The overwhelming majority of the
Native Hawaiian population, loyal to the Queen at that time, refused to
swear to such an oath and was thus effectively disenfranchised.
Similarly, at the time of annexation, an overwhelming number of
Hawaiians signed a document of protest referred to as the Ku'e
petition--it is this document that I have--as a substantial number of
Native Hawaiians signed this document in further protest of what had
happened to their government. Despite the lack of a government, Native
Hawaiians have maintained distinct communities and perpetuated their
culture, tradition, customs, and language.
Opponents of the bill say I am creating a new government. I believe I
am providing an opportunity for the restoration and reorganization of a
government that once existed and was unjustly removed.
Before I conclude, I wish to speak briefly about what this bill does
not do. This bill will not result in the taking of private lands in
Hawaii. No one will lose their home or business because of my bill. The
enactment of S. 147 will not lead to gaming in Hawaii. There is only
one Federal statute that authorizes gaming in Indian Country--the
Indian Gaming Regulatory Act. And it does not authorize Native
Hawaiians to game. In addition, the State of Hawaii is one of only two
States that criminally prohibits all forms of gaming. Therefore, gaming
would only be allowed with changes to both Federal and State law.
Enactment of this bill does not impact funding for Indian programs
and services. Congress has established separate programs and services
for Native Hawaiians. These programs are appropriated from accounts
separate from those that fund Indian programs. Moreover, the bill
clearly states that it does not allow Native Hawaiians to participate
in Indian programs and services.
Finally, gaining an understanding of a history of a culture and
people we are not familiar with is not an easy task. I commend Members
of the body for doing their homework. It can be so easy to simply
dismiss this bill as racially based, as a threat to the sovereignty of
the United States or as a ploy for one group to gain an undeserved
advantage. The harder task is a studied one. But it is the right one.
If I might take you back in history one more time for just a moment:
In the 1840s, recognizing the strategic importance of the Hawaiian
Islands, the great maritime powers of the day--principally England,
France, and the United States--jockeyed for positions of advantage,
even as they acknowledged the islands as an independent nation. It was
a time of much international intrigue. Urged on by local British
residents, the commander of the British squadron in the Pacific sent an
armed frigate to Honolulu to ``protect British interests.''
King Kamehameha III was forced to yield to British guns, and for 5
months the islands were placed under British rule. International
pressure, as well as personal intervention from Queen Victoria herself,
eventually forced the British Government to declare the action as
unauthorized. On July 31, 1843, the Hawaiian flag was raised once
again.
During a service of thanksgiving held at historic Kawaiahao Church in
Honolulu, Kamehameha III recited a phrase that has since become
Hawaii's State motto: Ua mau . . . ke ea . . . o ka aina . . . I ka
pono--the life of the land . . . is perpetuated . . . in righteousness.
That has always been the case, not only in Hawaii but throughout our
Nation's history.
The people of Hawaii are asking that we do right by Hawaii's
indigenous peoples and enact this measure that provides Native
Hawaiians with an opportunity for self-determination and self-
governance. They ask that we enact this bill because it provides a
structured process to finally address longstanding issues resulting
from a painful moment in our history, so that we can move forward as a
State. They ask that we enact this bill because it is just, because it
is fair, because it is the right thing to do.
We are a nation of immigrants, and we celebrate our diversity every
day at dining room tables around the country. In this grand experiment
of democracy, we have found we can be many and yet be indivisible. The
United States of America has pledged itself to liberty and justice for
all people. This bill does that for the Native Hawaiians.
I yield the floor.
The PRESIDING OFFICER. There are 2 minutes 7 seconds remaining on the
minority's time.
Mr. AKAKA. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. ALEXANDER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ALEXANDER. Mr. President, I said earlier that I think we will
hear on the Senate floor many times during this debate about the
enormous respect we have for our two colleagues from Hawaii and how
much we would prefer not to disagree with them. I think it is fair to
say that this bill would not have a chance of being seriously
considered on the floor if it weren't for our respect for them.
Despite that respect, I have to say, after hearing the Senator from
Hawaii, this bill is worse than I thought. Many of my colleagues in the
Republican caucus have come to me and said this is not about
sovereignty or about race. The Senator from Hawaii made very clear that
this is about sovereignty. He said in his own words that this is a bill
to create--he says ``restore''--let's just say establish--a new
government within the United States of America, and admission to that
government is based upon race. So you cannot pass this bill off and say
it is not about sovereignty. It is about sovereignty. There is no
difference of opinion about that between the Senator from Hawaii and
me.
He said specifically that the first objective of this legislation is
to establish a process to establish a government which would have a
government-to-government relationship with the United States. That is a
sovereign government composed of American citizens who would now become
part of a new government because they might be a small percentage
Native Hawaiian, and certain benefits would come to them. So it is
about sovereignty and race.
Why is that a problem? Let me add that the Senator from Hawaii
referred to this new sovereignty as their government. But we have one
government. That's why there are Americans, just like my family, which
is Scotch-Irish American, like those of African descent who are
Americans, and like those of every descent who are Americans, who share
in our government.
That is what is special about this country. Of course we admire our
diversity. What a great strength diversity is. No country is more
diverse. We are a land of immigrants. Out of that
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great mix comes our strength. But there is one greater strength, and
that is taking all of that diversity and making one country of it.
How do we do that? We do it in an extraordinary way that goes all the
way back to Valley Forge, when George Washington administered an oath
to his officers that said:
I renounce, refuse, and abjure any allegiance or obedience
to the king, and I swear that I will, to the utmost of my
power, support, maintain, and defend the United States of
America.
Now, new citizens of this country have ``become Americans'' ever
since then by taking that same oath. In the immigration bill we passed
a couple weeks ago, we codified that oath. So every year, a half
million people come here from countries such as Bangladesh, China,
France, and every part of the world. They don't come to salute India or
speak the language of China or to adopt the principles of France. They
respect where they came from, and they are proud of it, but they become
Americans. We don't do it based on race. We don't do it based on
ancestry. We do it based upon a few principles in our founding
documents. One of those is that we don't discriminate based upon race
or ancestry, and another great principle is E pluribus unum, which this
bill would turn upside down.
So this is not a bill which should be passed just because we greatly
respect our colleagues, which we do. But Hawaiians are Americans.
Tennesseans are Americans. Oklahomans are Americans. Hawaiians have
been American citizens since 1900. In 1959, they voted 94 percent to
become a State, to be Americans. When you become American, you renounce
your allegiance to some other government and pledge allegiance to the
United States of America. If we don't do that, we take step toward
being a sort of United Nations instead of a United States.
I hope my friends, who have looked at this bill and said: We love our
colleagues and this doesn't seem like a very important bill, so let's
do it for them, will look at the assault upon a tremendously important
principle embedded in this bill. It is about sovereignty. It is about
land and money. It is about race. It is not the same as what we did in
Alaska. Native Hawaiians are not just another Indian tribe. We don't
create Indian tribes; we recognize Indian tribes. This is not an Indian
tribe under the language of our laws.
I am afraid that what has happened here is that in 1998, the Supreme
Court of the United States made a decision and they said Native
Hawaiians could not have an organization if the voting membership was
based upon being Native Hawaiian because the 15th amendment to the U.S.
Constitution says you cannot vote based on race. So this is an
attempt--it is a breathtaking attempt--to establish a new nation within
the United States of America.
I suppose there might be a lot of aggrieved people in the United
States who might like to establish a nation. This Nation isn't without
pain. We have stories from our beginning, whether it is Native
Americans, whether it is African Americans, whether it is Mormons who
may have felt mistreated, murdered in State after State, whether it is
one religion today--maybe it is Hasidic Jews or an Amish group. There
are a great many people who, in our history, may not have been properly
treated. But an understanding of American history is that it is a great
saga of setting high goals for ourselves and then always moving toward
those goals. We never reach them. We say ``all men are created equal,''
but we have never been. The men who wrote that owned slaves. But what
have we done? We have systematically, over our history, chipped away,
moving ahead, falling back, fighting a great Civil War, saving the
Nation, waiting another hundred years before African Americans could
sit at a lunch counter in Nashville, always moving toward that goal.
Most of the debates in this Senate are about establishing high goals--
pay any price for freedom, equal opportunity, E pluribus unum. Those
are our goals, and we never reach them, but we always try for them.
What is our goal here? Our goal is that we should hope that every
single citizen in this wonderful State of Hawaii be equal--if there
ever were a multiethnic, diverse State, it is Hawaii. It is a wonderful
example of our diversity. According to the 2000 census, 40 percent of
Hawaiians are of Asian descent, 24 percent are White, 9 percent say
they are Native Hawaiian or Pacific Islanders, 7 percent claim to be
Hispanic, 2 percent Black. Twenty-one percent report two or more racial
identities. There is much diversity of which Hawaiians are proud and of
which we are proud. What unites them? What unites us all is that we
have become Americans. We are proud of where we came from, proud of our
ancestry, but prouder to be American.
There may be some issues that need to be addressed. We can find ways
to address them. There may be some wrongs that need to be righted.
Certainly, Native Hawaiians would want to renew their culture and their
customs and their language. All of us do that. I go to my family
reunion of Scotch-Irish Presbyterians every summer. I have been to the
Italian-American dinner here in Washington, DC. I never went to an
event where there was more emotion or Italianness. But the greatest
emotion came when the Italian Americans stood up and pledged allegiance
to the United States. They didn't have a problem saying: We are proud
to be Italian, but we are prouder to be American. So how could we be
seriously discussing on the floor of the Senate establishing for
400,000 Americans who live there, I think from almost every State of
this country, a new government based on race to which they would be
privileged and the rest of us could not be a part of? That is not
American. That might be the United Nations, but it is not the United
States. It is not consistent in the most basic ways with the history of
this country.
So I hope that my colleagues, who have considered this legislation as
maybe not too important, as something that should be done primarily out
of respect for our two distinguished friends from Hawaii, will look at
this carefully and not be lulled in by comments that this isn't about
sovereignty. I think Senator Akaka was very candid and very direct when
he said the first objective of this bill was to establish a process to
create an entity which would have a government-to-government
relationship with the United States.
Mr. President, this is a dangerous precedent. It is the reverse of
what it means to be an American. We have other issues that should come
to the floor before this. I hope colleagues will think carefully before
moving ahead on this piece of legislation.
I see the Senator from Alabama has arrived.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama is recognized.
Mr. SESSIONS. Mr. President, I thank the Senator from Tennessee, Mr.
Alexander, for his thoughtful comments on this subject and other
related subjects. He taught me a phrase that he uses, which is that we
need to make sure everyone who grows up in this country knows what it
means to be an American. To be an American is not a racial thing. An
American is a person who adopts the American ideal of equal justice
under law, without regard to race, religion, national origin, or any
other matter of that kind.
Our Founders of this Nation were very wise in a number of important
ways. One of the most important ways was they had a clear vision of the
Nation they birthed and they saw it far into the future. They always
considered the importance of principle because principle was important
to the growth and progress of the Nation they loved for the long term.
They never failed to think of the impact their actions may have on the
future, even the distant future of the country they birthed, the
country they loved.
I do not believe we are as thoughtful today in that matter as we used
to be. Too often, we make decisions based on perceived immediate needs
or on political forces at the time or friendship or some deal we
thought we were forced to make or needed to make at a given time; and
too seldom in this busy, hectic place do we take the time to consider
the long-term implications of our actions on the great Republic which
we have been given.
We simply must think in the long term in a principled way as we
consider the Native Hawaiian legislation. It is not too much to say the
legislation could create a crack in the American ideal of equal rights
and colorblind justice. This would be a huge step. It is a
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step we must not take. This Nation in its maturity and wisdom must not
succumb to any balkanization of America. A great nation must set
crystal clear policies on these matters, crystal clear policies on this
question. The Republic must firmly reject, must nip in the bud now and
whenever it may appear in the future, any notion of creating sovereign
governments within our borders unless they meet every criteria of the
Indian Tribe Program.
National Review said in a recent article:
You might have thought after watching the immigration
debate that the Senate could not be more cavalier about the
unity and sovereignty of the Nation. Think again. The Senate
is about to vote to pave the way with a bill to create a
race-based government which is on the verge of passing.
This bill has been around a number of years, but we have never had a
full debate about it. Unfortunately, many in Congress don't seem to
fully understand yet the enormous implication of establishing what can
really fairly be said to be a race-based government. And further, the
American people have not been informed of the breadth and significance
of the legislation. That is why it is good we are having the debate at
this time.
We must talk about it. We ought to let the American people know that
this bill would create a nation out of United States citizens. The
territory known as Hawaii is the epitome really of our country's great
melting-pot concept and has always been made up of a diverse group of
citizens with different racial backgrounds. They are famous for that.
If we pass this bill, we will divide them. The bill would result in
the State of Hawaii giving up substantial lands to the new nation which
would begin a downward spiral from an America that is based on a shared
ideal to one where race, ancestry, our nationality constitute a legally
approved basis for segregation and really discrimination.
What is discrimination? Discrimination is saying you have an
advantage or a disadvantage based on race.
This legislation seeks to create an extra constitutional race-based
government of Native Hawaiians by arbitrarily labeling that race of
people as an Indian tribe.
Essentially, it seeks to create a sovereign entity out of thin air,
something that the Supreme Court said as far back as 1913 cannot be
done. Indian tribes existed before our Constitution, before our Nation,
in many cases, with continuity of leadership, centralized locality, and
cultural cohesiveness. Therefore, the United States recognizes
qualified Indian tribes as sovereign entities. Indeed, we signed
treaties with many of them and made promises in those treaties to
provide them certain degrees of sovereignty.
Equating Native Hawaiians with a legitimate Indian tribe is not
possible because Native Hawaiians share none of the unique
characteristics possessed by recognized tribes. Native Hawaiians never
lived as a separate, distinct, racially exclusive community, much less
exercise sovereignty over Hawaiian lands. They never established
organizational or political power. They never lived under a racially
exclusive government. All Hawaiians, regardless of race, were subjects
to the same monarch in 1893. In other words, Native Hawaiians have
never exercised inherent sovereignty as a native indigenous people, as
the bill asserts and must assert if it were to have any chance of
withstanding constitutional muster.
Nonetheless, the bill would carve out a special exemption in the
Constitution for these people based on race solely. A special exception
being sought for Native Hawaiians is extraordinary.
Under the bill, there is no guarantee that members of a new
government would be subject to constitutional rights and protections,
such as the first, fourth, and 15th amendments. The U.S. Constitution
guarantees to every citizen a republican form of government, and this
has been defined to mean all the protections of our Constitution.
At a minimum, the Founding Fathers intended that a republican form of
government ensure popular rule and no monarchy, but under this bill,
nothing guarantees these basic principles will be honored. This new
government, this new sovereignty will be free to reinstate a monarchy
or establish any other method of government they may choose.
Essentially, persons who are now citizens of the United States and
who are now guaranteed these protections, a republican form of
government, would now be turned over to a government that is not bound
to honor that.
One should not be deprived of the right to vote or be denied free
speech or have property taken without due process. These are deeply
rooted principles in the United States, but they will not be guaranteed
as part of a Native Hawaiian government. Under the bill, Congress would
strip United States citizens of these and other great protections they
now enjoy.
Perhaps this is why there is a lot of unease in Hawaii about this
legislation. Indeed, so many residents oppose it. In May of 2006, in a
telephone pole, 58 percent of Hawaiian residents said they opposed the
bill. Of the respondents identifying themselves as Native Hawaiian,
only 56 percent said they supported it. Of the Native Hawaiians, only a
little more than half said they supported it. Given this split among
even Hawaiians, is it not surprising that 50 percent of all respondents
said they want a vote on the bill before it becomes law, which is not
provided for in this legislation?
I will share a few thoughts by the U.S. Commission on Civil Rights.
They oppose the bill. The U.S. Commission on Civil Rights voted
recently to oppose the legislation because of its concern with the
bill's discriminatory impact.
The Commission is an independent Government agency tasked with the
duty to examine and resolve issues related to race, color, religion,
sex, age, disability, or national origin. It is composed of eight
members, though currently only seven. Four are appointed by the
President and four are appointed by Congress. At no time may more than
four members of the same party sit on the Commission.
Pursuant to its authority to submit reports, findings, and
recommendations to the Congress, the Commission released their report
last month on this bill recommending ``against the passage of the
Native Hawaiians Government Reorganization Act or any other legislation
that would discriminate on the basis of race or national origin and
further subdivide the American people into discrete subgroups accorded
various degrees of privilege.''
That is strong language. I submit that is what the bill does. I
submit that is why we should not pass it.
Let me repeat that. They oppose this act and any other legislation
that would ``discriminate on the basis of race or national origin and
further subdivide the American people into discrete subgroups accorded
varying degrees of privilege.'' And, I would add, based on their
national ancestry or race.
ThIs report was issued after--the Commission held a hearing on
January 20, 2006, where experts--both opposing and supporting the
bill--testified about the legislation. The Commission held the briefing
record open until March 21, 2006, to receive additional comments from
the public. Sixteen public comments were received during the period,
and most of the commentators wrote to express their opposition to the
bill.
Interestingly, the report notes that ``While most commenters oppose
the legislation, the governmental and institutional commenters
primarily support it. The report also states that ``Many [opponents]
argued, in very personal terms, that the proposed legislation would be
inconsistent with basic American principles of equality, traditional
Hawaiian values, and their own personal ethics.
Commission Chairman Gerald A. Reynold, himself an African American,
agreed with opponents, stating that:
I am concerned that the Akaka Bill would authorize a
government entity to treat people differently based on their
race and ethnicity . . . This runs counter to the basic
American value that the government should not prefer one race
over another.''
In a case called Rice v. Cayetano, the Supreme Court found a similar
attempt to create a race-based classification unconstitutional. In that
case, the Court struck down a race-determinative voting restriction in
Hawaii as a violation of the fifteenth amendment, which bars racial
restrictions on voting. By a vote of 7 to 2, the Court held
unconstitutional a system under which non-Native Hawaiians were barred
from voting for or serving as
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trustees of the State's Office of Hawaiian Affairs. Finding that the
fifteenth amendment protects the rights of Whites, Asians, Hispanics,
and persons of other races in Hawaii just as it protects all other
individuals against racial discrimination, the Court stated:
One of the reasons race is treated as a forbidden
classification is that it demeans the dignity and worth of a
person to be judged by ancestry instead of by his or her own
merit and essential qualities. An inquiry into ancestral
lines is not consistent with respect based on the unique
personality each of us possesses, a respect the Constitution
itself secures in its concern for persons and citizens.
Proponents of this bill seek to circumvent this Supreme Court
decision by completely separating the Native Hawaiian community into
its own sovereignty, placing it and its members outside of
Constitutional protections. This is the only way it can be done.
Instead of carving Native Hawaiians out from constitutional
protections, and separating them from America, we must uphold
constitutional principles, as well as American--especially Hawaiian--
ideals, by not discriminating against anyone on account of race.
Our Constitution seeks to eliminate racial separatism, not promote
it. How can we promote equality while separating our people into
distinct, legally-recognized racial sovereignties with more or less
rights and still be ``one nation''?
Because they existed prior to the establishment of our Constitution
and Federal Government, Native American Indian tribes have long been
recognized as sovereign entities--most signed treaties to that effect.
Tribes have never been, nor can they now be, created out of thin air
by Congressional legislation. Instead, ``tribes'' seeking recognition
after statehood must adhere to a process established by the Federal
Government. To be formally recognized, a tribe must demonstrate that it
has operated as a sovereign for the past century, was a separate and
distinct community, and had a preexisting political orgranization. The
Native Hawaiian people cannot meet these criteria and have conceded
such on at least one occasion. In the case that I previously mentioned,
Rice v. Cayetano, the State of Hawaii argued in its brief that:
[F]or the Indians the formerly independent sovereign entity
that governed them was the tribe, but for native Hawaiians,
their formerly independent sovereign nation was the Kingdom
of Hawaii, not any particular `tribe' or equivalent political
entity. . . . The tribal concept simply has no place in the
context of Hawaiian history.
Let me reiterate and further explain why Native Hawaiians cannot meet
the Bureau of Indian Affairs' standards for tribal recognition.
Those standards boil down to two basic requirements: one, the group
must be a separate and distinct community, and two, a prexisting
political entity must be present.
The BIA requires a tribe to demonstrate that it represents a separate
and distinct community. Yet, Native Hawaiians live in almost every
state in the Nation and have fully integrated into American society.
Native Hawaiians do not live as a cohesive, autonomous group of people
and have not done so at any point in history. Rather, they are fully
immersed in all aspects of American life. For example, almost half of
all marriages in Hawaii are interracial. Hawaiians serve in the U.S.
military, dedicating their lives to the service of America. They are a
part of American culture and certainly do not live separate and
distinct from the rest of us.
The BIA requires a tribe to demonstrate that it had a preexisting
political organization. Yet, no political entity--whether active or
dormant--exists in Hawaii that claims to exercise any kind of
organizational or political power. Knowing this, the bill's advocates
rely on findings in the bill declaring that ``Native Hawaiians''
exercised ``sovereignty'' over Hawaii prior to the fall of the monarchy
in 1893, and that it is therefore appropriate for Native Hawaiians to
exercise their ``inherent sovereignty'' again. This argument is fatally
flawed because there was no race-based Tribal Hawaiian government in
1893, so there is no ``Native Hawaiian'' government to be restored.
Since the early 19th century, the Hawaiian ``people'' included many
native-born and naturalized subjects who were not ``Native Hawaiians''
in the sense of this bill--those people included Americans, Chinese,
Japanese, Koreans, Samoans, Portuguese, Scandinavians, Scots, Germans,
Russians, Puerto Ricans, and Greeks. All were subjects of the monarch,
not just those with aboriginal blood. Further, Hawaiian government,
including the monarchy that existed until 1893, always employed non-
Natives, even at the highest levels of government. Therefore, it would
be impossible to ``restore'' the ``Native Hawaiian'' government of
1893--as the bill purports to do--because no such racially-
exclusive government--or nation--ever existed.
If there ever was a time for Native Hawaiians to establish themselves
as an Indian tribe, it has long passed. When Hawaii was considering
statehood, there was absolutely no push to establish any tribal
sovereignty. In fact, 94 percent of voters supported statehood in 1959,
and at the moment it was attained, all people living in the territory
became full-fledged citizens of the United States of America. They
deserve every protection that our Constitution ensures.
There are many practical consequences of this legislation that must
be considered. If this bill passes, it would allow for the creation of
Hawaiian ``tribes'' in every State. This would have extreme social
consequences--sporadic pockets of people in almost every State would be
governed differently than their neighbors and would be immune from
State and Federal laws and taxes. The result would be a chaotic
intermixing of different rules and regulations throughout the entire
country. Native Hawaiian business owners, exempt from state and local
taxes, could displace non-Native Hawaiian business-owning neighbors,
giving them an enormous competitive advantage. Further, the bill could
conceivably lead to complete secession from the United States. In fact,
a group of supporters, including the State of Hawaii's own Office of
Hawaiian Affairs, views this bill as a potential step towards ``total
independence.'' On a website operated by that agency, the following
passage appears under a section called, ``How Will Federal Recognition
Affect Me?''
[The bill] creates the process for the establishment of the
Native Hawaiian governing entity and a process for federal
recognition. The Native Hawaiian people may exercise their
right to self-determination by selecting another form of
government including free association or total independence.
How breathtaking is that? We simply cannot return to a government
where different races of Americans are governed by different laws.
The bill itself does not require any percentage of Native Hawaiian
blood for inclusion in the new race-based government, which could
therefore include someone with only ``one drop'' of native blood.
Hawaiians with significant traceable blood heritage oppose the bill, in
part, for this very reason. Those Hawaiians with at least 50 percent
blood quantum were given Federal assistance and lands by the Hawaiian
Homes Commission Act of 1921, a requirement which still exists today,
with the only exception being for children of homesteaders with 25
percent blood quantum.
Doesn't this entire process of dividing money, property, and benefits
based on a person's race--the percentage of ``blood'' they have--sound
an alarm? Yet this bill positively seeks to divide people based upon
race and blood--all in the name of apology and restitution.
What about the French who held the Louisiana territory? Should they
be given special benefits because we forced them into a sale?
We cannot go down this path. Not only would all Americans suffer if
we sever Native Hawaiians from our American community, but those
individuals who would become citizens of a Native Hawaiian sovereignty
would lose rights that we as Americans cherish.
One of the many lessons learned from the Civil War is the importance
of national unity. Abraham Lincoln referred to the principle of
secession as ``one of disintegration, and [one] upon which no
government can possibly endure.''
We fought a war over the issue, and the question was settled for all
time. We are one Nation and will not be separated--whether by secession
of a State or a racial group. Certainly we cannot promote this state-
sanctioned racial separatism. If passed, this bill would create a
slippery slope that could lead
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to a host of pernicious possibilities for our future as a unified
Nation. In an editorial written last fall, Georgie Anne Geyer quoted
the eminent historian Henry Steele Commager praising the Founding
Fathers for thinking hard about the future--even the distant future.
They ``couldn't give a speech or write a letter without talking about
posterity.''
We cannot set a precedent that would allow every racial group in
America to become its own independent sovereignty. Native Hawaiians,
just like any other racial group in this country, are free to practice
and promote their culture. They are free to pass down their traditions
from generation to generation. America celebrates her diversity, but
she cannot allow her diversity to divide her citizens.
E Pluribus Unum--out of many, one--is fundamental to our national
character. This bill seeks to turn that fundamental principle upside
down and would make us many out of one.
Mr. President, I see my colleague from Idaho is in the Chamber. I
will conclude with these thoughts. We are as Members of this Senate
particularly charged with thinking about the long-term future of our
Republic. That is how we are today in a relatively healthy condition
because our forefathers thought about those matters. They thought about
the principles on which this Nation was founded.
The concept is that once an American, based on adoption of the
American ideal, you become an American regardless of your race, your
ancestry, your religion, or your national origin. That is who we are as
a people. And I submit, it is a matter of the greatest danger that we
move away from the classical acceptance of Indian tribes to now start
creating sovereign entities.
Sovereign means independent, to a certain degree uncontrollable by
the U.S. Government. Sovereign entities within our Nation based on
race, with people spread all over the Nation actually, being a member
of a new government, a new government that according to the supporters
and even the Hawaiian Web site indicates could lead to separation and
independence, that is not a step we ought to take. We need to nip this
in the bud. We need to end this now. We need not go down this road.
I so respect my colleagues from Hawaii. They are committed to their
people. They understand the concerns of their citizens. They want to
help them. They have a particular desire to be compassionate to the
Hawaiian people, the Native Hawaiians who have grown up on the islands
for many years. But I say with all due respect, in terms of the overall
National Government of which we are a part and the principles to which
we must adhere, that we should not go down the road creating an
independent sovereign entity based on race, as this bill would do.
Therefore, with reluctance and great respect for my colleagues who
support this legislation, I urge our Members to vote no.
I yield the floor.
The PRESIDING OFFICER. The Senator from Idaho is recognized.
Mr. CRAIG. Mr. President, I quote:
Hawaii illustrates the Nation's revolutionary message of
equality of opportunity for all, regardless of background,
color, or religion. This is the promise of Hawaii, a promise
for the entire Nation and, indeed, the world, that peoples of
different races and creeds can live together, enriching each
other, in harmony and democracy.
That is Lawrence H. Fuchs, Hawaii Pono, 1961, written at the time of
statehood.
Today, with that quote in mind, I rise in opposition to the Native
Hawaiian Government Reorganization Act of 2006. As my colleague just
mentioned, I respect both of my Hawaiian colleagues and the work they
have done to promote the culture and heritage of their native people.
At the same time, I must disagree with the underlying notion of this
bill.
The major argument in favor of this bill is the notion that Congress
should create a Native Hawaiian tribe in order to treat them the same
as American Indians and Native Alaskans. But Congress cannot simply
create an Indian tribe. Only those groups of people who have long
operated as an Indian tribe, lived as a separate and distinct
community--geographically and culturally--and have a preexisting
political structure can be organized as a tribe.
Hawaiians could never qualify as an American Indian tribe. First,
they do not have the preexisting political structure. Prior to
secession from the Republic of Hawaii, Hawaii operated under a monarchy
and not a tribe. Even if they were once organized in tribal
governments, they have had no type of Native Hawaiian government for
over 100 years.
Furthermore, in 1959, 94 percent of Hawaiians voted favorably to
approve the Hawaii Statehood Act and become American citizens.
At this time, there was an understanding that Hawaii's native people
would not be treated as a separate racial group and that they would not
be transformed into an Indian tribe.
Second, Native Hawaiians do not have an independent and separate
community. In fact, Hawaii is one of the most integrated and blended
societies in America. Hawaii is, in essence, America's great melting
pot. The creation of a Native Hawaiian race-based government entity
would drive a wedge into the now harmonious melting pot of the Hawaiian
culture. This bill is asking us to pretend that a tribe existed based
on the sharing of one drop of blood. We cannot simply reorganize a
tribe that never existed or create a new race-based government entity.
Furthermore, using Congress to create a tribe offends the very idea
of equal protection under the law. Creating a Native Hawaiian tribe,
especially one with no borders, undermines our constitutional rights.
The PRESIDING OFFICER (Mr. Coburn). The control by the majority has
expired.
Mr. CRAIG. Mr. President, I ask unanimous consent to proceed for 3
more minutes.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. CRAIG. I thank my colleagues for allowing that to happen.
This would establish a set of laws for Native Hawaiians and another
set of laws for non-natives, some of whom have lived on the island for
generations. This division would create a wedge, in my opinion, in the
Hawaiian community. It would create two sets of laws for a group of
people who live in the same neighborhoods, attend the same schools, and
go to church together. A Native Hawaiian could be subject to one set of
laws while his neighbor is subject to a different set of laws. I think
not.
The legislation offends a founding principle of this Nation: that all
men and women are created equal--we have fought wars and struggled
mightily down through the decades to make that happen--not men and
women with Hawaiian blood are equal, and those without Hawaiian blood
are equal. That is a confusing thought. As the Supreme Court stated,
``In the eyes of the government, we are just one race--it is
American.''
It is astonishing that Congress is considering creating a race-based
government in Hawaii given the tremendous progress that this Nation has
made, as I have mentioned, in eliminating race as a distinguishing
characteristic among its citizens. Presumptive color blindness and race
neutrality is now at the core of our legal system and cultural
environment and represents one of the most important American
achievements of the 21st century.
To create a race-based government would be offensive to our Nation's
commitment to equal justice and the elimination of racial distinctions
in the law. The inevitable constitutional challenge to this bill almost
certainly would reach the U.S. Supreme Court. We cannot simply
circumvent the Supreme Court's holding and strict scrutiny of race-
based tests.
The U.S. Civil Rights Commission issued a report earlier this year
that recommended that Congress reject this bill or any other
legislation that would discriminate on the basis of race or national
origin and further subdivide the American people into subgroups
accorded varying degrees of privilege. This bill would authorize a
government entity to treat people differently based on their race and
ethnicity. Again, this notion runs counter to the basic American value
that the government should not give preference to one race.
Our most violent internal conflicts, whether in the 1860s or the
1960s, have revolved around efforts to eliminate the laws of racial
distinctions and to
[[Page S5567]]
encourage a culture where all citizens become comfortable as a part of
the American race.
Creating a race-based government in Hawaii would create a dangerous
precedent that could lead to ethnic balkanization. This is a huge step
backwards in our American struggle to advance civil rights and to
ensure equal protection for all Americans under the law.
This journey is by no means complete, but this bill halts progress in
that very important journey and sends an entirely contrary message--a
message of racial division and racial distinction and ethnic separatism
and of rejection of the American melting pot ideal.
As many of our colleagues have said, and I repeat: We so respect our
Hawaiian colleagues, our Hawaiian friends; at the same time, we must
reject this idea that there is a separation spoken to in this law
unique to a race or a culture.
I yield the floor.
The PRESIDING OFFICER. The Senator from Hawaii.
Mr. INOUYE. Mr. President, I rise at this moment to join Senator
Akaka speaking in support of the measure before us this day.
This bill, which is long overdue, finally will have a chance for fair
consideration by this body. I hope this bill will finally begin the
process of extending a Federal policy of self-governance to Native
Hawaiians and will repair the injustices of the past.
As I sat here listening to the speeches, I must candidly say that I
was a bit disappointed that some of my friends who oppose this measure
have mischaracterized the history of my State.
Hawaii's history, as recounted by Senator Akaka, is well-documented.
After Captain James Cook arrived in Hawaii, other foreigners came to
the islands, often as laborers. Over the ensuing years, like other
Native people who carried no immunities to the diseases that
accompanied the waves of immigrants to their shores, the Native
Hawaiian population was reduced from estimates as high as several
hundred thousand people at the time of first recorded western contact
to a little over forty thousand. An 1854 smallpox epidemic, for
instance, took the lives of 6,000 people--almost 10 percent of the
population at that time.
Along with the decimating diseases, the social and economic
conditions of the Native Hawaiians deteriorated as well. The influence
of non-Native Hawaiians continued to grow. On January 17, 1893, the
Hawaiian Kingdom was illegally overthrown with the assistance of the
United States. The United States' involvement in the overthrow is
thoroughly documented in a report commissioned by President Grover
Cleveland.
My parents and grandparents lived through Hawaii's trying times. In
my generation, I was raised with an understanding that the Native
Hawaiian people had been wronged. It is for this reason that I, and the
other citizens of Hawaii, ask you to do the right thing for the Native
Hawaiian people.
Some of our colleagues have also questioned Congress' authority to
deal with Native Hawaiians. But after serving for 28 years on the
Committee on Indian Affairs, with approximately seventeen years as
either the Chairman or the Vice Chairman, I am very informed of the law
that governs the Federal relations with the aboriginal, native people
of the United States. As such, I want to assure everyone that Congress
possesses the authority to pass this measure.
Congress' authority over Indian matters has been repeatedly affirmed
by the United States Supreme Court. Its power is explicit in the
Constitution. It derives from the Indian Commerce Clause, Article I,
Section 8, clause 3, which vests Congress with the power to regulate
commerce with the Indian tribes. It also stems from the Treaty Clause,
which authorizes the Federal Government to enter into treaties with
other nations, as was done with various Indian tribes and the Native
Hawaiian government. Although the Constitution does not authorize the
Congress to make treaties, this provision does authorize Congress to
address matters with which the treaties made pursuant to that power
pertain.
In addition, the Court has found that Congress' power over Indian
affairs derives from the Property Clause, Article IV, Section 3, Clause
2, which vests the Congress with the authority to ``dispose of and make
all needful Rules and Regulations respecting the Territory or other
Property belonging to the United States.'' This provision was used by
Congress to set aside public lands for the use of Alaska Natives and a
colony, established for scattered, unrelated Indians. In Hawaii,
approximately 203,500 acres of land were similarly set aside for Native
Hawaiians.
And Congress' authority over Indian affairs also derives from the
Debt Clause and, like any other national government, its inherent
authority that is a necessary concomitant of nationality.
Congress' authority is broad and plenary. The Federal policy towards
the aboriginal, indigenous people has not been constant nor consistent.
But changing Federal policy is fully within the scope of Congress'
authority. Congress has exercised this authority to recognize the
inherent sovereignty of an Indian tribe, to terminate the government-
to-government relationship between the United States and an Indian
tribe, to establish a process for the reorganization of a tribal
government, as Congress did with the enactment of the Indian
Reorganization Act of 1934, and to restore tribes to their original
federally-recognized status.
In fact, after terminating the government-to-government relationship
with Indian tribes, Congress enacted legislation to restore the
sovereign status of some of those tribes. Even though the Indian tribe
did not exercise federally-recognized sovereign authority during the
time its relationship with the United States was terminated, this was
not a barrier to an exercise of Congress' power to restore the federal
recognition of the native government.
When Congress exercises its authority in this manner, it is not
``creating'' sovereignty nor is it ``creating'' a native government.
Native sovereignty preexisted the formation of the United States. For
the purpose of carrying on government-to-government relations, the form
of native government is irrelevant.
Congress established the Indian Reorganization Act of 1934 to provide
a process for the reorganization of other native governments. This Act
does not require that Native governments be organized as tribes. Senate
bill 147 proposes to provide a similar process for Native Hawaiians.
Although Native Hawaiians are not Indians nor are they organized as
Indian tribes, Congress is not precluded from dealing with them in the
manner proposed by the bill. The Constitution is a living document. The
authors of the Constitution intended that Congress' authority to deal
with Indian tribes include all aboriginal, indigenous people of the
United States, including American Indians, Alaska Natives and Native
Hawaiians, wherever they were located and however they were organized.
The Supreme Court has affirmed Congress' authority over other
aboriginal, indigenous people of the United States, regardless of
whether they are ``Indians'' or organized as a ``tribe,'' as those
terms are defined today. It is irrelevant whether the native peoples
are located within the original territory of the United States or in
territory subsequently acquired, whether within or without the limits
of a state. In pre-colonial times, the term ``Indian'' was defined to
mean ``native'' or ``the aboriginal, indigenous people'' and the term
``tribe'' was defined to mean ``a distinct body of people.''
Correspondence between James Monroe and James Madison concerning the
construction of what was to become the Commerce Clause make no
reference to Indian tribes, but they do discuss Indians. Clearly, our
founding fathers did not intend the term ``Indian tribes'' as used in
the Constitution to only extend to those pre-existing Indian tribes
that were dependent nations at the time of the framing of the
Constitution. Under this interpretation, Congress would have no
authority.
As Senator Akaka relayed, the first recorded western contact with the
aboriginal indigenous people of Hawaii was the arrival of Captain James
Cook in 1778. While recording his encounters with Native Hawaiians,
Captain Cook referred to Native Hawaiians as ``Indians.'' His accounts
reported that the Native Hawaiians ``lived in a highly organized, self-
sufficient, subsistent social system based on a communal land
[[Page S5568]]
tenure with a sophisticated language, culture, and religion.'' In other
words, Native Hawaiians were a distinct body of people.
The Court has upheld Congress' exercise of its broad, plenary
authority to recognize Indian tribes who were and are not Indians nor
were they organized as tribes at the time that Federal recognition was
extended to them. For instance, the Court affirmed Congress'
recognition of an Indian tribe that consisted of scattered, unrelated
individual Indians, who were forced onto a reservation or colony. Even
after the Supreme Court questioned whether the Pueblos of New Mexico
were Indians and found that they were not organized as tribes, the
Supreme Court upheld Congress' exercise of authority to recognize and
treat Pueblos as Indian tribes. Despite numerous opportunities to do
so, the Supreme Court has not questioned Congress' authority to treat
Alaska Natives as Indian tribes.
Whether the reference was to ``Indians'' or ``Indian tribes,'' the
Framers of the Constitution did not intend those terms to limit
Congress' authority, but rather intended those terms as descriptions of
the native people who occupied and possessed the lands that were later
to become the United States. When the Constitution was drafted, they
authorized the Federal government to enter into treaties with the
Indian tribes because they were considered independent sovereigns, not
dependent nations.
Any other interpretation would mean that Congress has been acting
illegally since the formation of the Union and that the Supreme Court
has wrongly decided the scope of Congress' authority.
The legal basis for the distinct status of the indigenous, native
people is their sovereignty, which preexisted the formation of our
country, over lands that became the United States.
This sovereignty is not created by Congress. This sovereignty did not
need to be retained through treaties with the Federal government.
Treaties are a mechanism for recognizing the inherent sovereignty of
another government.
Like the other Federally recognized Indian tribes, Native Hawaiians
are a distinct body of aboriginal, indigenous people who exercised
sovereignty over land that is now the United States. Like other Native
groups, the Federal government has a unique responsibility for Native
Hawaiians. On November 23, 1993, the United States apologized for its
role in the overthrow, acknowledged the historical significance of the
overthrow and the suppression of the inherent sovereignty of the Native
Hawaiian people, and committed to provide a foundation for
reconciliation between the United States and the Native Hawaiian
people. As such, Congress has assumed a special relationship with them.
Giving effect to the special relationship between the federal
government and the native peoples is not racially discriminatory. The
Supreme Court has sustained Congress' action towards Indian tribes as
constitutionally valid as long as our actions are reasonable and
rationally designed to further self-government and to fulfill our
unique obligation towards them.
Between 1826 and 1887, the United States entered into treaties with
the Native Hawaiian government. In 1893, we assisted in the illegal
overthrow of their government and extinguished the government-to-
government relationship between the United States and the Native
Hawaiian government. Now, we propose to establish a process that may
lead to the restoration of a Federal relationship with a Native
Hawaiian governing entity. This bill will authorize Native Hawaiians'
with more autonomy to undertake activities that they believe will
better their conditions and meet their other needs in the manner that
they deem best. It fulfills the Federal government's unique obligation
towards Native Hawaiians. As such, it is not racially discriminatory.
Some have suggested that the Supreme Court, in Rice v. Cayetano, has
ruled that the Congress does not have the authority to enact this bill.
This is incorrect.
In 1978, the citizens of Hawaii convened a constitutional convention
and proposed amendments to the State's constitution to afford Native
Hawaiians a means by which to express their right to self-governance
and self-determination. They did so by creating the Office of Hawaiian
Affairs, which is governed by a Board of Trustees. Because this was
intended to be the State counterpart to the Federal policy of extending
self-governance and self-determination to the aboriginal, indigenous
people, the citizens of Hawaii limited eligibility to vote for the
Office of Hawaiian Affairs trustees to Native Hawaiians.
The Office of Hawaiian Affairs is, however, a State agency. Thus,
when the Court considered this matter, it ruled that the voter
eligibility requirement violated the Fifteenth Amendment as a State may
not disenfranchise voters by limiting voter eligibility for a State
agency to one group of people. The Court expressly refused to address
whether Congress had the authority to treat Native Hawaiians as Indian
tribes. In passing, however, the Court mentioned that if the issue were
before the Court, it would look to whether Congress has treated Native
Hawaiians in the same manner as it has treated Indian tribes.
Congress has done that.
Hawaii became a territory of the United States in 1900 yet by 1910,
Congress began treating Native Hawaiians as Indians when it
appropriated funds for the ethnological research of American Indians
and Native Hawaiians.
In 1921, after receiving testimony from the then Secretary of the
Department of Interior who testified that the Native Hawaiians were our
wards and ``for whom in a sense we are trustees . . .,'' and who
explained that Congress had the right to use the same authority for
dealing with Indians to set aside lands for Native Hawaiians, Congress
did just that. Congress set aside land for Native Hawaiians as part of
its trust responsibility to them.
In 1938, Congress recognized certain Native Hawaiian fishing rights
in Hawaii National Park, in a manner similar to Congress' recognition
of retained tribal hunting, fishing, and gathering rights in some
national parks.
In the 1950s, Congress was terminating its government-to-government
relationship with some Indian tribes and delegating some of its
authority over Indian affairs to the various States, through such laws
as Public Law 83-280, which delegated certain Federal authority of
Indian affairs to some States. At this time, Hawaii was seeking to
become the fiftieth State. Consequently, Hawaii's admission to the
Union was conditioned on its administration of the public trust
established pursuant to the Hawaiian Homes Commission Act.
In 1972, a Native Hawaiian employment preference was enacted in the
same manner that Congress enacted Indian preference laws. The Indian
preference law was subsequently upheld by the Supreme Court as
constitutionally sound and consistent with laws designed to preclude
discrimination in the workplace.
Notably, this was the same year that the Equal Employment
Opportunities Act of 1972, which prohibited discrimination in the
workplace, was enacted into law. I mention this for a reason. Congress
is an intelligent, thoughtful body. It is highly unlikely that Congress
would have adopted one law prohibiting discrimination in the workplace
while at the same time enacting a Native Hawaiian employment
preference, unless Native Hawaiians were exempt from the broader bill
because Congress treats them in the same manner that Congress treats
Indian tribes.
Only two years after the United States Supreme Court held that Indian
preference laws were not racially discriminatory because of Congress
unique responsibility towards Indian tribes, a second Native Hawaiian
employment preference law was enacted. Clearly, Congress considered
Native Hawaiians as having the same status as Indian tribes.
There are many more laws like these but I will not list all of them.
In total, however, over 160 laws concerning Native Hawaiians have been
enacted into law. Within the last five years, we have enacted
additional laws, including laws that have legislatively reaffirmed our
trust relationship with Native Hawaiians. Under the theory of those
opposing the bill, all of these laws are illegal.
Although Senator Akaka explained the process established by the bill
in detail, I want to briefly reiterate some of his comments. This bill
establishes a
[[Page S5569]]
process for the reorganization of a Native Hawaiian governing entity.
The process is similar to processes established for the recognition of
other aboriginal, indigenous people.
Upon enactment of the bill, a Commission will be created to determine
whether those who voluntarily choose to participate in the Native
Hawaiian governing entity meet the eligibility criteria. The Commission
will prepare a roll, which the Secretary must certify. An Interim
Governing Council will be established with no powers except to prepare
organic governing documents for the approval of those listed on the
certified roll. Once this has been approved by the membership, it must
be certified by the Secretary of the Department of the Interior.
If, and when, the Secretary certifies the organic governing
documents, elections for Native Hawaiian government officials must be
held in accordance with the organic governing documents. At this point,
the Native Hawaiian governing entity still has no power. Instead, the
Native Hawaiian governing entity must negotiate with the State of
Hawaii and the Federal government for any powers and authority as well
as other rights.
This will be a long, thorough process that will take years to
complete. And this will not be the last time that the Congress will
have an opportunity to address the power and authorities of the Native
Hawaiian governing entity. Bills will need to be introduced in the
Congress for the enactment of implementing legislation. They will be
referred to the relevant committees of jurisdiction of each House.
There will be votes in each body to approve implementing legislation
and the President will have to sign such legislation into law.
A similar process will be required for changes to State law. The
citizens of Hawaii, through their State representatives, will have an
opportunity to be involved in any changes in State law. Any changes to
the State's constitution must be submitted to the voters of the State.
Before closing, I want to address some misconceptions regarding this
measure and clearly inform my colleagues about what this bill does and
does not provide.
This bill does not create sovereignty or extend Federal recognition
to the Native Hawaiian governing entity upon passage of this bill.
Instead this bill establishes the process that I outlined. As I
discussed earlier, any sovereignty by the Native Hawaiian governing
entity, if and when it is recognized, is inherent and preexisted
Hawaii's inclusion into the Union.
Any governmental powers and authority that the Native Hawaiian
governing entity will exercise must be negotiated with the Federal and
State governments.
This bill does not extend jurisdiction to the Native Hawaiian
governing entity over non-Native Hawaiians. Any jurisdictional
authority must be negotiated between the Native Hawaiian governing
entity, the State of Hawaii, and the Federal government.
Any jurisdiction that may be granted through the negotiations will be
within the boundaries of the State of Hawaii, not over the United
States. Critics of the bill confuse the eligibility roll with the
potential jurisdiction of the governing entity. Like other native
governments in the United States, anyone meeting the eligibility
criteria defined in the bill or the organic governing documents,
regardless of where they live, are eligible for membership in the
governing entity.
The bill prohibits the application of the Indian Gaming Regulatory
Act, which is the only Federal authority for the exercise of gaming by
Indian tribes. Additionally, the State of Hawaii is one of only two
states that criminally prohibits gaming.
The bill expressly provides that Native Hawaiians will not be
eligible for Indian or Alaska Native programs. It is unnecessary to
include Native Hawaiians in other programs as Congress has already
established programs specifically for them.
The cost of the bill is minimal. The Congressional Budget Office
estimates that the bill will cost $1 million for fiscal years 2006
through 2008, and less than $500,000 per year thereafter. The Committee
on Indian Affairs has also been informed that the enactment of this
bill will not affect direct spending or revenues.
I want to make it clear to all of my colleagues that this bill does
not propose anything that we have not already done for Indian tribes.
Years ago, Congress recognized that it has a trust obligation to the
Native Hawaiians. Congress has treated Native Hawaiians in the same
manner as it has dealt with Indian tribes. It is time that Congress
formally extends its policy of self-government and self-determination
to Native Hawaiians.
Mr. President, I want my colleagues to know that this bill will unite
Hawaii. Senate bill 147, already has the broad support of both
Republicans and Democrats in Hawaii. It is now time to reach out and
correct the wrong that was committed so many years ago. I hope that my
colleagues will also provide their support by voting for this bill.
As a member of the territorial senate at the time of statehood, and
as former majority leader of the house, I was privileged to be involved
in discussions and decisions reached between the Government of the
United States and the government of the territory of Hawaii. Moreover,
as our State's first Member of Congress, I was actively involved in the
discussions and agreements between the Government of the United States
and the government of the State of Hawaii.
My parents and my grandparents lived in Hawaii through Hawaii's
trying times. My grandparents were immigrants from Japan. In my
generation, I was raised with an understanding that the Native Hawaiian
people had been wronged. This is a part of history that very few of my
constituents are fully aware of. But my mother, when she was at the age
of 4, lost her father who was working in the fields of the plantation.
She had lost her mother at the time of childbirth, so she found herself
an orphan at a very early age. But fortunately, a Native Hawaiian
couple learned about this, came forward to the plantation village, and
took her by the hand and adopted her. And for years she lived as a
Hawaiian with the Hawaiian family, and she never forgot that.
For many reasons, including that, I and other citizens of the State
of Hawaii ask all of my colleagues here to do the right thing for the
Native Hawaiian people. Some of our colleagues have questioned
Congress's authority to deal with Native Hawaiians, but after serving
for 28 years on the Committee on Indian Affairs and approximately 17
years as either the chair or the vice chair, I believe most humbly that
I am sufficiently informed of the law that governs the Federal
relations with the aboriginal native people of the United States. There
is no question that Native Hawaiians are aboriginal, and they are
native and indigenous. They were there before the first White man came.
They were there before the first Americans came.
Based on my decades of study and experience, I would like to assure
my colleagues that Congress does possess the authority to pass this
measure.
We speak of the special relationship between the Federal Government
and the native peoples, and some have suggested that this was racially
discriminatory.
Mr. President, history shows that Native Hawaiians are good and
patriotic Americans. The people of Hawaii are good and patriotic
Americans. If you look at the records of World War II and all the wars
thereafter, including the present one in Iraq, you will find a
disproportionately large number of men and women from Hawaii serving in
uniform and standing in harm's way for the people of the United States.
In fact, for this small, little State, with about the smallest
population, we have more Medals of Honor on a per capita basis than any
other State. Our government recognizes the patriotism of Native
Hawaiians and the people of Hawaii. In fact, the first Native Hawaiian
in the Vietnam war to receive the Medal of Honor was--yes--a Native
Hawaiian, and he was one of the first in the Nation to do so. They are
good American citizens.
This bill, even if it becomes the ultimate law of this land, will not
change the situation. Native Hawaiians will be subject to every
provision in the Constitution of the United States. That is the fact.
They will be subject to the laws of the State of Hawaii and the United
States. They will be subject to
[[Page S5570]]
the laws of the county of Hawaii. If any changes are made--for example,
if we decide, as we did with many Indian nations, to give them the
power to arrest--if someone goes speeding through the streets--that
power has to be negotiated and granted by the supersovereign, the
county to the Indian tribe. It does not come naturally.
The Native Hawaiian government, if you want to call it such, will not
have the authority to establish its own army. It will not have the
authority to coin its own currency. Yes, they can set up businesses,
establish schools if they wish to, but they will never, under this
bill, pass any measure that will be in contravention with the
Constitution of the United States or the laws of the United States.
This bill does not secede the State of Hawaii or any part thereof
from the United States. The lands that we speak of are lands that have
been set aside, not by us, but by the Government of the United States
in 1920. In 1920, the Members of Congress, without the urging of Native
Hawaiians, without the urging of the people of Hawaii, finally came to
their senses and realized that the takeover had been illegal, and that
Native Hawaiians were indigenous, aboriginal people of the territory of
Hawaii at that time.
So, on their own initiative, this Congress established a law to set
aside lands which they called the homestead lands. And those qualified,
50 percent Hawaiian blood, were placed on these lands. It is still
there, and Native Hawaiians still live in those places. If they ever
have this law in the books, these lands will become the land base of
this new entity.
They are not taking away anything from the people of Hawaii. They are
not taking away anything from the Government of the United States. They
will continue to pay taxes. They will continue to put on the uniform of
the United States. They will continue to stand in harm's way.
I want Congress to know that, if anything, this bill will unite the
people of Hawaii. This bill has the broad support of Republicans and
Democrats in the State. Somewhere in this gallery is the Governor of
Hawaii, the Honorable Linda Lingle. And she is a Republican. She
supports this measure.
The counties of Hawaii, every one them--Oahu, Kauai, Maui and
Hawaii--would support this measure. The State of Hawaii legislature,
the House and the Senate, unanimously support this measure.
We have heard results of polls. We are politicians. We know all about
polls. I can set up a poll myself and suggest that 99 percent of the
people of Hawaii support the war in Iraq, and we know that is wrong.
Yes, we can set up our own polls.
But I can tell you the legislature supports it, the county
governments support it, the Governor does, and all Members of the
congressional delegation. I don't know why people would say that the
people of Hawaii do not support this measure.
I think it is about time that we reach out and correct the wrong that
was committed in 1893. Yes, at that time the representative of the
people of the United States directed a marine company on an American
ship to land and take over the government. They imprisoned our queen.
No crime had been committed. When the new government took over and
turned itself over to the government of the United States and said,
Please take us in, the President of the United States was President
Cleveland at that time. He sent his envoy to Hawaii to look over the
case. When he learned that the takeover had been illegal, he said this
was an un-American act and we will not take over. The queen is free.
I am a proud American. I am glad that we are part of the United
States of America. Senator Akaka and I took part in World War II. We
put on the uniform. He served in the Pacific. I served in Europe. We
would do it again. I know our people will do it again.
I wish to discuss the report on the Native Hawaiian Government
Reorganization Act which was released by the United States Commission
on Civil Rights on May 4, 2006 and the ill-founded reliance on the
report by some of my colleagues. It is important to note that the
measure before us is supported by leading civil rights organizations,
such as the Leadership Conference on Civil Rights and the National
Congress of American Indians. There are many more but in the interest
of time, I will only note that I am more than willing to provide any
Member with a more detailed list of leading civil rights organizational
support for this measure.
With respect to the Commission's report, I urge my colleagues to
thoroughly examine the report and the proceedings leading to it. I say
this because the majority's report lacks credibility--both procedurally
and substantively. I am confident that once my colleagues learn of the
serious procedural and substantive flaws of the report, they will join
me in rejecting the Commission's report and supporting S. 147, the
Native Hawaiian Government Reorganization Act of 2006.
The first point that my colleagues need to consider is that this
report is not even based on the measure that will be before us. During
the Commission's January briefing, the Commissioners were provided with
a copy of the Substitute Amendment that was publicly available since
last fall and that Senator Akaka recently introduced as a separate
measure. It is this language on which we will vote. Yet, even though
the Commission was informed of this, the Commission based its
recommendation on the bill ``as reported out of committee on May 16,
2005,'' which is substantially different from the substitute amendment.
Perhaps some think this was an oversight on behalf of the Commission
but I assure you--it was not. During the Commission's May 4, 2006
meeting, Commissioner Taylor specifically asked to which version of the
bill this report referred. After a discussion on the record in which it
was readily apparent that the Commissioners had no idea which version
the report was referring to, the Commission had to recess for 10
minutes so that staff could determine to which version the report was
referencing. Then, after calling the meeting back to order, the
Commission stated that the report pertained to the version as reported
by the Committee on Indian Affairs, ignoring entirely the substitute
amendment, which they had been informed would be the measure considered
by the Senate.
Perhaps some may be thinking--what difference does it make? Let me
assure you, the differences between the version reported by the
Committee on Indian Affairs and the substitute amendment are
substantively different. In fact, the measure that will be before us
reflects several weeks of negotiation between the administration and
congressional Members to address concerns raised by the administration.
Before moving on to the substantive flaws of the Commission's report,
I want to point out that one Commissioner filed an amicus brief in Rice
v. Cayetano without ever publicly disclosing that involvement or
recusing herself from the Commission's proceedings. Apparently, actions
like these are par for the course for this Commission. It is actions
similar to these that led to the recent findings of the Government
Accountability Office that the Commission lacked procedures to ensure
objectivity in its reports.
The Commission's majority report also suffers from serious
substantive flaws. Unlike the careful, thoughtful analyses contained in
the dissenting opinions, the majority report is devoid of any analysis
of the underlying bill or arguments. Instead, the so-called ``report''
is merely a summary of the briefing held in January, a one sentence
recommendation, and copies of the written testimonies provided during
the January briefing. It is nothing more than ``he said this and she
said that.'' Nothing in this document explains why one argument was
rejected and another one accepted. I believe it is because the
commissioners know what we know--the law is on our side.
Although this is apparently consistent with the way this Commission
does business, it is unacceptable. The Government Accountability Office
issued a report last week specific to the Commission and recommended
that the Commission should strengthen its quality assurance policies
and make better use of its State Advisory Committees. More
specifically, the Government Accountability Office found that the
Commission lacked policies for ensuring that its reports are objective.
It also found that the Commission lacks accountability for some
decisions made in its reports because it lacks documentation for its
decisions. A review of
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the Commission's report on Native Hawaiians illustrates that this lack
of accountability is clearly evident in this instance, for the
Commission provides no rationale for its finding on S. 147.
Another flaw with the Commission's recent report is that the
Commission ignored two previous reports on related issues by the Hawaii
State Advisory Committee. The Government Accountability Office
acknowledged that the State Advisory Committees are the eyes and ears
of the Commission. It also found that while the Commission does not
have policies to ensure objectivity for its own documents, the
Commission does have quality assurance policies in place for State
Advisory Committee products, including a policy to incorporate
balanced, varied, and opposing perspectives in their hearings and
reports. The Hawaii State Advisory Committee heard from numerous
witnesses and spent substantial time preparing two articulate, balanced
reports on Native Hawaiian issues relevant to the measure before us.
Yet the Commission ignored these reports. Imagine reports from the
State Advisory Committee in your respective State--the entity with the
most knowledge of local issues, that is the entity most in touch with
the local communities, and that has quality assurance policies--not
even being consulted or informed about a briefing on an issue that only
impacts your State.
Because the Commission's recommendation was based on a version of the
bill that is not before us, is void of any analysis and is not
supported by Supreme Court case law, it is difficult to address any
arguments that may have influenced the Commission's decisions. Thus, I
will take this opportunity to clarify some misconceptions that some of
the Commissioners appear to possess.
First, this matter is not race-based as the Commission's
recommendation implies. Instead, the Commission appears to have a
fundamental misunderstanding of Federal Indian law. It is undisputed
that the Supreme Court has upheld Congress's plenary authority over
Indian tribes, including those aboriginal, indigenous peoples who
exercised control over land that comprise the United States even if
those peoples were not called Indians, were not organized as tribes,
and did not have a government at that time.
I am confident that if challenged, this measure will be upheld. For
as then Attorney John Roberts, now Chief Justice Roberts, stated during
oral argument in Rice v. Cayetano, ``The Framers, when they used the
word Indian, meant any of the Native inhabitants of the new-found
land'' and that Congress's ``power does, in fact, extend to Indians who
are not members of a tribe.''
Second, it is absurd that there are some who think that because
Congress delegated some authority to the Secretary of the Department of
the Interior to develop regulations to administratively recognize a
group of people as an Indian tribe, Congress's power to exercise its
own authority is now bound by those regulations. Let me remind
everyone--the Congress is not subject to an agency's regulations.
Congress still possesses the power to restore recognition to an Indian
tribe and we have used this authority repeatedly without first
determining whether a group met the criteria set forth in the
Secretary's regulation.
I thank the Chair for allowing me this opportunity to educate my
colleagues about the true impact of the Commission's report on this
matter. I encourage my colleagues to examine the transcript of the
January briefing and the May meeting, the report with the dissenting
opinions, as well as the recent Government Accountability Office Report
on the Commission. I am confident that after doing so, my colleagues
will understand that any reliance on this report is misguided.
Mr. President, as Congress has done for many other Indian tribes,
this measure merely sets up a process to formally extend the Federal
policy of self-governance and self-determination to Native Hawaiians.
This bill is about fairness and justice for Native Hawaiians--Native
Hawaiians will finally be afforded the same respect that the Federal
Government affords to other Native Americans. Given that Congress has
already enacted over 160 Federal laws for the benefit of Native
Hawaiians, there will be no harm to other Native Americans and equally
important, there will be no negative effects on the other citizens of
Hawaii.
There are some who claim that this bill is race-based and will divide
Hawaii because of race-based preferences stemming from this measure.
This is not true. This bill is not based on race and those who make
this claim do not understand the people or history of Hawaii. As I
said, in 1893, the United States participated in the illegal overthrow
of the Kingdom of Hawaii, which resulted in longstanding issues in
Hawaii that need to be addressed. This measure will ensure those issues
are addressed fairly and equitably. It is because this measure starts
the process of healing old wounds and bringing all of Hawaii's citizens
together that the vast majority of Hawaii's citizens support passage of
this bill.
I ask my colleagues to ignore the rhetoric and to look at the facts:
The entire Hawaii Congressional delegation supports, and is actively
working on, passage of this bill. Our distinguished colleagues in the
House, Congressmen Abercrombie and Case, have introduced a companion
measure, and both testified before the Senate Committee on Indian
Affairs in support of this bill and its importance to Hawaii. As
Congressman Case stated, this bill is ``the most vital single piece of
legislation for our Hawaii since Statehood.''
Hawaii's Republican Governor supports the bill and has stated that
``this bill will be a unifying force in Hawaii'' and that it is ``vital
to the continued character of the State of Hawaii.'' Both Hawaii's
State House and Senate have repeatedly and overwhelmingly approved a
resolution in support of this bill. We were elected by Hawaii's
citizens to represent their interests and we believe that this measure
is in their best interests. We would not support a bill that would
racially divide the people who elected us into office. Trust that we
have the best interests of all of Hawaii's citizens in mind.
Beyond Hawaii's elected officials, Hawaii's two largest newspapers
have written editorials in support of passage of this bill or
condemning allegations that this bill is racially discriminatory. The
Honolulu Advertiser recently stated ``this measure forges a middle
path, the most reasonable course toward resolution--if only Congress
would give it a shot.'' The people of Hawaii support it because, as the
Advertiser recognized, ``Federal recognition would help chart a course
for the difficult but necessary process of resolving festering disputes
and in healing the breach caused by the overthrow of the Hawaiian
monarchy.''
Hawaii's business community, including the two largest banks, support
passage of this bill. The vast majority of Hawaii's citizens support
passage of this bill. Given this diverse and broad level of support, I
do not understand how any of my colleagues can oppose passage of this
measure by claiming that it will divide Hawaii based on race.
Instead, I urge my colleagues to join me in supporting this measure
as it is the fair, just thing to do and all of Hawaii's citizens will
benefit from this measure when the longstanding issues will be finally
be put to rest. Without this measure, without your support, those
issues will remain unresolved.
Mr. President, as many of my colleagues know, S. 147 does nothing
more than to establish a process to formally extend the same Federal
policy of self-governance and self-determination that has been extended
to other Native Americans to Native Hawaiians. When one looks at the
impact that this policy has had on other Native Americans, it is clear
that this policy will benefit not only Native Hawaiians but also all of
Hawaii's citizens.
Since the 1970s, the Federal Government has had a policy of self-
determination and self-governance for Native peoples. The success of
this policy has been demonstrated over and over and it is not stopping.
Every day, we see improvements in native communities as a result of
this policy. Every day, we see State and local communities benefiting
from Native Americans exercising self-governance. It is time that
Native Hawaiians, and Hawaii, also benefit from this policy.
While Native Hawaiians are not Indians nor is there Indian Country in
Hawaii--nor will there be with passage of this measure--the experience
of other Native Americans since the Federal
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Government adopted a policy of self-governance for Indian tribes is
informative. Since implementation of the Federal policy of self-
determination, other Native Americans have seen a revitalization in
their native languages and culture. Because of this policy, other
Native Americans have experienced higher educational achievement,
stronger economies, better mental and physical health and less reliance
on social programs. Although other Native Americans still have a long
way to go, the policy of self-governance and self-determination has
repeatedly been called the most successful Federal policy for Native
Americans. I am confident that Native Hawaiians will have a similar
experience and that all of Hawaii's citizens will receive benefits.
Self-governance is critical to maintaining Native Hawaiian culture,
language and identity. Native Hawaiians were affected by the various
Federal policies the United States had towards Indian tribes. So like
other Native Americans, Native Hawaiians were prohibited from speaking
their native language and practicing their culture. Native Hawaiians
experience similar social characteristics--often ranking the highest in
the least desirable categories and the lowest in the most desirable
categories. They suffer from some of the highest rates of obesity,
diabetes, high blood pressure, heart disease, and other health
disparities. They experience the highest rates of poverty in the State
of Hawaii and have some of the lowest educational achievement. Native
Hawaiian youth suffer from high rates of depression and are more likely
to attempt suicide than other youth in Hawaii. Although it will not
happen overnight, Native Hawaiian self-governance will reverse these
trends. Testimony before the Indian Affairs Committee indicated a link
between teen suicide and depression and the lack of language and
culture in other native communities. Testimony also indicated that when
Indian tribes exercise self-governance and take steps to regain or
incorporate their language and culture into everyday life, mental
health issues decrease.
Preserving and revitalizing native language, culture and identity
leads to stronger personal identity and cultural awareness. Native
self-governance will lead to culturally appropriate physical and mental
health programs, as well as more relevant education curriculum, for
Native individuals. This, in turn, will lead to better health, higher
academic achievement, strong native leadership, increased employment,
less poverty and decreased dependence on Federal and State social
programs. Self-governance will ensure that Native Hawaiians retain
their dignity.
Consequently, all people of Hawaii will benefit. Decreased reliance
on social programs, fewer children needing remedial education, and more
preventative, culturally appropriate health programs will result in
less funding needs over the long term. But this is not all. Hawaii is
already full of rich, diverse cultures which are celebrated throughout
the year but, with this measure, all of Hawaii will be able to
celebrate an ever stronger native culture. Non-natives will learn more
about the islands based on the traditional knowledge of Native
Hawaiians gained over centuries of island occupation. Higher achieving
children will no longer have to wait for their counterparts to catch
up. Instead of remedial education classes, there will be more rigorous,
challenging classes for our youth. Visitors already come to Hawaii to
admire and appreciate the unique Hawaiian culture; with this measure, I
am confident even more will come to experience the stronger, richer
Native Hawaiian culture.
I invite all of my colleagues to Hawaii to experience our unique
culture, diversity and spirit of aloha. This bill will enhance Native
Hawaiian self-governance while benefiting all of Hawaii's citizens.
This is why I am proud to cosponsor this legislation. This is why our
distinguished House colleagues, Congressmen Abercrombie and Case have
introduced a companion measure. I respectfully urge my colleagues to
help Hawaii by supporting S. 147.
I just hope my colleagues will not look upon Native Hawaiians as
those who are trying to get out of the United States. They are not. We
are just trying to tell them: Yes, we recognize the wrong we have
committed. Therefore, use the lands that we have provided you. Set up a
government. But this is what you may do. You may set up your schools,
you may set up businesses. What is wrong with that? We are not asking
to establish a government in there that will put up a fence and keep
everyone out. That government will not establish an army to attack us.
This is the American thing to do; the least we can do. And,
incidentally, the National Congress of American Indians, representing
the Indian nations of this Nation, support this measure. Alaskan
natives, Eskimos, support this measure.
Granted, there are those who oppose this measure. But I just hope
that they will look into their hearts and look into the hearts of
Native Hawaiians. They are good people. They just want to know that
someday they can tell their grandchildren the wrong that was committed
in 1830 has been rectified.
I am certain my colleagues will do so. I thank you.
The PRESIDING OFFICER. Who yields time?
Mr. INOUYE. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. AKAKA. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. AKAKA. Mr. President, I thank my dear colleague from Hawaii, the
senior Senator, who has spoken from the heart about our bill and about
what it means to our people in Hawaii, the unity of support that is
there in Hawaii and also the support that is here nationally.
He mentioned NCAI, the National Congress of American Indians. He
mentioned the AFN, the Alaska Federation of Natives. Also, the American
Bar Association has supported our bill. These are national
organizations that have studied it and have considered this bill to be
worthwhile.
As I mentioned in my statement, this bill has been reviewed by the
Departments of Justice and the Interior, the White House and the
administration. They have made clarifications that we will include in
our amendments and in our substitute amendment.
This is a bill that does not have anything to do with starting a
government that would be able to do what it wants. This governing
entity will be structured so that it can deal with the problems of the
Hawaiian people and will give them a seat at the table. It will give
them an opportunity to negotiate whatever they decide.
I should tell you, those who have spoken in opposition to this bill
are good friends that we respect--and we will continue to do that--who
have other reasons to oppose our bill. I do respect them very deeply.
But our bill is one that will help the Hawaiians to deal with their
concerns. When it was stated that I had mentioned that they could
secede, the question that was asked me was whether that could happen. I
pointed out that to secede, the Hawaiians would have to take it to this
governing entity and this entity would decide whether they should take
this to be negotiated with the State government and then with the
Federal Government.
Let's say they do decide to secede as an entity. I don't think the
State government, with the State laws, would agree to that. It has to
be negotiated.
And let's say if--and I know it won't happen--the State of Hawaii
agrees to that. Then it has to go to the Federal Government. So this is
all within the law.
I have spoken to those in Hawaii who want Hawaii to be independent. I
have told them you can use the governing entity to discuss it. This is
what I meant. They can bring these issues to the governing entity and
the governing entity will make a decision as to independence or
returning to the monarchy. But all of this would be within the law of
the United States, as mentioned by my senior Senator. It will be within
the Constitution of the United States. But this gives the Hawaiians a
governing entity to deal with their concerns and negotiate them on the
State level as well as the Federal level.
Also, in the substitute amendments that we will be offering, it does
have the clarifications from the administration as well.
So I rise to urge my colleagues to permit us to bring it to the
floor, to
[[Page S5573]]
permit us to do that through cloture and then to let the Senate decide
about our bill.
As I said, the United States of America is a nation that has
consistently tried to keep liberty and justice alive and well. This is
an opportunity to do that.
I urge my colleagues to consider their vote, give us their votes on
cloture so we can then bring it to the floor and discuss it further.
Mr. President, how much time do we have remaining?
The PRESIDING OFFICER. The Senator has 1 minute.
Mr. AKAKA. Mr. President, I just want to mention on the sovereignty
rebuttal, the Federal policy of self-governance and self-determination
allows for a government-to-government relationship between indigenous
people. This is not new. It exists right now between the United States
and 556 tribes, 556 native governments. The continued representation of
this bill as an unprecedented new action is just plain wrong.
With all due respect to my colleagues, as I said earlier, Native
Hawaiians are proud to be Americans. Native Hawaiians, however, are
indigenous peoples and Congress has the authority to recognize
indigenous peoples.
I yield.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. SUNUNU. Mr. President, I rise in opposition to this legislation.
I do, however, respect the goals and the concerns that have been
expressed by the Senators from Hawaii and their supporters. I certainly
agree with the language used by Senator Inouye to describe the people
of Hawaii. They are indeed good people. They are indeed great patriots.
I think no one better exemplifies the patriotism, the support for
American ideals, and the commitment to our country, than the two
Senators from Hawaii, each in their service to this institution, their
service to our country, and their service to our country's military.
Senator Inouye discussed the need to right wrongs, and how that was
one of the objectives of this legislation. Even if we concede the
importance of righting wrongs, we can argue, as I do argue, that this
is the wrong way to go about that.
This bill does not create a sovereign state or a sovereign entity.
That point was made by both Senators in their remarks. However, we
cannot escape the fact that the legislation as written, on page 51,
does describe very specifically the objective for Native Hawaiians to
have an inherent right of self-determination and self-government. That
clearly suggests a goal, whether it is short-term or long-term, of
establishing self-governance; of establishing independence in some
shape or form.
If this isn't an objective, then certainly it ought not to be
included in the legislation.
This is not a question of tribal recognition. I think it is a mistake
to make that analogy because there are very specific requirements for
tribal recognition, and they are not met in this case. Therefore, that
concern is misplaced.
Most fundamentally, and I think most problematically, this
legislation does create a very separate and distinct governing entity,
and the participation within that governing entity is based upon racial
and ethnic classification. We have to ask ourselves whether this is a
principle or a policy which the American people would support, whether
it is one which will further our shared goals as Americans. I believe
the answer is no. It is a mistake to create two distinct privileges for
participation in governance at any level that is based solely on one's
racial or ethnic background.
The governing power of this new entity, the Native Hawaiian governing
entity, is not small nor trivial. Again quoting from the legislation:
Among the general powers conferred on this governing entity
are the power to negotiate or engage in negotiations designed
to lead to an agreement addressing such matters as the
transfer of land, natural resources and other assets, and the
exercise of civil and criminal jurisdiction.
These are not small matters. I believe the suggestion that this is a
modest entity, one with only very limited powers, is mistaken.
The proponents of the legislation might argue that there are
intervening steps required on the part of the State government or the
Federal Government to validate these negotiations. That doesn't change
the fact that this governing entity has real power to negotiate that is
not given to any other entity, and that the participation in that
governance is based solely on one's ethnic or racial background. I
believe that simply is not justified.
To the extent there are constitutional questions brought to bear,
they ought to be focused on due process, on whether this restriction
that one only participates in this governing entity if one has a
certain racial or ethnic background is an unfair limitation on an
individual American's right to participate in the electoral process.
Even if that were not a factor, balkanizing Americans, dispensing
political power, or dispensing political recognition on the basis of
ethnic or racial background is a mistake. It is bad precedent. It
emphasizes differences that we might have. I believe it runs the risk
of disenfranchising certain Americans and takes us in the wrong
direction.
If there are wrongs that need to be set right, we should have a
debate about what those actions were and what specific steps ought to
be taken to address them. However, this is not the right vehicle. This
is not the right approach. This does not send the right message.
In dealing with cases that have come before the Supreme Court which
dealt with this question, the Supreme Court cited the 15th amendment,
which forbids discrimination in voting based on race or ethnic
background.
To quote from that decision, the Court said:
One of the reasons race is treated as a forbidden
classification is that it demeans the dignity and worth of a
person to be judged by ancestry instead of by his or her own
merit and essential qualities. An inquiry into ancestral
lines is not consistent with respect based on the unique
personality each of us possesses, a respect the Constitution
itself secures in its concern for persons and citizens . . .
[To do so would be] odious to a free people whose
institutions are founded upon the doctrine of equality.
It is an approach that runs contrary to those fundamental goals and
objectives which are contained in the 15th amendment.
I think on a more personal level, it is worth understanding the
impact this can have on an individual.
I wish to close by referring to several comments which were provided
by residents of Hawaii themselves before the Civil Rights Commission.
Quoting from one letter:
. . . It is appropriate to say that I am of Hawaiian,
Caucasian and Chinese descent only because it shall be noted
that I am a descendent of the indigenous peoples of Hawaii
and do not support the Akaka bill . . . If [the Akaka bill]
comes to pass, I will no longer acknowledge my Hawaiian
heritage as I will be forced to choose on which side of the
fence to stand. I will choose the Anglo-American tradition of
the right to life, liberty, property and the pursuit of
happiness. This will prevent me from recognizing all that is
Hawaiian in me. I consider the Akaka bill to be a proposal to
violate my rights . . .
This is a resident of Hawaii testifying before the Civil Rights
Commission. He wrote:
. . . I am writing to ask for the civil rights commission
to oppose the Akaka Bill on the grounds that it will divide
our state among racial lines . . . I am of native American
blood (Nez Pierce Indian) but cannot be considered eligible
for benefits such as those desired by native Hawaiians . . .
The Akaka Bill will destroy our way of life in Hawaii . . .
The third letter quoted in that report to the Civil Rights
Commission:
. . . I am a descendant of both: Kamehameha the Great, who
united the islands and people, natives and non-natives and
made Hawaii a model for the world: and the Mayflower pilgrims
whose ideals of individual freedom and responsibility and
self-reliance shaped the most inclusive and widely shared
system of government in history: American democracy . . . The
Akaka Bill would dishonor the unity and equality envisioned
by Kamehameha the Great and the ideal of one nation,
indivisible, composed of indestructible states, envisioned by
the U.S. Constitution . . .
These are individual opinions of residents of Hawaii who have their
own personal history and perspective. We shouldn't make decisions in
Congress or anywhere else based on just anecdotal information, but I
think they do reflect the difference of opinion, the difference of
perspective, and the natural concerns possessed by even those who are
supposed to benefit from this legislation because of the way the bill
[[Page S5574]]
treats people--not based on the content of their character, not based
on their individual rights as Americans, but based on their particular
ethnic or racial background.
If we can move away from the balkanization, classification, and
unique treatment of people based on racial-ethnic background and move
toward the consideration of every individual based on their character,
their integrity, and their commitment to our shared ideals, I believe
we will be a stronger and a better country.
Thank you, Mr. President.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. Mr. President, I rise to speak on this bill with some
trepidation, because, as I heard the Senator from Tennessee say earlier
as I was watching the debate from my office, everyone in this Chamber
has enormous respect and affection for the Senator from Hawaii. We
understand how important this issue is to him and believe he is making
his arguments in the best of faith.
I must say, though, that it is staggering to me to think of how
important the issues are that underlie this bill. This is not a bill
which just affects the State of the Senators from Hawaii; this is a
bill which would potentially affect what it means to be an American.
One of the defining characteristics of this great country in which we
live is that no matter where we come from, no matter what our ethnic or
racial heritage might be, no matter where we were raised, once we
pledged allegiance to the United States of America, we became an
American, someone who believes in the ideal of America's values,
including equal justice under the law. So the very concept that people
would be treated differently based upon whether they are Native
Hawaiians or whether they came from Ireland or whether they are some
other ethnic or racial group is anathema to what it means to be an
American.
This bill, it has been observed, would create a race-based and
racially separate government for Native Hawaiians. It has been observed
by the U.S. Supreme Court in the year 2000 in the Rice v. Cayetano
lawsuit that this legislation is actually addressed to limit
participation in a government based on one's consanguinity or
bloodline, is in effect a proxy for race. What we are talking about is
participating in the benefits of being a Native Hawaiian based upon
race and racial differences rather than saying to anyone and everyone
that America remains a nation where anyone and everyone, based upon
their hard work, based upon their willingness to try to accomplish the
most they can with the freedoms that we are given--it is totally in
contradiction to that goal and that aspiration we have for all
Americans. It is important to address some of the specific allegations
that have been made.
First of all, this is equivalent to creating an Indian tribe. The
State of Hawaii has stated in court, in 1985, the tribal concept has no
place in the context of Hawaiian history.
In the Rice v. Cayetano case, the brief said that for Indians, the
formerly independent sovereignty that governed them was for the tribe,
but for the Native Hawaiians, their formally independent sovereign
nation was the kingdom of Hawaii, not any particular tribe or
equivalent political entity. The tribal concept, the brief went on to
say, on behalf of the State of Hawaii, the tribal concept simply has no
place in the context of Hawaiian history.
If we think about that, it is clear Native Hawaiians, if they are
going to be identified based upon having Native Hawaiian blood, do not
live on a reservation or any geographically discrete plot of land.
Indeed, they are dispersed throughout Hawaii and throughout the Nation.
The only defining characteristic is whether an individual has any
Native Hawaiian blood.
It is completely different from Indian tribes which were, at the time
of the founding of this Nation, sovereign entities unto themselves, so
it was entirely appropriate that the Government negotiated
relationships with those existing sovereign entities, the Indian
tribes, as they exist even today.
But to say today, in 2006, we all of a sudden are going to identify
some 400,000 Native Hawaiians wherever they may live in Hawaii and
elsewhere and create a tribe, or a tribe equivalent, out of thin air
has simply no counterpart in the way the Indian tribes are created.
And, indeed, as the State of Hawaii has said for itself, the tribal
concept simply has no place in the context of Hawaiian history.
As to the goals and the aspirations of this particular legislation,
it is clear this bill lays down some rudimentary, I would say early,
steps in the recognition of a political governing body. But as to the
goals of this legislation and the supporters of this legislation, the
Office of Hawaiian Affairs acknowledges what the goals are under the
Akaka bill. It says:
The Native Hawaiian people may exercise their right to
self-determination by selecting another form of government,
including free association or total independence.
The concept of any people within the confines of the United States
claiming their total independence is not unknown to our Nation's
history. Six hundred thousand people died in a civil war, claiming a
right to independence from the Union. There has been much bloodshed,
many lives lost, to preserve this great Union that we call the United
States of America.
When I say this seemingly innocuous legislation raises profound
issues that affect who we are as a Nation and what we will be as a
Nation, I mean that in all sincerity. This legislation would be a
serious step backward for our Nation and could not be any further from
the American ideal.
From the beginning, Americans have been a people bound together not
by blood or ancestry but rather by a set of ideas. These ideas are
familiar to all of us: liberty, democracy, freedom, and most of all,
equal justice under the law. These are the ideas that unite all
Americans. They are ideas that have literally changed the course of
human events.
No longer are the greatest civilizations in the world recognized or
measured by how many subjects bow before a king or how many nations are
conquered by armies. Today, we measure greatness of a nation to the
extent that the nation's people are recognized as equal under the law.
This is enshrined in our most basic documents. Thomas Jefferson's
Declaration of Independence, stating ``that all men are created
equal.''
But we know too well that those are words on paper. The long road to
equality, on which we most certainly continue to travel and which
continues to be a work in progress, has been costly to our Nation. As I
mentioned a moment ago, it has been paid for with the blood of hundreds
of thousands of American patriots. Unfortunately, the signposts along
the way have been too often marked by violence and bigotry when we have
seen Americans pitted against other Americans claiming special status
because of the color of their skin or because of their relationships.
Today, however, America stands as a shining example of what happens
when people set the ideal in their mind as the goal to work forward. As
Justice Harlan noted in his classic dissent in the case Plessy v.
Ferguson:
[O]ur Constitution is color-blind, and knows neither nor
tolerates classes among citizens. In respect of civil rights,
all citizens are equal before the law.
While it certainly took far too long in our own Nation's history to
embrace the truth of Justice Harlan's position, and we certainly have
more to do as a work in progress ourselves, America has made
significant progress toward equality.
Unfortunately, this bill--whatever good the intentions may be, and I
grant those without any argument--the bill threatens to undermine all
of the progress we have made by establishing a race-based government
and requiring the Federal Government enforce its creation.
There are the bill sponsors, the Governor of Hawaii, and the Attorney
General, who argue that the bill does not establish a race-based
government. Indeed, they say that the bill neither further balkanizes
the United States nor sets up a race-based separate government in
Hawaii.
With all due respect, a plain reading of the legislation indicates
otherwise. The bill clearly states that only Native Hawaiians can
participate in the newly established community, period. And a Native
Hawaiian is defined in part as ``[o]ne of the indigenous, native people
of Hawaii and who is a direct lineal descendant of the aboriginal,
indigenous native people.''
[[Page S5575]]
But perhaps the most troubling description of the bill comes from our
friends, the Senators from Hawaii:
. . . the first step is to create a list of Native
Hawaiians eligible . . . The individuals on the list will be
verified by a commission of individuals in Hawaii with
demonstrated expertise and knowledge in Hawaiian genealogy.
The list will be forwarded to the Secretary of the Department
of Interior who is authorized to certify the list only if the
Secretary is fully satisfied that the individuals meet the
necessary criteria.
In other words, the legislation requires that the Federal Government
hire Federal employees to serve on a race-based commission that itself
would use a racial test to determine membership in the race-based so-
called tribe.
I ask my colleagues to explain to me how this does not ``set up a
race-based separate government in Hawaii.'' It seems that if words have
any meaning, the truth is plain to see that it does, indeed, establish
a race-based system without precedent in American history.
What concerns me even more is that the proponents claim the
legislation will not balkanize the United States. But this claim
virtually ignores the entirety of our Nation's long and historic
struggle over issues of race from slavery to Jim Crow laws and beyond,
laws and policies that define our people based on race are bound to
ultimately fail.
Furthermore, by claiming to create an analogy to an Indian tribe out
of Native Hawaiians scattered across the planet, Congress will be
giving the new government some of the same benefits as other Indian
tribes. Yet the new government will operate at a very different
environment with no geographic boundaries nor physical communities. The
people who may be confirmed as Native Hawaiians are completely
integrated with all others throughout Hawaii and throughout the 50
States. Developing this government will create a large number of
structural and practical difficulties that one can only imagine.
Since time is short today, and it is my sincere hope that our
colleagues will vote against cloture on this bill, I will reserve
additional comments for a later time.
I conclude by saying this is an idea that runs completely counter to
America as a melting pot, which has been so often used to describe our
Nation as a Nation that is comprised of many races and many
ethnicities, people of wildly divergent beliefs. But the one thing we
do agree on is the founding ideals that have made America unique, none
of which is more important than equal justice under the law. If we are
to embrace for the first time in American history, as a matter of our
legislative actions, race-based distinctions for Americans, it will be
a day we will long rue and will be a black mark in our Nation's long
march toward equal justice.
I yield the floor.
Mr. STEVENS. Can Senator Akaka yield me some time to comment on the
legislation?
Mr. AKAKA. Mr. President, I yield such time as the Senator desires
from our side.
The PRESIDING OFFICER. The Senator from Alaska is recognized. The
Chair notes the Senator still has 2\1/2\ minutes remaining on the
majority time as well.
Mr. STEVENS. I ask unanimous consent I be allowed to speak using the
time of the Senator from Hawaii. They can reserve their time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. STEVENS. I am in support of the legislation, and I will take my
time from the other side of the aisle.
The PRESIDING OFFICER. The Senator is recognized.
Mr. STEVENS. Mr. President, I am saddened to hear some of the
comments I have heard today in the Senate. Most people do not
understand the circumstances that existed in both of our offshore
States.
I have come to the Senate to support the Native Hawaiian Government
Reorganization Act introduced by my good friends from Hawaii. I support
this bill not only because of my friendship and respect for Senator
Inouye and Senator Akaka but also because it is the right thing to do
for the Hawaiian people. I have visited with the Hawaiian people very
often on this subject.
Alaska, similar to Hawaii, has a rich history shaped by native
cultures and traditions. These customs are a vital part of our
heritage. My commitment to protecting and preserving the culture of
Alaskan Natives spans now more than four decades. I believe Native
Hawaiians deserve this protection as well.
While our Alaskan Native community still faces many challenges, their
position has been improved because of legislation which clarified their
relationship with our State of Alaska and with the Federal Government.
Soon after I came to the Senate--and that was in 1968--I began
working to settle the unresolved claims of our Alaskan Natives. Many of
the arguments against the Hawaiian bill now made by the opponents of
this legislation were made by those who opposed the Alaskan Native
Claims Settlement Act enacted in 1971. But time has proven them wrong.
The Alaskan Native Claims Settlement Act did not create States within
our State. It did not lead to secession. It did not lead to anyone
trying to create a nation within our Nation. Those who argue that the
bill before the Senate will lead to secession ignore the history. More
than 562 Indian tribes are recognized by our Federal Government.
Not one of those tribes has sought to secede from their State or from
the Nation. Federal recognition of these tribes has not prompted any
State that they call home to try to secede from our Union. The Akaka
bill reaffirms our longstanding commitment to the rights of our
indigenous people. It ensures that Native Hawaiians will have the same
type of recognition afforded to American Indians and to Alaska natives
by the act of 1971.
The U.S. Government has a responsibility to Native Hawaiians, as it
does to all indigenous people under our Constitution. The Constitution
vests Congress with the authority to promote the welfare of all Native
American people and to help foster their success.
Like the Alaska Native Claims Settlement Act, the bill before us,
when it is enacted, will create a framework which ensures Native
Hawaiian groups can address their unique circumstances. ANCSA was a
crucial step in responding to the concerns of Alaska natives. It
empowered them to improve their own position. The Akaka bill offers
Native Hawaiians the same opportunity.
Our Federal policy of self-determination and self-governance has not
been formally extended to Native Hawaiians. This omission unfairly
singles them out for disparate treatment from our Federal Government.
It deprives them of the processes by which other native groups may
negotiate and resolve issues with the Federal and State governments. In
my judgment, it is time to right this wrong.
This bill will fulfill our Federal obligation to Hawaii's native
people. The Akaka bill authorizes the United States, the State of
Hawaii, and the Native Hawaiian Government to conduct negotiations.
Their discussions will address the unique issues facing Native
Hawaiians. These steps will help ensure the future prosperity of the
Native Hawaiian people.
The bill offered by the Hawaiian delegation has garnered widespread
support. The legislation reflects the recommendations made by the
Department of Justice and the Department of the Interior in the
reconciliation report they published in 2000. The Governor of Hawaii,
the Hawaii State legislature, and a majority of the Hawaiian people
support this bill. Both the National Congress of American Indians and
the Alaska Federation of Natives have passed resolutions in support of
this bill.
Just as I sought to protect the rights of Alaska natives, Senators
Akaka and Inouye are fighting for the rights of their native people in
Hawaii. They have my full support. They have the support of the Alaska
people. I believe they have the support of those who want to see these
wrongs righted.
The time has come to fulfill our commitment to these indigenous
people and to address the needs of the Native Hawaiians. We can no
longer deny our Nation's responsibility to promote their welfare as
much as we have promoted the welfare of the Indian people and the
Alaska native people.
The Native Hawaiian Government Reorganization Act is a step towards
meeting our Federal commitment to
[[Page S5576]]
Native Hawaiians. It is long overdue. I have come to urge our
colleagues to support cloture and vote in favor of this legislation.
I am sorry we are no longer really a debating body. I would love to
debate this. I would love to try to ask them to understand what
happened in Alaska. The rights of Alaskans aren't the same. There were
people who said: You can't do that; that will create a State within a
State. There were people who said: You can't do that; they will rebel
against the United States.
These people are good Americans. They serve in our military. They
just have a different culture, and it has never been recognized by our
government as it should. It was done in Alaska in 1971. It is long
overdue here.
I ask unanimous consent that the time between 6 and 6:30 be
controlled by the majority, and the time between 6:30 and 7 be
controlled by the minority.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Hawaii.
Mr. AKAKA. Mr. President, I yield as much time as he needs to the
Senator from Illinois.
The PRESIDING OFFICER. The Senator from Illinois is recognized.
Mr. OBAMA. Mr. President, I rise in support of the Native Hawaiian
Government Reorganization Act of 2005.
Although I am a proud Illinoisan, proud to be the junior Senator from
Illinois, many of you know that I was born and raised in Hawaii. Anyone
who has been fortunate enough to visit or call Hawaii home, as I once
did, and as my grandmother and sister and adorable niece still do,
anybody who has spent time in Hawaii cannot help but recognize the
uniqueness of the place. In addition to its scenic landscapes and rich
history, it is the living legacy of aloha--the spirit of openness and
friendliness that is ingrained in the shared, local culture that shapes
and enhances each island encounter and experience.
Throughout Hawaii's history, individuals of all nationalities, races
and creeds have found solace in Hawaii. In large part this stems from
the culture of Native Hawaiians, who have always acknowledged and
celebrated diversity. This incorporation of new cultures and practices
over the years has strengthened and unified the community. And as the
child of a black father and a white mother, I know firsthand how
important Native Hawaiian efforts are to foster a culture of acceptance
and of tolerance.
For this reason, I am proud to join Senator Daniel Akaka to extend
the Federal policy of self-governance and self-determination to Native
Hawaiians. Native Hawaiians are a vital part of our Nation's cultural
fabric, and they will continue to shape our country in the years to
come.
The Native Hawaiian Government Reorganization Act provides both the
process and opportunity for Native Hawaiian communities to engage
themselves in and reorganize their governing entity to establish a
federally recognized government-to-government relationship with the
United States of America. The process set forth in the bill empowers
Native Hawaiians to explore and address the longstanding issues
resulting from the overthrow of the kingdom of Hawaii.
There are three main provisions of the Native Hawaiian Government
Reorganization Act.
First, the bill establishes the Office of Native Hawaiian Relations
in the Department of the Interior to serve as a liaison between the
Native Hawaiians and the United States.
Second, the bill establishes the Native Hawaiian Interagency
Coordinating Group that will be comprised of Federal officials from
agencies that administer Native Hawaiian programs. These provisions are
intended to increase coordination between Native Hawaiians and the
Federal Government.
And third, the bill provides a process for reorganizing the Native
Hawaiian government entity. Once the entity is reorganized and
recognized, there is a process of negotiations to resolve longstanding
issues such as the transfer of and jurisdiction over lands, natural
resources, and assets.
Support for this bill comes not only from the people of Hawaii but
from people all across America. This bill also is supported by the
indigenous peoples of America, including American Indians and Alaska
natives. As Americans, we pride ourselves in safeguarding the practice
and ideas of liberty, justice, and freedom. By supporting this bill, we
can continue this great American tradition and fulfill this promise by
affording Native Hawaiians the opportunity to recognize their governing
entity and have it recognized by the Federal Government.
As someone who grew up in Hawaii and has enormous love for the
Hawaiian culture, I also think it is important, as I know the two
Senators from Hawaii will acknowledge, that there have been
difficulties within the community of Native Hawaiians, oftentimes
despite the fact that we are visitors to Hawaii; that many times
particularly young Native Hawaiians have had difficulties in terms of
unemployment, in terms of being able to integrate into the economy of
the islands, that some of the historical legacies of what has happened
in Hawaii continue to burden the Native Hawaiians for many years into
the future.
This bill gives us an opportunity not to look backward but to help
all Hawaiians move forward and to make sure that the Native Hawaiians
in that great State are full members and not left behind as Hawaii
continues to progress.
This is an important piece of legislation. I take a minute to commend
the senior Senator from Hawaii, Mr. Inouye, and most of all Senator
Akaka, particularly, for his tireless efforts to bring this to the
floor. When people all across the country didn't know about this issue,
Senator Akaka was the one who made sure we did. He has been a champion
for the people of Hawaii. He is always working hard and thinking big to
realize this ideal for the native population of his State. They are
truly fortunate to have Senator Akaka as their Senator.
I urge my colleagues in the Senate to vote for the Native Hawaiian
Government Reorganization Act of 2005. I will be proud to add my vote
to the roll call.
I yield the floor.
The PRESIDING OFFICER. The Senator from Hawaii.
Mr. AKAKA. Mr. President, before I yield time to the Senator from
Alaska, I would like to say a word about secession. This bill in no way
allows the State of Hawaii to secede from the United States. To
reiterate my prior statement, I support addressing the legal and
political relationship between Native Hawaiians and the United States
within Federal law. I do not support independence. I do not support
secession of the State of Hawaii from the United States.
This bill extends the Federal policy of self-governance and self-
determination to Hawaii's indigenous peoples, thereby providing parity
in Federal policies toward American Indians, Alaska natives, and native
Hawaiians. The bill focuses solely on the relationship between the
United States and Native Hawaiians within the context of Federal law.
None of the numerous federally recognized tribes have been accused of
seeking to cause their State to secede from the Union because of their
legal and political relationship with the United States. Such claims
are false and meant to instill fear in those who are unfamiliar with
the nature of government-to-government relations between tribal
entities and the United States.
Given Hawaii's history, I have a small group of constituents who
advocate for independence. Why? Because there hasn't been a structured
process to deal with the longstanding issues resulting from the
overthrow. The absence of a process to resolve the issue has led to
frustration and desperation. My bill provides a structured process to
begin to address these longstanding issues. Contrary to the claim of
divisiveness, my bill goes a long way to preserve the unity of the
people of Hawaii.
I yield time from our side to Senator Murkowski of Alaska.
The PRESIDING OFFICER. The Senator from Alaska is recognized.
Ms. MURKOWSKI. I thank the Senator from Hawaii for his leadership on
this issue, for his leadership on behalf of the people of Hawaii. There
is so much in common that the Alaskans in the north share with our
neighbors in the Pacific. I would like to take a few
[[Page S5577]]
moments to speak a little bit about the history and how the history of
our Alaska Natives ties in with the Native Hawaiians and why I stand
today in support of the legislation offered by Senator Akaka.
As Abraham Lincoln is revered by the African American community as
our first civil rights President, Richard Nixon is held in esteem by
America's native people for his doctrine of self-determination.
President Nixon knew that in order for the native people to break out
of the despair and poverty that gripped their lives, they would need to
be empowered to take control of their own destiny. One of President
Nixon's legacies to America's first peoples is the Indian Self
Determination and Educational Assistance Act. Another one is the Alaska
Native Claims Settlement Act. These two pieces of legislation
eliminated any doubt as to whether the Native people of Alaska were
recognized as among the first people of our United States and were,
therefore, eligible for the programs and services accorded to Native
people.
Yet it took more than a century from the time the United States
acquired Alaska from Russia for the legitimate claims of Alaska's
native people to be resolved. One hundred and three years to be exact.
President Nixon signed the Alaska Native Claims Settlement Act into law
on December 18, 1971. It has been amended by Congress to clarify one
ambiguity or another on numerous occasions since.
The Indian Commerce Clause of the United States Constitution, which
provides the legal basis for our Nation's special relationship with its
native people, speaks of the authority of Congress to regulate commerce
with the Indian tribes. It is now well established that this provision
of the Constitution is the legal basis for our Nation's special
relationships with the Native peoples of Alaska.
Some of Alaska's native people regard themselves as Indians. But the
Eskimo and Aleut peoples of Alaska, who have also been recognized by
this Congress and the courts as deserving of the special relationship,
most certainly would not regard themselves as Indians.
In Alaska, the basic unit of native organization is the village and
while some villages refer to themselves as ``tribes,'' many native
villages do not.
The Inupiaq Eskimo villages carry names like the native village of
Barrow, the native village of Kaktovik, and the regional governing body
of North Slope Inupiaq Eskimos refers to itself as the Inupiaq
Community of the Arctic Slope.
Alaska's native peoples are Aleuts, Eskimos and Indians and their
units of organization include entities like traditional councils,
village councils, village corporations, regional consortia and
subregional consortia. Yet neither the Congress nor the Federal courts
deny all fall within the purview of the Indian Commerce Clause.
Leading constitutional scholars, including our esteemed Chief Justice
John Roberts, have argued that Native Hawaiians also fall within the
purview of the Indian Commerce Clause. I think it is high time that
this Congress confirm that they do.
The American Indian Law Deskbook, 2d edition, authored by the
Conference of Western Attorneys General, an association of state
attorneys general, quotes the U.S. Supreme Court's decision in United
States v. Antelope for this point.
Congress may not bring a community or body of people within
the range of its Indian Commerce Clause by arbitrarily
calling them an Indian tribe, but . . . the questions
whether, to what extent, and for what time they shall be
recognized and dealt with as tribes are to be determined by
the Congress, and not by the courts.
As anyone who has been to law school knows, when the courts apply
arbitrariness as the standard of review, they are highly deferential to
the initial decision maker, whether that decision is made by the
executive branch or the legislative branch.
And the new 2005 edition of Cohen's Federal Indian Law treatise,
which has historically been regarded as the definitive authority on
Federal Indian Law notes that ``no Congressional or executive
determination of tribal status has been overturned by the courts'' and
indeed the Supreme Court has never refined the arbitrariness standard
to which I referred.
The Alaska Native Claims Settlement Act was most importantly, a
settlement of land claims. But it has turned out to be so much more for
Alaska's native people. It created native owned and native controlled
institutions at the regional and village level. These institutions, the
Alaska Native Corporations, have functioned as leadership laboratories,
helping a people who traditionally lived a subsistence lifestyle gain
the skills necessary to run multi-million-dollar economic enterprises.
I am not only referring to the profit-making corporations created by
the act, but also the people serving institutions that manage Indian
Self Determination Act programs.
The Alaska native health care delivery system is a prime example of
President Nixon's self-determination policies at work. At one time the
Federal Government administered the delivery of health care to the
native people of Alaska through the Indian Health Service. Today, the
native people administer their own health care delivery system under a
self-governance compact with the Federal Government.
This healthcare system is recognized around the world as a laboratory
for innovation. It is a pioneer in the use of telemedicine technology
to connect clinics in remote villages to doctors at regional hospitals,
and at the advanced Alaska Native Medical Center in Anchorage.
Confidence in the quality of care delivered by the native healthcare
system rose when native people took over the system.
But for me the most gratifying thing is to see young native people
who are leading their communities into the new millennium. You see them
in management and developmental positions everywhere in the Alaska
native healthcare system.
The institutions created and fostered by the Alaska Native Claims
Settlement Act have helped countless native young people pursue
educational opportunities at the undergraduate and graduate level.
Young people from the villages of rural Alaska are going off to school
and returning with MBAs and degrees in law and medicine, nursing,
education and social work.
As I visit the traditional native villages in my State of Alaska, it
is evident to me that the Alaska Native Claims Settlement Act
accomplished much more than settling land claims and creating native
institutions. This legislation empowered a people. The Native people of
Alaska have regained their pride in being native. Even as native people
are pursuing careers that their ancestors never considered, there is a
resurgence of interest in native languages and native culture in many
of our native communities.
The empowerment of Alaska's Native people also enriches the broader
Alaska community. Thousands of Alaskans participate in programs offered
by the Alaska Native Heritage Center in Anchorage. The Athabascan Old
Time Fiddler's Festival and the World Eskimo-Indian Olympics enable the
native people of Interior Alaska to share their culture with the Alaska
community.
At the time the Alaska Native Claims Settlement Act became law, some
believed that it would balkanize the State of Alaska and separate
people from one another. As we approach the 35th anniversary of the
Alaska native land claims settlement, I can state with confidence that
this single step of recognizing the legitimate claims of Alaska's
native peoples has made our State a better place. It strengthened our
ties to the past. It strengthened our sense of community. It enables
all of us, native and non-native alike to take pride in Alaska.
Some 112 years have passed since the overthrow of the Kingdom of
Hawaii, depriving the Native Hawaiian people of their self-
determination and their land. Some 112 years after the Native Hawaiian
people came under the control of the United States, I am sad to note
that their status among the aboriginal peoples of the United States
remains in controversy.
This controversy persists even though the Congress has enacted more
than 150 separate laws that recognize a special relationship between
the Native Hawaiian people and the United States. Among these laws is
the Hawaiian Homes Commission Act of 1921, which set aside lands for
Native Hawaiians much like the Alaska Native Allotment Act set aside
lands for Alaska Natives.
[[Page S5578]]
Now you would think that if Native Hawaiians were regarded as not
having the status of Indian people under the Commerce Clause, that the
Congress would not have set aside land for them or made them eligible
for the sorts of programs and services for which native people are
eligible. But the Congress has done so time and time again and
Presidents continue to sign these bills into law.
I am referring to the inclusion of Native Hawaiians in laws like the
Native American Programs Act of 1974 and the Native American Graves
Protection and Repatriation Act, which protect the interests of all of
America's native peoples.
I also refer to laws such as the Native Hawaiian Healthcare Act and
the Native Hawaiian Education Act which specifically rely on Congress's
plenary power over matters involving Indians for their authority.
This controversy persists even though this Senate passed by a margin
of 65-34, an Apology Act in 1993 which was ultimately signed into law
as Public Law 103-150. Through this Apology Act, the Congress expressed
its commitment to provide a proper foundation for reconciliation
between the United States and the Native Hawaiian people.
The bill before us, S. 147, is the logical next step in the process
of reconciliation. It is the product of many years of hard work by our
esteemed colleagues, Senator Akaka and Senator Inouye. It has earned
the support of the Governor of Hawaii, the Honorable Linda Lingle, and
the support of the Hawaii Legislature. It is endorsed by every major
Indian group in our Nation--the National Congress of American Indians,
the Alaska Federation of Natives and the Council on Native Hawaiian
Advancement. It has been carefully considered by the Senate Committee
on Indian Affairs which has reported the bill favorably to the full
Senate.
First and foremost, it conclusively resolves the issue of whether
Native Hawaiians are aboriginal peoples alongside American Indians and
Alaska natives. This is a process that the native people of Alaska
waited 108 years to resolve. It is important for the Congress to
resolve these issues in order to assure that the programs we have
enacted for the benefit of Native Hawaiians are free of constitutional
challenge.
It provides for the organization of Native Hawaiians in a form that
the adult members of that community determine by an open and
transparent ballot. And it empowers that Native Hawaiian organization
to negotiate with the State of Hawaii and the United States of America
over the direction that Native Hawaiian self-determination may take.
This is a modest piece of legislation that simply establishes a
framework for negotiations to take place in the future.
Some of the opponents of this legislation have set out a parade of
horribles that will flow from its enactment. I, for one, am unwilling
to speculate on the outcome of the negotiations between the United
States, the State of Hawaii, and the organization of Native Hawaiians
established by this legislation. This legislation on its face states
that it does not authorize Indian gaming, it does not vest the Native
Hawaiian organization formed under its provisions with civil or
criminal jurisdiction, and it does not require that Federal programs
and services to other aboriginal peoples of the United States be
reduced in order to provide access to the native peoples of Hawaii. It
also does not create Indian reservations in Hawaii.
Sharing and inclusion are fundamental values to the native people of
Alaska. The Alaska Federation of Natives, which is the oldest and most
respected organization representing all of Alaska's native peoples,
strongly supports the inclusion of Native Hawaiians among our first
peoples, just as it supports the legitimate claims of the Virginia
tribes and those of the Lumbees of North Carolina. I ask unanimous
consent that the AFN's resolution of support be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
In Support of the Hawaiian People
Whereas: the aboriginal people of the Hawaiian Islands,
like Alaska Natives and Indians of the Lower 48 states, have
long been the victims of colonial expansionism and racial
discrimination; and
Whereas: the Office of Hawaiian Affairs, a unit of state
government, has for years administered trust funds for the
benefit of Native Hawaiians under the aegis of a Board of
Directors elected by Native Hawaiians; and
Whereas: in the recent Rice v. Cayetano ruling, the U.S.
Supreme Court held that this electoral process violates the
Fifteenth Amendment to the United States Constitution, which
prohibits the use of race as an eligibility factor in voting;
and
Whereas: the Rice decision opens the door to additional
lawsuits that would threaten the status and well-being of
Hawaiians--and could create serious implications for Alaska
Natives and other indigenous Americans; and
Whereas: the most experienced legal strategists in Hawaii,
including the Governor and the Congressional Delegation, have
determined that the best response to the Rice decision is
that the United States Congress enact legislation
specifically recognizing the Hawaiians as an ``indigenous
people'' of the United States; and
Whereas: the State of Hawaii, particularly when compared to
Alaska, has generally treated its indigenous population with
respect and it is now making a unified effort to avoid the
damage that Rice could do its own future; and
Whereas: there are several compelling reasons why AFN and
the statewide Alaska Native community should now stand up for
the Hawaiian people during the struggle for their appropriate
legal status:
(1) because it is the right and just thing to do;
(2) because all Americans have a vested interest in healthy
social relationships, racial tolerance, and political
cohesion; and
(3) because the Hawaiian Congressional Delegation--and
above all, Senators Daniel Inouye and Daniel Akaka--have
always been there for us in our long fight for Alaska Native
rights, including subsistence; Now therefore be it
Resolved, That the Board of Directors of the Alaska
Federation of Natives declares its unqualified concern for,
and support of, the Hawaiian people in their quest for
federal recognition as indigenous people of the United
States; and be it further
Resolved, That the Alaska Federation of Natives' Board of
Directors direct the President and staff to assist the State
of Hawaii's political leadership in this critical effort, by
all appropriate means.
Ms. MURKOWSKI. Celebrating the distinctive cultures and ways of our
first peoples strengthens of us. The Alaska Native Claims Settlement
Act has stood the test of time and proven to be a good thing for the
people of Alaska--native and non-native alike.
During his introductory remarks, the Senator from Tennessee, Mr.
Alexander, drew some distinctions between the situation of the Native
Hawaiians and those of Alaska Natives. I would like to offer a few
observations for the Record.
It is true that some Alaska Natives now and at the time the Alaska
Native Claims Settlement Act of 1971 was enacted live in Alaska Native
villages. Those villages have never been regarded as Indian
reservations. Non-Natives live in Alaska Native villages alongside
Alaska Natives.
But more significantly, the Alaska Native Claims Settlement Act of
1971 did not require that one reside in one of the Alaska Native
villages or even in the State of Alaska to be a beneficiary of the
settlement. All it required it that an individual have as a result of
one's ancestry a specified quantum of Aleut, Eskimo or Indian blood to
be an initial shareholder in an Alaska Native Corporation. The Federal
Government determined who was eligible to receive stock by formulating
a roll of Alaska Natives.
Recognizing rates of intermarriage among Alaska Natives, Congress has
amended this legislation to give descendants of a corporation's
original shareholders an opportunity to participate in the corporations
on a co-equal basis with those shareholders who had the requisite blood
quantum.
At the time that the claims act was passed Alaska Natives resided in
every urban center of Alaska and many resided outside of the State of
Alaska. They too lived as everyone's next door neighbor and were mixed
in with the State's population.
In the 34 years since the claims act was passed more and more Alaska
Natives have relocated to regional hubs, to Alaska's largest cities,
and to locations outside Alaska. Today, Anchorage is regarded as
Alaska's largest Native village. Some even live in Hawaii. Yet they
have not lost their status as Alaska Natives in fact as in law. All
remain eligible for services customarily provided to American Indians
and Alaska Natives under the law.
I trust in the judgment of my respected colleagues, Senator Akaka and
[[Page S5579]]
Senator Inouye, and my friend, Governor Lingle, that passage of S. 147
will enrich the lives and spirits of all of the people of Hawaii.
I ask that my colleagues support cloture to enable us to debate S.
147. With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Hawaii is recognized.
Mr. AKAKA. Mr. President, I thank the Senator from Alaska for her
support. I yield whatever time is left to the Senator from Arkansas,
Mrs. Lincoln.
The PRESIDING OFFICER. The Senator has 18 seconds.
Mrs. LINCOLN. Mr. President, first of all, I compliment my colleagues
from Hawaii, Senator Inouye, and Senator Akaka especially, for sharing
his time and for the incredible work they have done on behalf of the
people they represent in the State of Hawaii. I wanted to take this
opportunity to----
The PRESIDING OFFICER. The Senator's time has expired. The next 30
minutes, by unanimous consent, is to be controlled by the majority.
Does the Senator from Arkansas have a unanimous consent request?
Mrs. LINCOLN. Yes. I ask unanimous consent to proceed for 5 minutes.
The PRESIDING OFFICER. Is there objection?
Mr. GREGG. Reserving the right to object, and I have no desire to
object, my time was starting at 6 o'clock, and then Senator Sessions
has 10 minutes. He needs to leave by 6:20. He is not here. I think that
was the original agreement.
Would the Senator be willing to start at 6:20 and have 5 minutes
then?
Mrs. LINCOLN. If there is an objection, I will certainly yield.
The PRESIDING OFFICER. Is there an objection?
Mr. GREGG. That will still be on our time, as I understand it. If the
Senator is agreeable, I suggest that at 6:20 she be recognized for 5
minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GREGG. Mr. President, I apologize to the Senator, but Senator
Sessions advised me he wants me to be completed by 6:10.
The PRESIDING OFFICER. The Senator from New Hampshire is recognized.
Repeal of the Estate Tax
Mr. GREGG. Mr. President, I rise today to support the effort which is
being pursued in the Senate in a bipartisan way, I certainly hope, to
rid ourselves of the death tax, especially as it applies to smaller
estates.
The death tax makes virtually no sense from a standpoint of tax
policy. Before I was elected to the Senate and before I got into public
office, I was an attorney. At the time, I went back to graduate school
for 3 years and got a graduate degree in tax policy and taxation, an
LLM, as it is called. One of the areas I specialized in at that time
was estate tax planning. It always seemed ironic to me that this was
the only tax that was energized not by economic activity--in other
words, usually when you are taxed, you do something that generates
economic activity. You have a job so you have income; you make an
investment and make a sale of that investment, so you have capital
gains. Whatever it is, it is an economic event that you energize, that
you initiate, and it has generated some sort of income to you.
The death tax is the only tax we have which has nothing to do with
economic events. It just has to do with an unfortunate luck of the
draw. You are crossing the street and you get run over by a postal
truck and die, which is enough of an action to upset your day, and then
the IRS comes by and they run over you again. So you end up not only
having your day totally ruined because you got run over by the postal
truck to begin with, but then your family has their day ruined because
they not only lost you, but they suddenly have to pay this huge tax if
you are an entrepreneur.
The problem is that it hits most discriminatorily that small
entrepreneur in our society who basically creates jobs--the small
business person--a person who has made an investment and built an asset
throughout their life. Maybe it is people who go out and start a
restaurant, maybe employ 10, 15, 20 people; people who go out and start
a printing business or make an investment in real estate, an apartment,
build housing for people. They are just getting going, they don't have
a whole lot of assets, and they are not very liquid usually--in fact,
these folks are not liquid at all because it is mostly tied up in real
estate--and suddenly they have this traumatic event with the key person
in the family dying who maybe built this business and then they get hit
with a tax.
Not only is it a tax which has nothing to do with economic activity,
it is actually a tax which has the ironic and unintended consequence, I
presume--but it is exactly what happens--of actually crushing economic
activity and reducing economic activity and, in many cases, costing
jobs because the small family business or the farm, which was being
operated by this sole proprietor, in most instances, or this small
family unit, suddenly can't find itself capable of meeting the costs of
paying the estate tax--it didn't ever plan for that or if they did plan
for that the cost of planning for that was pretty high--and so they
have to sell their assets which usually means the people they employ
are at risk or maybe they have to just close down the whole operation.
So the economic activity contracts, and instead of having a business
that might have been growing, you end up with a forced sale, the
practical effect of which is you contract economic activity.
First you have this really incomprehensible concept that you are
going to tax people not for economic gain, but simply because they had
a terrible thing happen, which is they died, maybe accidentally, and
then you are going to say that instead of encouraging economic
activity, which is what the purpose should be of our tax laws, you are
actually going to create a tax which contracts economic activity. So it
is discriminatory, inappropriate, and irrational, and on top of that,
to make things worse, the United States has the third highest estate
tax, death tax rate of the industrialized world. In fact, our rate is
so high that we are even above--and this is hard to believe--we are
even above France. When you get above France in an area of taxation,
you have really started to suffocate economic activity,
entrepreneurship, and creativity because they are sort of the poster
child for basically how to make an economy nonproductive and encourage
people not to work and basically be a socialist state.
This whole concept of a death tax, first, makes no sense from the
standpoint of tax policy; it is not generated by economic events, and
it makes no sense from the standpoint of economic policy because it
usually leads to contraction of growth rather than expansion of growth.
And it certainly makes no sense that the United States, which should be
a bastion of the promotion of entrepreneurship and a bastion of
supporting family farmers, the family restaurant, the family gas
station, the family entrepreneur, is taxing those families at a rate
which is higher than the French do.
There is a proposal--in fact, really there is a series of proposals--
in the Senate today and the next few days which will allow us to put in
place a more rationalized approach to the death tax. To get to that
point, we have to have, it appears, a cloture vote on full repeal,
which was the House position. But three or four of our colleagues have
put forward ideas that do not involve full repeal--I support full
repeal--but these are more modest approaches. Senator Kyl has been
leading the effort in this area. Senator Baucus appears to be pursuing
this effort. Senator Snowe, I know, is pursuing it. There are options
floating around the Congress--the Senate specifically--which,
hopefully, can be pulled together and moved forward.
It truly is time to do this. We need to put in place a clear
statement of what the tax policy is going to be if you have the
unfortunate experience of being run over by a postal truck. And it
should be a clear statement that if you are a small entrepreneur with a
family-type business or a farm, that your family is not going to be
wiped out by the IRS coming in on top of this terrible event and taking
basically a disproportionate and inappropriate share of your assets and
basically contracting and eliminating your business and putting your
family's livelihood at risk.
The reason we need to do it now, even though most of this won't take
effect until 2010, I can tell you as an estate tax planner before I
took this job,
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before I got into public service, you need that lead time to do it
right. You just can't overnight plan for tax policy. You have to have
lead time, you have to have a clear statement of what the tax policy is
going to be, and consistency is critical. Putting this in place now so
it will be effective in 2011, which is what most of the proposals are,
is absolutely essential if we are going to have an effective reform of
this death tax law which we presently have.
Mr. President, I see the Senator from Alabama is in the Chamber. I
yield the floor.
The PRESIDING OFFICER. The Senator from Alabama is recognized.
Mr. SESSIONS. Mr. President, I couldn't agree more with Senator
Gregg's comments. He is someone who has had experience with the estate
tax. He understands these ramifications well.
My college professor, Harold Apolinsky, in Birmingham, one of the
great estate tax lawyers in the country, has dedicated his career in
recent years to eliminating this tax. He said it is the worst thing
happening to our country, and it absolutely ought to be eliminated. He
said: Even if it affects my business, I am doing this because I think
it is the right thing to do. He has inspired me to be active in this
area.
I would like to share three stories.
I was traveling in a small town in Alabama. A man came up to me with
his son. They have three motels. He was sharing with me their
frustration that they had to take out an insurance policy that cost the
family $80,000 a year because if something happened to him, they had no
cash--they had built motels, they were investing in a growing economy
and expanding this small business and they had no cash--and they would
be faced with a death tax.
I want my colleagues to think about this: Against whom is this small
business family competing? It is competing against Holiday Inn, Howard
Johnson's, Courtyard Marriott, and who all else--huge international
corporations that never pay a death tax--never pay it. But this closely
held family business can be devastated. And if we don't change the law,
as we all know, in 2011, this tax will again be 55 percent of net worth
over the base amount.
We need to be encouraging these kinds of businesses. I got a call
yesterday from Robert Johnson, the founder and CEO of Black
Entertainment Television. He told me that the death tax was going to
make it impossible for African Americans to continue to develop wealth.
He said he is competing against CBS, ABC, NBC, and Fox. He is not as
big as they are, but he is competing. He has made some money. If
something happens to him, the family is going to have to take out of
his business huge amounts of cash reserves. What then will happen? BET
will be put on the sale block, and it will be bought, as he said, by
some big conglomerate. It will not be bought by an African American
because they won't have the money to do it. He said we are capping off
the growth rate, instead of allowing that company to devolve to his
heirs so it would continue to be run in that fashion.
Think about a person who may own 5,000 acres of land, let's say. That
sounds like a lot. They have managed well. They have been a good
steward for 50, 60 years. They saved money. They drove an old pickup
truck. They have a modest home. They are frugal. We know people like
that.
What about International Paper? They own millions of acres of land.
International Paper will never pay a death tax. But yet this landowner
who is competing--maybe they have a forestry business--competing, in a
way, directly against International Paper. But every generation of this
family, Robert Johnson, the motel owner, has to pay a tax the big guys
don't pay. Do you want to ask why we are seeing consolidation of wealth
in America today? I submit to you that is the reason. Independent
bankers, funeral home directors, they are selling out in large numbers.
They can't afford to manage their business. They have to get liquid so
if something happens to them, they can pay the death tax. It brings in
less than 1.3 percent of the income to the United States Government. I
submit the way it is working today is destroying competition. It is
hurting, savaging, killing off vibrant, growing small businesses, the
family-owned entities that need to be competing against the big guys.
It reminds me of going into a forest of trees and there is this
little tree trying to grow up in the middle of the forest and somebody
just comes in every generation and chops off the top of the little
tree. How can it ever compete against the big guys if it has to pay a
tax they don't pay?
I believe it is important for us for a lot of different reasons. This
is why I think we ought to eliminate the whole thing: some of these
companies are $50 million, $100 million companies, but they are tiny--
$200 million, $300 million, but they are tiny compared to these big,
international corporations. Polls show that the death tax is the most
unfair tax--Americans consider it the most unfair tax because people
have already paid their money. You earn money, and then you pay, if you
are in the higher income bracket, a 35-percent tax rate, and then you
buy an asset with it, and a few years later, you die, and Uncle Sam
comes in and he wants 55 percent of it. What kind of a tax system is
that? It is really a confiscation.
Also, this is very important: Any good tax should be clear, fair,
easy to collect, and does not cost a lot of money to collect. When you
evaluate the death tax by those standards, it is the worst tax of all.
Alicia Munnell, a professor of finance at Boston College and a former
member of President Clinton's Council of Economic Advisers, has written
two times that in her opinion the cost of compliance and avoidance--as
the big, wealthy people spend a lot of money trying to avoid this tax--
may be as high as the revenue raised. How horrible is that, to have a
tax that costs as much to collect as it brings in in revenue?
I have a deep concern about the scoring that has been produced by the
Joint Tax Committee on this death tax repeal. I do not believe it is
accurate. I have not believed it has been accurate for quite some time.
The Wall Street Journal just devastated their analysis a couple of days
ago in an article. I believe it is absolutely incorrect. I would note
that they scored the reduction of the capital gains tax a few years
ago, reduced it from 20 to 15 percent, as costing the Federal
Government billions of dollars. The truth is, the Federal tax revenues
from capital gains increased when the capital gains tax was reduced,
and they missed it by more than $80 billion. They had a reduction
projected, we ended up with a substantial increase, and the difference
between their projection and reality was over $80 billion. Do you know
they won't tell us how they compute this death tax cost? They will not
tell the Members of this Senate what their working numbers are.
So I will give some more information on my concerns about the score,
but I will again note that it brings in less than 1.3 percent of the
revenue to the Government. It is time to eliminate it. It will be great
for our economy. It will eliminate a tax that costs as much to
administer as it does to collect. It will stop savaging small
businesses. It will stop preying on families during the most painful
time in their lives: the death of a loved one.
I yield the floor.
The PRESIDING OFFICER. The Senator from Georgia is recognized.
Mr. ISAKSON. Mr. President, I commend the Senator from Alabama, Mr.
Sessions, on his remarks.
Mr. ISAKSON. Mr. President, Senator Sessions is absolutely correct,
Senator Gregg is absolutely correct, and this Senate will be absolutely
correct if we vote to go to cloture so we can proceed on the total
repeal, or at least an additional repeal, of the estate tax. There are
a lot of reasons, but I want to try and make my point succinctly and I
want to make it briefly because I want to point out how punitive the
estate tax is today.
Most Americans are employed by small business; 75, 76, 77 percent of
all Americans are employed by small business. It may be a restaurant,
it may be a laundry, it may be a farm, it may be a construction
company, it may be a utility contractor just like the ones that are in
town today lobbying all of us for the best interests of their business.
Most people work a lifetime to build a business. They employ people to
whom they pay income. The people to whom they pay income pay income
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taxes. Yet when the tragedy of death comes, an individual owner of a
small business dies, immediately they are confronted with one of the
most punitive and confiscatory taxes that has ever been devised in the
history of taxation.
Granted, we did a good job when we passed the accelerated
improvements in the unified credit or the deduction on the estate tax.
This year, based on the bill we passed a few years ago, there is a $2
million exemption, and that is a help, and it goes to $3.5 million in a
couple of years. Then, magically, the estate tax is repealed in 2010,
only to return to us a year later, to return to us at 55 percent. So we
are asking people who work a lifetime to save and build a business, to
plan, based on a tax that is here today, gone tomorrow, and then
returns with a vengeance a year later.
To best illustrate what the estate tax does to American small
business, ranchers, and family farmers, I would like to do a little
demonstration on the Senate floor. For the sake of argument, let's just
round the 55 percent estate tax off to 50 percent, and let's assume for
a moment that a small business owner, a family farmer, passes away and
dies and their estate becomes taxed at 50 percent. After the credit
that is available now, or when we get back to 2011, no credit at all,
the United States of America and the department of revenue, the IRS,
want to tell the heirs of that estate that within 9 months of the death
of that individual, they want this much of that person's estate. If one
sheet of paper is the whole estate, they want half of it in taxation.
So when the first generation owner of a small business passes that
business on to the second generation, after the Government gets its
half, there is only this much left.
Let's assume that family is able, because of savings and because of
borrowing and because of productivity, to pay that 50 percent tax
without liquidating the business, and that second generation small
business owner operates that business, employs the workers in that
business, pays them the income that pays the taxes, but let's assume
that second generation person meets their demise. And when they die,
before they can pass that family business on to the next generation,
once again, the IRS gets half of what is left.
So in two generations, what was a full estate ends up with three-
fourths of it going to the United States Government, and one-fourth of
it left to the individual or family. Of course, that is in reality not
really what happens because before that last passing takes place, that
business is sold or liquidated, or it is leveraged to such an extent
that the amount of cost of the debt service on the leverage makes that
business go from profitable to unprofitable. That is why the estate tax
is punitive. That is why it is wrong for this country.
I want to address another point that Senator Sessions made that is so
important for us to focus on as we listen to the two sides of this
debate tonight and tomorrow. You will have some come and they will take
that score on how much the repeal is going to cost us, and they will
talk about that score, saying that is a reason we should not repeal the
estate tax or the death tax. I submit, as Senator Sessions did, that
score is dead wrong because just as the scoring of the reduction in the
capital gains tax was dead wrong a few years ago, this scoring is
equally dead wrong and it is wrong for this reason: If that family
business that was reduced to almost nothing has to be sold, then along
with what is sold is the jobs that went with it, the income that went
with it, and the future taxes that were paid because of it.
Think of this for a second. If someone has stock they have to sell
and liquidate in order to pay the one-time capital gains tax, then it
is gone forever from the standpoint of the income production that they
otherwise would pay with dividends year in and year out. Wouldn't we
rather have people hold assets such as businesses and stocks and real
estate and pay taxes on its profitability and its income year after
year after year? Wouldn't we rather that happen than all at once to
take 50 percent, cause the business to be sold, the stock to be
liquidated, the real estate to be divided, and the revenue never to be
paid again? It is short-sighted and it is wrong.
I hope the Members of the Senate, when we come to the cloture vote
tomorrow, will recognize the death tax is the third bite of the apple.
We charge people income tax when they earn income, with what is left
they make investments, and then as those investments pay dividends or
pay income, we tax that, and then we say: When you die, we want half of
that asset. It is wrong. It is wrong for individuals, it is wrong for
family farmers, it is wrong for landowners, and it is wrong for
America.
I urge all of my colleagues when the cloture vote comes tomorrow to
vote yes to bring about a meaningful debate on the repeal of the estate
tax or the death tax, and let's take that third bite of the apple away
from the Government and put it back in the hands of the people, so
those assets, farms, and investments can be productive, not just for
one year, but for a lifetime.
I yield the floor.
The PRESIDING OFFICER. Who seeks time?
Mr. ISAKSON. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DODD. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator should note that he is on majority time by a previous
unanimous consent agreement. Is there objection to the Senator
proceeding? There being no objection, the Senator from Connecticut is
recognized.
Mr. DODD. Will the Chair repeat his statement?
The PRESIDING OFFICER. The Senator is speaking under the majority
time previously agreed to under a unanimous consent agreement. I
presume there is no objection to the Senator proceeding.
Mr. DODD. I hear no objection, Mr. President. Since no one is on the
floor, obviously, that makes it easier.
Marriage Protection Amendment
Mr. DODD. Mr. President, if I can, I wanted to spend a couple of
minutes on a matter that this body voted on this morning. I was
unavoidably absent this morning at a family matter in Rhode Island, so
I was not here for the vote. But I wanted to just take a minute or so
here to say to my colleagues and to others that had I been present this
morning, I would have voted no on the motion for cloture, and had
cloture been invoked, I would have voted against the amendment. I am
speaking of the proposed constitutional amendment that would have
banned same-sex marriages.
Like many of my colleagues who have spoken on this matter, I believe
this is a matter that belongs in the States. This is not a matter that
ought to be a part of the Constitution. I have been here for a number
of years in the Senate, and over the history of this great country of
ours there have been over 11,000--more than 11,000 proposed
constitutional amendments. The Congress and the Nation in its wisdom
over the years have adopted only a handful of those proposals--27 is
the number of amendments that have been adopted since the formation of
our country. The reason for that, of course, is the Founders insisted
that it be not an easy matter to amend the Constitution and that we
ought to amend the Constitution to correct problems in the governmental
structures or to expand the category of individual rights such as the
first 10 amendments achieved in our Nation.
Our Nation's constitutional history clearly demonstrates that change
to our Constitution is appropriate on only the rarest occasions--
specifically, to correct problems in the government structure or to
expand the category of individual rights such as the first 10
amendments which compose the Bill of Rights. Notably, the amendment to
establish prohibition is the only time that the Federal Constitution
was amended for a reason other than those I just mentioned.
It was repealed 13 years after its enactment and has been judged by
history to be a failure insofar as it sought to restrict personal
liberty.
The Framers deliberately made it difficult to amend the Constitution.
They did not intend it to be subject to
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the passions and whims of the moment. Time has proven their wisdom.
Since 1789, when the first Congress was convened, there have been
11,413 proposals to amend the Constitution. Sixty-four have been
offered in this Congress alone. Luckily, only 27 have been successful.
If all or even a substantial fraction of these proposed amendments were
adopted, our founding document would today resemble a Christmas tree, a
civil and criminal code rather than a constitution, and the United
States would be a very different Nation.
It is unfortunate that the majority leadership of the Senate does not
share James Madison's view that the Constitution should only be amended
``for certain, great, and extraordinary occasions.''
Supporters of this proposed amendment would like you to believe that
there is currently an ``assault'' on traditional marriage by some
American couples and families that warrants Federal action in the form
of a constitutional amendment to ``protect'' the institution of
marriage. They have utterly failed to marshal even a minimal degree of
credible facts to support such a claim.
Indeed the facts suggest that there is no such crisis. The Defense of
Marriage Act, DOMA, was enacted in 1996 to provide a federal definition
of marriage and to stipulate that no state should be required to give
effect to a law of any other State with respect to a definition of
marriage.
There has been no successful challenge to the DOMA in the decade
since its enactment. Courts have never identified a Federal right to
same-sex marriage. States have never been forced to recognize an out-
of-state marriage that is inconsistent with its own laws.
And no church, temple, mosque, or synagogue has been forced to
perform marriages inconsistent with the beliefs of those who worship in
them. For Congress to step in now and dictate to the States how they
ought to proceed in this matter thus runs counter to the facts. It also
runs counter to the principles of federalism and personal liberty that
many proponents of this constitutional amendment claim to hold dear.
I am disappointed that we find ourselves spending valuable time on
the Senate floor debating this issue. Less than 2 years ago, the
majority leader brought the same measure to the Floor. It failed by a
vote of 48 to 50. There is no reason to think that it will not fail
again.
It is no coincidence that approximately 5 months before the upcoming
midterm elections the Senator floor is being held hostage by the
majority's misguided priorities. I fear that some of those leading the
charge on this legislation are more interested in dividing Americans
for partisan gain than uniting the country to solve problems.
Make no mistake: married couples are under considerable strain these
days. But the cause of that strain is not the conduct of other American
couples going about their daily private lives. Instead, married couples
and all Americans are feeling the strain of high gas prices, soaring
health care costs, schools in need of reform, a sluggish economy, and a
war in Iraq in which American men and women are fighting with courage.
Yet this administration and others in this body have little to offer to
relieve these strains. Instead, they seek legislation that will only
divide and distract Americans from the common challenges we should be
facing together.
This proposed constitutional amendment is not the best use of our
time. We should be addressing the real needs of American families. We
should be legislating. That is what we are elected to do--to address
issues like autism, underage drinking, the growing problem of obesity
among our nation's children, and the threat of terrorism. But today we
have not been afforded that opportunity. Instead, today feels like
Groundhog Day.
It is another election year and we are here discussing another issue
that has nothing to do with the great challenges of our time.
Only on one occasion did we deviate from that practice and that was
the adoption of the amendment dealing with the prohibition of the
consumption of alcoholic beverages. That was a complete deviation from
the two situations in which the Founders intended that we would amend
the Constitution of the United States.
I might point out that it was only a few years after the adoption of
the amendment on prohibition that it was repealed by the Congress of
the United States and the people across this country.
It would be a mistake, in my view, to repeat another error like that
which was committed in the early part of the 20th century when we
adopted the prohibition amendment.
Supporters of this amendment like to say that this debate is about an
assault on the institution of marriage. I do not believe that to be the
case. I do believe, however, that there is currently an assault on
families. I am disappointed this body is not spending the time
allocated for this debate talking about the important issues families
today. For example, we could be talking about the bill dealing with
autism that my colleague from Pennsylvania and I have authored and we
are trying to get attention on. Obviously the issues of energy prices,
education, health care--there are any number of issues I can think of
that we might have spent time discussing. We should be trying to come
up with some answers rather than debate a question which has marginal
significance and minimal importance for most people and which ought
really to be left to the States.
Let me also suggest that the motivations behind this may not be
helping families but instead inciting a political debate for the
elections coming up this fall. What worries me more than anything else,
however, is I think it is designed to make people angry, to divide us
as a country. I am deeply concerned about the growing divisions
occurring in our Nation. This is a time when we ought to be coming
together, when our leadership ought to be asking us to sit down and try
to come up with answers on some of the overwhelming problems we face--
not problems that are so overwhelming we can't answer them. Instead, we
are spending that valuable time on a matter that is clearly designed to
do nothing more than inflame the passions of people in this country
rather than appealing to calm, to rationality, to common sense, to good
discourse as a way of addressing the underlying issues. This is a great
disappointment.
Again, I would have voted no on the motion to invoke cloture. I am
pleased my colleagues from both parties, in a bipartisan way, rejected
that cloture motion. It was a good conclusion reached here, and I
regret I was not able to be here to cast a vote along with my
colleagues who expressed a similar point of view.
The Estate Tax
If I may, I wish to turn to the matter at hand; that is, the debate
regarding the estate tax. The last time this body was scheduled to
consider legislation to repeal the estate tax, the majority leader
decided to postpone consideration of this bill in the wake of the
devastation wrought by Hurricane Katrina. The general consensus was it
was unseemly for us to be talking about having one-half of one
percent--and that is what we are talking about, one-half of 1 percent
of the population of this country--receive a bonanza, if you will, by
repealing the obligation to share part of their estates to contribute
to the growth and benefit of our Nation. The decision was it would be
unseemly.
In fact, my good friend from Iowa, the chairman of the Finance
Committee, for whom I have a great deal of respect, said, ``It's a
little unseemly to be talking about doing away with or enhancing the
estate tax at a time when people are suffering.''
I agree with my colleague from Iowa. I agreed with him then; I agree
with him now. If it was unseemly to be talking about enhancing the
wealth of the wealthiest in our society at a time when the Nation was
suffering from the devastation of Hurricane Katrina only a few short
months ago, I suggest that problems have not abated so substantially
that we can now make the case that it is no longer unseemly, if you
will, to use his language, to adopt a provision here that would make it
far more difficult for us to address all of our other priorities as a
Nation.
I hope our colleagues will agree and join with others in voting
against cloture on the motion to proceed to what I consider to be
irresponsible legislation.
Today's discussion is about priorities, as it always should be. I
have
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supported lower taxes for working Americans, including responsible
estate tax reform. I think it is wrong to have excessive estate taxes
imposed on ordinary farmers and small businesses owners out there who
try to leave those businesses or land to their families. Because of the
modest incomes most people in these groups make, they could find it
impossible to do so under an excessive tax.
I note the presence of my good friend from Arkansas on the Senate
floor who speaks eloquently about the farmers in her State who have
been left, generation after generation, farms and land for succeeding
generations to continue their great traditions. The Presiding Officer
comes from a State with a strong agricultural tradition. All of our
States have strong small business components, and all of us understand
the importance of allowing those families to pass on to succeeding
generations the ability to continue those efforts. But I hope my
colleagues agree as well, that talking about the total elimination of
this estate tax is, I think, irresponsible. It goes too far when we
start talking about providing such a massive benefit for only the
largest one-half of 1 percent of estates.
I represent the most affluent State in the United States on a per
capita basis. I presume as a percentage of my population I have a
larger number of estates that would benefit from total repeal than most
of the other members of this body, with the exception of my colleague,
Senator Lieberman. I can tell you that the few estates that can benefit
as a result of the distinction we are making between reform of the
estate tax and total repeal seems to go too far, considering the
revenue loss it would mean to our country.
We are talking about a revenue loss on an annual basis that exceeds
the entire amount of money we commit to elementary and secondary
education. Think of that. The entire amount of money in the Federal
budget toward elementary and secondary education would be lost as a
result of the complete and total repeal, rather than a modest,
intelligent, thoughtful, rational reform of this estate tax. We should
not bankrupt our Nation's future for a measure that would deliver no
benefit to anyone outside a few extremely wealthy estates.
I might point out that some of the most wealthy Americans, people who
would benefit the most from this total repeal, have been the loudest,
clearest voices urging us not to do so. We ought to take note that the
Gates family, people like Warren Buffett, people like John Kluge,
people who have made great fortunes in this country and made those
great fortunes in their own time, through creative work, not inherited
wealth, are urging us, despite the fact that they would benefit to the
tune of billions of dollars with a total repeal--listen to the Warren
Buffetts, the Bill Gateses, the John Kluges, when they tell you this
would be an unwise decision to make to just completely repeal a tax
that is so important for continuing our ability to meet our
obligations.
Let's not forget we are a nation at war, with American troops
fighting and dying in Iraq and Afghanistan, at a terrible human and
monetary cost. Repealing the estate tax will cost some $776 billion
over 10 years, which would fully be applied beginning after 2011. Not a
penny of this cost would be offset. It would all be added to our
Nation's debt, which is already now at $8.4 trillion.
I made the case a few weeks ago--how big is $8.4 trillion? If we were
to go out on the Capitol steps out here and hand out a hundred-dollar
bill every single second, 7 days a week, 24 hours a day, how long do
you think it would take to pay off $8.4 trillion? I will tell you the
answer. It would take more than 2600 years--24 hours a day, 7 days a
week, a one-hundred-dollar bill every second, handing it out. It would
take 2,635 years. That is the amount of debt we have accumulated over
the last few years, and now we are about to add to that to the tune of
almost another trillion dollars here if you take what the revenue loss
would be and the added interest cost of some $213 billion. That would
be the revenue loss that would result from repealing the estate tax.
More than a trillion dollars that would benefit no one at all outside
the largest one-half of 1 percent of the estates in the United States;
99.5 percent of the estates in the United States would not gain at all
by the proposals to have a modification or reform of the estate tax.
Each year of repeal on average would cost roughly the same in today's
terms as everything the Government now spends on homeland security and
education.
Over the past 5\1/2\ years, the current administration has radically
altered our Nation's economic and social well-being, in my view. Median
incomes have stagnated, poverty rates have risen, and more and more
people are living without health insurance. Our troops have struggled
with inadequate body armor and other necessities of battle. Farmers,
workers, and small business owners are contending with rising interest
rates, higher energy and health care costs, and growing global
competition. While these problems have grown, the administration has
severely reduced our Nation's ability to meet them by driving our
Federal budget from surplus into deep deficit.
Since the current President took office, the Federal budget has
declined from a surplus of $128 billion to a deficit of more than $300
billion. The national debt has risen to $8.4 trillion. In just 5 and a
half years, the administration has added more debt from foreign
creditors than every other President in the history of the United
States combined--in the last 5 years.
Repealing the estate tax would make these problems far worse, not
better, and further hurt America's ability to address our most pressing
issues.
A few months ago, the administration and the majority of this body
enacted a budget reconciliation bill, the so-called Deficit Reduction
Act. This bill made deep cuts to health care, childcare, and education,
with the burden falling most heavily on working Americans--in
particular on low-income parents and children, the elderly, and people
with disabilities. The American people were told these cuts were
necessary because of the deep budget deficits our country was facing.
Yet here we are today, having been told only a few months ago that this
great budget reconciliation act was necessary, despite the fact that we
are going to ask those who are the least capable in many cases of
providing for their needs, feeling the tremendous pressure they are,
here we are today only a few weeks later being told that we can afford
to take $1 trillion out of the budget to serve one-half of 1 percent of
the estates in this great country of ours.
Where is the logic in that? Mr. President, 99.5 percent of the
estates in our country would not be adversely affected by what we are
talking about. They would not pay an estate tax. Only one-half of 1
percent would. Yet $1 trillion gets lost as a result of that decision,
over the next 10 years, at a time, as I mentioned earlier, when we are
not paying for the war and we find ourselves in tremendous need if we
start talking about education, health care, and homeland security, just
to mention two or three items.
Some proponents of the estate tax repeal have propagated the myth
that the estate tax disproportionately harms farmers and small
businesses by forcing them to sell their family farm or business in
order to pay the tax. This just is not true. It is a scare tactic used
by those who will benefit from repeal to create support for their
cause. In reality, when the New York Times asked the American Farm
Bureau Federation for real-life examples of a family farmer forced to
sell by the estate tax, not a single example could be found. Not a
single one.
Contrary to the misinformation that has been spread, no one but the
very largest estates would ever pay this tax on inherited wealth. This
year, an individual can pass on as much as $2 million and a couple can
pass on as much as $4 million to their heirs, completely free of any
taxation whatsoever. With these exemptions, 99.5 percent of all the
estates in the United States would owe no tax at all. Those that will
owe, only owe on the value of their estate that exceeds the $2 or $4
million that I just mentioned. With the exemption levels scheduled to
rise in 2009 to $3.5 million for individuals and $7 million for
couples, the percentage who will owe a single cent in estate tax falls
to a mere 0.3 percent of the population that would pay any estate tax
at all.
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So 99.7 percent of the American population would have no obligation
whatsoever. Yet we are about to enact legislation here that would
repeal this altogether.
I do not understand that at all. How do you explain to people today
that your child or your spouse serving in Iraq or Afghanistan? We are
being told we don't have enough money for body armor or to up-armor the
vehicles they drive, or that homeland security has to be cut because we
don't have the revenues to support it. Yet we turn around and do
something like this? Where is the logic in this? Under these rules, the
number of Americans affected by the estate tax has declined
dramatically already under current law, from 50,000 people in 2000 to
only 13,000 today, and by 2009 the number will fall to 7,000. Out of a
nation of 300 million people, 7,000 people in our 50 States would not
be obligated to pay any estate tax at all.
Seven-thousand out of three hundred million, yet we lose $1 trillion
in revenue.
Again, where is the logic or common sense in a proposal like that
given the damage it would do?
As I said, my State of Connecticut ranks consistently year after year
at or near the top of the Nation in per capita income and other such
measures. In my State and across America, people of all incomes have
worked hard, obviously, to get where they are.
I don't like class warfare. I don't like drawing those distinctions.
Many of these people I mentioned, pay taxes and have worked hard, and I
respect that.
I urge my colleagues to listen to some of the men and women who have
accumulated the greatest wealth as a result of their ingenuity and hard
work. What are they saying about this in terms of the benefit to the
country and the cost it would have?
In my State, I probably have a greater percentage of constituents
than almost any other State in the country who would benefit if there
is a total repeal. I stand here today, telling you that an overwhelming
majority of the very people who would benefit from this, think it goes
too far; that we are going too far with this proposal.
I urge my colleagues to join those who have urged us to be more
modest, to have a more commonsense approach than repeal or near-repeal.
Again, it would be a major failure to lose the revenue equal to that
which we spend on all of the education for elementary and secondary
school students, all of the spending on homeland security, to once
again drive us further and further into debt. I think it is a great
tragedy to be passing that on to the coming generations, to say we want
to give a tax break only to the top five-tenths of 1 percent, or three-
tenths of 1 percent of the population. That is an indictment that
future generations will look back on and ask: What were they thinking
at the beginning of the 21st century that they would take such a
significant step as to deprive this Nation of the ability to have the
revenue we need in order to meet our obligations?
When the vote on cloture on this matter occurs, I urge Members to
vote no.
There is a way to do this, and I think many of us are willing to
support responsible reform in the estate tax area. But the notion of
total repeal, I think, is highly irresponsible.
I urge my colleagues to join in the condemnation of that suggestion.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arkansas is recognized.
NATIONAL HUNGER AWARENESS DAY
Mrs. LINCOLN. Mr. President, I want to take this opportunity to spend
a few moments to talk about the 36 million Americans, including 13
million children, who live on the verge of hunger.
I want to divert our conversation a little bit. I have actually
waited quite some time to be able to speak about it. I started
yesterday trying to get just a few minutes on the floor to bring about
an awareness because today is National Hunger Awareness Day.
I often think about the children and the working American families
who struggle to make ends meet. But I focus my thoughts and prayers on
them today because today is National Hunger Awareness Day, 1 day out of
our year. I started yesterday trying to grab 5 minutes where we could
bring our attention to something so incredibly important and something
so easy to fix.
There is a time when Americans are called to remember the hungry
children and adults living across our great Nation. Most importantly,
it is a day when we are called to put our words into actions and to
help end hunger in our communities and across America.
I guess the realization that I have come to in these last 24 hours
is, I have searched just to capture 5 minutes on the floor of the
Senate. I suppose I could have submitted my comments for the Record.
And maybe I am foolish to think by coming to the floor I could spark
just a little bit of interest in my colleagues or others across this
Nation to think about an issue that affects all of us--an issue where
our fellow man is hungry, or another mother has a child out there that
is suffering from hunger, that we can't stop for just a moment and
realize that hunger is a disease that has a cure. It has a cure--a cure
that we can provide, a cure that we all know about. And, if we took the
time to think about it, to address it, we could actually cure this
disease.
It is hard to find 5 minutes, it is hard to come down here and really
make the difference that we want to make, but I believe this day and
this issue are far too important to miss again the opportunity to talk
about 36 million Americans living in food insecurity.
Two years ago today, I joined with my friends and colleagues, Senator
Smith, Senator Dole, and Senator Durbin to form the Senate Hunger
Caucus. At that time, we pledged to raise awareness about the hunger
experienced by millions of Americans, a majority of which are children
and elderly, and to forge a bipartisan effort to end hunger in our
Nation.
I am proud that we are working with local, State, and national
antihunger organizations to raise awareness about hunger, to build
partnership, and develop solutions to end hunger.
An example of a bipartisan initiative to end hunger is the Hunger
Free Communities Act which I introduced along with Senators Durbin,
Smith, and Lugar. This bill calls for a renewed national commitment to
ending hunger in the United States by 2015. Yet we find it hard to find
5 minutes to focus our attention on such an incredible issue.
It reaffirms congressional commitment to protecting the funding and
integrity of Federal food and nutrition programs, and creates a
national grant program to support community-based antihunger efforts in
fighting the disease on the battlefield, right there at the line of
attack in our communities.
I am also proud to be a cosponsor of the FEED Act, the bill that
would award grants to organizations that effectively combat hunger
while creating opportunity by combining ``food rescue'' programs with
job training--not just feeding a fish but teaching a man or a woman how
to fish so that they do not just eat for a day, that they feed
themselves for a lifetime.
Close to one-third of the food in this country that is processed and
prepared goes to waste--one-third, whether it is in places such as
Washington where there are multiple receptions going on at one time,
banquets and other events that happen across the country. One-third of
that food goes to waste.
This bill would help organizations safely recover unserved or unused
food while providing culinary skills training to unemployed
individuals. Two birds with one stone--using something that otherwise
would be thrown away. How simple that seems and yet how hard it is to
bring it forward into the light of day and talk about making that
effort a reality.
I urge my colleagues to support these worthy and commonsense pieces
of legislation.
If it is so hard to find 5 minutes just to talk about it, I wonder
how long it is going to take us to pass these commonsense pieces of
legislation.
Some people may ask: What can I do to help end hunger in America?
I want to talk about some of the ways Americans can help join the
hunger relief effort. Acting on this call to feed the hungry is
important, and I urge all Americans who are able to take part in ending
this disease.
One critical component of this effort is the willingness of Congress
and the American people to support the Federal food and nutrition
programs. These programs provide an essential
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safety net to working Americans, preventing the most vulnerable among
us from suffering and even dying from malnutrition. Our continued
investment in these programs is vital to the health of this Nation.
Why does it come to mind right now? Think about all of those children
across this great country who have received the nutrition they need in
school during the school year as school lets out for the summer. Where
will they go for that nutritious breakfast? Where will they go for that
lunch that they need to sustain them because there is no dinner waiting
at home?
These are critical and important programs. Without spending the time
and the effort to not only make them a reality but properly fund them
in a way where they can actually meet the needs of the children across
this country will take our attention.
The most significant of these programs is the Food Stamp Program. It
provides nutritious food to over 23 million Americans a year. More
Americans find themselves in need of this program every single year. As
their wages are stagnant, as they have less and less opportunity to
climb a ladder of opportunity because they may not be getting the
education they need, they are finding more and more dependency on
programs like this to be able to feed their families.
I understand our current budget constraints. I know we all do. Yet I
didn't create this mess. The spending that has been freewheeling in
this Congress over the last several years has been unbelievable. Yet as
my colleagues mentioned, we failed to adequately support and fund
issues such as our veterans' benefits; issues like educating our
children and providing them with the skills they need to be
competitive.
I come here to talk about the main sustenance of life. I understand
these budget constraints, but I believe as one man to another, as one
woman to another, one human being to another, food, simple nutrition,
is something we cannot turn a blind eye to. Even in these tight fiscal
times, I believe that we have to maintain our commitment to feed the
hungry among us. We must first protect programs such as the Food Stamp
Program, the National School Breakfast and School Lunch Program, the
Summer Feeding Program, the WIC, and the Children and Adult Care Food
Program. These are all critical programs that keep Americans who are on
the verge of hunger and destitution from finding themselves there
permanently.
Another important tool for local organizations is the Community Food
and Nutrition Program, and with support from this program, the Arkansas
Hunger Coalition has sponsored a Web site, a quarterly newsletter, an
annual conference, a mini grant program, along with many civic, school,
and community presentations on hunger which raise public awareness and
promote innovative solutions.
Organizations such as the Arkansas Hunger Coalition operate on
limited budgets. Yet they are a vital source of information for food
pantries, soup kitchens, and shelters that together work to share the
importance of food security to the people of our home State of
Arkansas.
I urge Americans to contact their congressional representatives to
voice their support for these nutritional programs. This critical issue
of ending hunger, the unbelievable number of hungry Americans is
something that we have to bring greater awareness to not just today but
every day.
I urge my colleagues to protect them from cuts and structural changes
that will undermine their ability to serve our Nation's most vulnerable
citizens.
In addition to the Federal food programs, eliminating hunger in
America requires the help of community organizations. Government
programs provide a basis for support, but they cannot do the work
alone. Community and faith-based organizations are essential to
locating and rooting out hunger wherever it persists.
We rely on the work of local food banks and food pantries, soup
kitchens, and community action centers across America to go where
government cannot. The reason I have stayed so persistent in coming to
the floor of this Senate to talk about this issue on a day that we have
designated for awareness is because I tried so desperately to put
myself in the shoes of other mothers who are not perhaps as lucky as I
am. When a child looks into your eyes and says: Mommy, I am hungry,
they have no response, whereas I do.
This is a critical issue for us as a nation. It shows where the
fabric of our community and our country lies. It shows where our
priorities are, and it shows who we are as Americans and what values we
truly grasp for our fellow man.
Recently, I have been so proud as my twin boys have gotten
invitations to birthday parties. There is a note at the bottom of the
invitation. It says: Please don't bring a gift, but in lieu of a gift
would you please give to a worthy organization, our local food bank or
shelter.
My children with their birthday coming up soon said: Mom, we don't
need those gifts again this year. Let's add something for those people
who need it the most. Let's make sure that we have fun at our party but
that we don't take the gift that we don't need and instead ask our
friend to help us in feeding the hungry and sheltering the homeless.
I will try, and I know my colleagues will, too, to work as hard as we
can to provide the resources these community organizations need to
continue with the difficult but necessary work they perform, to
encourage our neighbors, our children, our schools, and others to be as
actively involved as they possibly can.
Private corporations and small businesses also have a role to play in
eliminating hunger in our great Nation. Our corporations and small
businesses generate most of our Nation's health and have throughout
history supported many of our greatest endeavors. Many corporations and
businesses already contribute to efforts to eliminate hunger. I hope
others will begin to participate as opportunities to do so present
themselves in the future.
A couple of great examples of how business and nonprofits can partner
to feed hungry people occurred these past few months. Together with
America's Second Harvest, Tyson Food, in my home State of Arkansas,
donated 6 million pounds of protein--one of the more difficult elements
of nutrition to get into food banks is protein--6 million pounds of
protein from one corporate citizen. Wal-Mart raised $10 million to
support food banks all across this country. I am so grateful to these
companies and to nonprofit organizations for their leadership in this
effort to feed those who have limited access to food and nutrition.
I have also seen some of the important work being done by
organizations in the local Washington, DC, area. We see it all around
us. All we have to do is open our eyes and make sure we are aware. The
Arlington Food Assistance Center works to provide food to those in need
in the Arlington, VA, area. I have supported some of their efforts
through the local school drive. Not only is it important in terms of
providing the needs of food assistance through the Arlington food bank
system and the assistance center, but think what it does for our
children. It gives them a learning experience of how they, too, can
give back not just to their community or their school but to their
fellow man, someone desperately in need of a nutritious meal, a family
who needs a nutritious breakfast.
Think of what it teaches our children. Despite the fact that
Arlington County is one of the wealthiest areas in the country, plenty
of local residents do not have enough to eat. The Arlington Food
Assistance Center seeks to remedy the problem by distributing bread and
vegetables, meat, milk, eggs, and other food items. Our church group
routinely goes for a ``gleaning'' program where local farmers allow us
to get into the fields and collect part of their crops that have been
left in order to provide fresh fruits and vegetables in our area food
banks.
Lastly, this effort needs the commitment of individual Americans. Our
greatest national strength is the power that comes from individual
initiative and the collective will of the American people. I believe we
are called by a higher power to care for our fellow man and our fellow
women.
As a person of faith, I feel I am called to serve the poor and the
hungry. I know many of my colleagues agree. If we believe in this call,
we must live it every day in our schools and in our
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homes, in our workplaces and our places of worship, in our volunteering
and in our prayer. This personal responsibility is a great one, but it
holds tremendous power. As we have seen throughout American history,
when individuals in this Nation bind together to serve a common cause,
they can achieve the greatest of accomplishments. By sharing the many
blessings and resources our great Nation provides, I am confident we
can alleviate hunger, a disease that we know there is a cure for, both
at home and abroad.
I ask all of my colleagues to take a moment to honor on this day of
awareness the very brave men and women and children who live in food
insecurity and whom we have an opportunity to serve.
Mr. DURBIN. Will the Senator from Arkansas yield for a question?
Mrs. LINCOLN. Absolutely, I yield to my good friend from Illinois who
has done so much on the issue of hunger.
Mr. DURBIN. Let me say at the outset it is my great honor to cochair
with the Senator from Arkansas this effort relative to hunger, hunger
awareness. It has brought us together in terms of offering resolutions,
in terms of offering legislation, filling grocery bags. We have done a
lot of things together in this effort.
I am fortunate to work with Senator Lincoln. She comes to this issue
driven by her faith and her family. They are linked together in her
speech today and in her life. There is hardly a decision she makes--I
know from having worked with her for so many years--that is not driven
by her understanding of the impact of life on her family and what it
means to so many other families.
As we have met in a variety of places, filling boxes and bags with
groceries, we both had cause to reflect on what leads to hunger in a
prosperous Nation. How does a country so rich as America end up with
hungry people? How can this be? Yet we know, as she knows, it turns out
to be a lot of people are working hard to avoid hunger. It can be a
mother with a low-wage, minimum wage job, a mother who has been stuck
in a minimum wage that this Congress has refused to increase for 9
straight years. Think about that: $5.15 an hour for 9 years. This poor
mother, trying to keep her family together, put her kids in a
babysitter's hands or daycare, and then put food on the table finds
that many times one job, sometimes two jobs are not enough, and she
ends up at that food pantry.
We expect the poorest of the poor to come in there and many times
find the working poor. That is the face of hunger found with many of
our senior citizens. I cannot imagine these poor people, many of them
alone in life, struggling with medical bills and fixed incomes, never
knowing where they are going to turn for a helping hand, who stumble
into a food pantry where they can find a loving face, a warm embrace
and a bag full of groceries to keep them going.
I found that this last week when I was up in Chicago at the Native
American Center on the North Side where a lot of American Indian
families rely on their pantry. I said hello to the ladies who were
running it. They said, sadly: Senator, business is just too darn good
here. There are a lot of people coming in from all around the city of
Chicago.
I find it in my hometown, Springfield, IL, at St. John's bread line,
which has been there for years. I have been over there serving food
once in a while. So many people rely on them.
In Chicago, only 9 percent of the half-million people who seek
services from the Chicago Food Depository are homeless. The rest have a
home to go to but nothing in the refrigerator and nothing in the
cupboard. These people cannot afford the food they need.
Think of that: 37 million people in America, this great and
prosperous country, living in poverty; many low-income families
supported by jobs that do not pay a livable wage in a country where
this Congress will not enact a law to raise that minimum wage. It could
be that paying for health care has caused many of these families to be
unable to afford food.
America's Second Harvest released a national hunger study showing
that in Chicago 41 percent of households neglected their food budget to
cover utility costs. You can understand that in the cold winter in
Chicago. Last year, natural gas bills went up 20 percent. We were
lucky. It could have been worse. And many of these families had to
decide: Pay the utility bill, risk a cutoff or buy some food? It may be
a combination of factors, but the food budget is often the first thing
they cut.
Today, June 7, is National Hunger Awareness Day. Senator Lincoln and
I have come to the Senate encouraging our colleagues and all those
following this debate to celebrate and commend the heroic efforts of so
many emergency food banks, soup kitchens, school meal programs,
community pantries, and so many others that make a difference in
fighting hunger.
I don't know if Senator Lincoln's hometown is the same as mine, but
there is a day each year when the letter carriers all pick up food. You
put out the bags of food for them. They pick them up. God bless the
letter carriers; they collect that food, give it to the pantries to
give to hungry people. Here are men and women who probably are footsore
from all the miles they have to walk, and they walk an extra mile for
the hungry of America. My hat is off to them.
Federal nutrition programs are critically important and they are not
reaching enough people. Many parents still skip meals so their kids can
eat. Many kids do not have the balanced meals they deserve.
Let me add, too, I am sure the Senator, as a mother of twins, will
appreciate this. When I go to school lunch programs, sometimes it is
depressing. Giving kids a helping of tater tots, next to a slice of
pizza is not exactly my idea of fighting obesity, encouraging
nutrition, and feeding kids the right things.
We need to have good nutrition programs. We need to work overtime to
make sure the food given to these kids does make a difference. At the
Nettlehorst School on Broadway Avenue in Chicago, which I visited a few
weeks ago, we opened a salad bar for the kids for school lunch. Guess
what. They were all crowded around, filling up their salad trays. They
will eat good food if you present it in the right way. We need good
nutrition programs with good food to make sure our kids grow the right
way.
Hunger drains the strength of the people who, for a variety of
reasons, are unable to provide enough food, or the right kinds of food,
for themselves or their family. A few blocks away, near a school over
on Pennsylvania Avenue, in Southeast Washington, DC, get there early
enough in the morning, around 8 o'clock, stand by the drugstore and
watch these kids file in to buy bags of potato chips and pop or soft
drinks to eat as breakfast on the way to school. Too many of these
children rely on that for their only nutrition. I wish their parents
could do better or do more. I wonder, sometimes, if they are able to. I
don't know if they are. But what those kids are buying costs them
money. Maybe those parents could have done a better job. Maybe the
school could do a better job. As a Nation, we all need to do a better
job.
In a land of abundance, the kind of sacrifice that many families have
to make to feed their family members is deplorable and unnecessary. We
should end hunger in the United States. Working together, we can.
I salute my colleague from the State of Arkansas. The hour is late,
and she has a couple of kids at home waiting for her to get home, maybe
to fix dinner. But whatever the reason, she took the time to come to
the Senate tonight to remind all of us of our civic responsibility, our
social responsibility and our moral responsibility to view hunger as a
challenge that we can face and conquer.
I see the Senator from Alabama is probably here to speak. I have
another statement to make, but I will defer to him since he has been
waiting. Then when he is finished, I will ask to speak again.
The PRESIDING OFFICER (Mr. DeMINT.) The Senator from Alabama.
Death Tax
Mr. SESSIONS. Mr. President, with regard to the death tax, I will be
offering some remarks later in the process that deal with the estimated
cost of the elimination of this tax which does not account for the lack
of stepped-up basis that will not occur if the death tax is eliminated
and other factors that demonstrate that the allegations being made
about large losses of revenue are not true. That is an important
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factor in the debate. I will not go over that tonight.
I take this moment on another subject to read to the Senate a letter
we received, received by Senator Frist, the majority leader, today,
from the administration, William Moschella, U.S. Department of Justice.
He deals with the Native Hawaiian bill.
I said earlier today, the Native Hawaiian legislation is exceedingly
important. It has to do with whether this great republic is going to
allow itself, through the vote of its own legislature, to create within
its own boundaries a sovereign entity, a sovereign Nation, that,
according to those who support it, even on the Web site of the State of
Hawaii, indicates that it could result in an independent nation being
created. So any principled approach--and the Senate, of all bodies in
the Government, ought to be principled; we should think about the long-
term--to dealing with this issue should convince us in the most stark
way that this is not a path down which we should travel. This is not a
way this Nation should go.
We should say no now and no to any other attempt to divide, balkanize
or disrupt the unity of our Nation. We had a Civil War over that. The
Presiding Officer is from South Carolina. I am from Alabama. That issue
was settled in the 1860s. We don't need to go back to it.
It is important that we read the language of the Department of
Justice and how they deal with it. It is very similar to strong
language from the U.S. Civil Rights Commission that also voted to
oppose this legislation.
The letter is to Majority Leader Bill Frist:
Dear Mr. Leader: The Administration strongly opposes
passage of S. 147. As noted recently by the U.S. Civil Rights
Commission, this bill risks ``further subdivid[ing] the
American people into discrete subgroups accorded varying
degrees of privilege.'' As the President has said, ``we must
honor the great American tradition of the melting pot, which
has made us one nation out of many peoples.'' This bill would
reverse that great American tradition and divide people by
their race. Closely related to that policy concern, this bill
raises the serious threshold constitutional issues that arise
anytime legislation seeks to separate American citizens into
race-related classifications rather than ``according to
[their] own merit[s] and essential qualities.'' Indeed, in
the particular context of native Hawaiians, the Supreme Court
and lower Federal courts have invalidated state legislation
containing similar race-based qualifications for
participation in government entities and programs.
While this legislation seeks to address this issue by
affording federal tribal recognition to native Hawaiians, the
Supreme Court has noted that whether native Hawaiians are
eligible for tribal status is a ``matter of dispute'' and
``of considerable moment and difficulty.'' Given the
substantial historical, structural and cultural differences
between native Hawaiians as a group and recognized federal
Indian tribes, tribal recognition is inappropriate for native
Hawaiians and would still raise difficult constitutional
issues.
Sincerely,
William E. Moschella,
Assistant Attorney General.
I am pleased the Department of Justice has given this letter to us.
It represents an opinion of the agency of Government charged with
justice. The Department of Justice is well aware of equal protection
requirements. They are well aware of voting rights and the 15th
amendment. They are well aware of all of the issues involving tribal
questions. They have to deal with that on a regular basis. They
understand this. This is part of what they do. The import of this
letter is to say that the Native Hawaiians do not comply with tribal
requirements. Indeed, a lawyer for the State of Hawaii has admitted as
much in previous filings with the Supreme Court. It is not a tribal
situation. It is a unique situation.
We are going to create under the bill, if the bill were to become
law--hopefully, it will not, but I am troubled by the prospect of maybe
even proceeding to this bill tomorrow. It is almost breathtaking to me
that that would occur. But what we will see as we go forward is that we
are talking about creating an entity, a sovereign entity which will be
controlled by individuals who are given a right to vote. And their
right to vote in this entity will be entirely contingent upon their
race.
Indian tribes were different. Indian tribes were entities with long-
established governing councils. They are native groups that have had
centuries of cohesion. Many of them entered into treaties with the
United States and they were given certain rights and privileges. But
Hawaii came into the Union; 94 percent voted to come into the Union.
They bragged and were quite proud of their melting pot reputation. They
never suggested that they would later want to come back and have this
sovereign entity be created. The reason it is fundamentally unfair is
that there was a queen in Hawaii in the 1880s, but she did not preside
over a tribe. She didn't preside over a racial group. She presided over
the people in her territory of all races and entities. There were
Asians, Irish, Filipinos, Chinese, and others that were there. They
would not get to vote in this race-based government, even if they were
there at the time she was queen. And she never pretended that she was
presiding only over Native Hawaiians. Of course, I don't know how you
could say a third-generation Irish or Chinese American or Japanese
American who was in Hawaii, they are not a Native Hawaiian anyway, but
that is the way they are defining this. There is only that certain
racial group.
So these would not be able to participate, even though they were
multigenerational residents of Hawaii at the time they became a State,
at the time the queen's government was ended.
It is not the right thing to do. It would create a precedent of far-
reaching implications and would jeopardize the unity and cohesion of
our Government and would, for the first time, create a sovereign entity
within the United States. You are not allowed to vote in it unless you
belong a certain race.
It is a bad idea of great significance. We should not go down that
road. I hope the Senate will not.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DURBIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Chicago Schools
Mr. President, in 1932, America had suffered through three grinding
years of the Great Depression. Millions of Americans were out of work
and out of hope. Many people feared that capitalism, as we knew it, and
democracy had failed. Campaigning for President that year, Franklin
Delano Roosevelt promised the American people bold, persistent
experimentation to alleviate the crisis facing this Nation.
He said: It is commonsense to take a method and try it. If it fails,
admit it frankly and try another. But above all, try something.
I have just finished a book by Jonathan Alter of Newsweek about the
first 100 days of Franklin Roosevelt's Presidency. If there is one
thing that really was the hallmark of that Presidency, it was Franklin
Roosevelt's boldness, his willingness to try new ideas. He just wasn't
going to give up on America. He believed that there was no crisis, no
challenge we face that could not be overcome.
For the last 5 years, the Chicago public schools have been led by a
team of visionary leaders who also believe in bold, persistent
experimentation. Through their hard work and willingness to try to find
new solutions, Chicago Public School Board President Michael Scott and
Chicago public schools CEO Arne Duncan have helped transform Chicago's
school system into a national model for public school reform.
This past weekend, Michael Scott, my friend, announced that he will
be leaving his position as president of the Chicago public school board
this summer. Earlier today I met with him and Arne Duncan in my office
in the Capitol. I have every confidence that Chicago public schools
will remain a national model for improvement under the leadership of
Arne Duncan and whoever the next school board president may be. I look
forward to updating the Senate in the future about Chicago's continued
progress and our determination to truly leave no child behind.
Some may not remember, but former Secretary of Education William
Bennett went to Chicago and pronounced that school district as the
worst in America. That may have been an exaggeration at the time, but
not by much. Some would have given up at that
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point, and many cities have. But not the city of Chicago. They made a
conscious decision to change that school system.
Mayor Daley, Paul Valles, Arne Duncan, Michael Scott, and Gary Chico,
these were all names of leaders who stepped up, with many professionals
giving them support, and accepted the challenge to turn that school
district around.
Let me speak about Michael Scott in particular. His service has meant
so much to the Chicago public schools, to the city of Chicago, and I
believe, with his example, to the Nation. Michael Scott grew up on the
west side of Chicago, the Lawndale neighborhood. He didn't train
himself to be an educator. He went to Fordham University in New York
where he earned a degree in urban planning. He moved back to the west
side after his college years.
He started in Chicago politics as a housing activist in the same
Lawndale neighborhood where he was born and raised. In the tumultuous
time he lived, Michael Scott stood out as a consensus builder.
Eventually he served under three different Chicago mayors: Jane Byrne,
Harold Washington, and Richard Daley. Five years ago tomorrow, Mayor
Daley tapped Michael Scott as the first member of a new team charged
with the daunting mission of keeping Chicago public schools a national
model for reform.
At the time he was a successful businessman and executive of AT&T.
When Michael Scott's appointment was announced, he said: This is not
about me; it's about the children.
For the past 5 years, Michael Scott has kept his word. Listen to
these statistics, if you want to understand how far the Chicago public
schools have advanced due to the hard work of the people I mentioned
earlier and Michael Scott.
In 1992, nearly half of Chicago's elementary schoolchildren tested in
the lowest 20 percent in reading and math compared to other students
across America. Now fast forward 12 years to 2004. Less than 25 percent
of Chicago's students tested in the bottom 20 percent and student
performance has improved since 2004. That is real progress, real
progress against great challenges. Michael Scott believes that parents
are the children's first and best teachers, and he has worked hard to
make parents active partners in the education of their children.
An annual 2-day conference that he personally founded, entitled ``The
Power of Parents Conference,'' has been attended by more than 4,000
Chicago parents since 2002. The belief that every child in every
neighborhood has the right to attend a good public school, along with a
commitment to bold persistent experimentation, are the foundation of
Mayor Daley's Renaissance 2010 School Improvement Plan.
Under that plan and with the leadership of Mayor Daley, Michael Scott
and Arne Duncan, Chicago has pushed to replace approximately 207
underperforming schools with 100 new innovative schools, including
charter and small schools.
Michael Scott is a product of the Chicago public school system
himself. Michael brought an unusually broad range of experience to his
job as one of the leaders of that system. His resume includes work in
community advocacy, corporate management, urban development, and local
government administration. He built new partnerships with all of those
worlds to help improve Chicago's public schools.
In 2003, the Chicago public school system established the privately
funded Chicago board of education textbook scholarship program. The
program awards a $1,000 scholarship to one graduating student from each
of the city's 85 public high schools. The scholarships are funded by
private business, many of which donated money on the spot when they
heard Michael Scott make his appeal to fund this program.
Also under Michael Scott's leadership, Chicago public schools
established a new office of business diversity to help Chicago's
minority and women-owned businesses navigate the system's complex
bidding process and ensure that they can compete fairly for contracts.
While student scores have gone up, spending in some areas has gone
down, thanks to the improved fiscal management in the public schools.
One example: By restructuring the transportation system, Chicago public
schools saved $14 million--$14 million more that can be spent to teach
the kids.
Under Michael Scott's leadership, the bond rating for the Chicago
public schools was upgraded from A to A-plus, which will produce even
more savings for taxpayers and more funds for the kids. Someone once
said that the real test of faith in the future is to plant a tree.
Before signing on as school board president, Michael Scott served as
president of the Chicago Park District. In that job, he saw that plenty
of trees were planted. He strengthened the park district's finances,
which is widely accredited with making neighborhood parks one of the
best features of one of the best cities in America.
As board president of Chicago public schools, Michael Scott helped
plant something even more important to our future than trees. He helped
plant the seeds of knowledge in the minds of tens of thousands of young
people. Together with Chicago students, parents, educators, and
business and community and political leaders, he has produced a model
for public school improvement from which all of America can learn.
While Chicago public schools will miss his leadership, they and the
children who depend on him will continue to benefit for years from
Michael Scott's outstanding public service these past 5 years.
In closing, I will quote from an editorial that appeared in the
Chicago Defender newspaper on April 28, 2003, about a third of the way
through Michael Scott's tenure. The editorial was entitled ``Successful
students will be Scott's, Duncan's Monument.''
Michael Scott and Arne Duncan are monument makers. Not in
the usual sense--the one that explains the ancient pleasure
taken by politicians who create structures commemorating
something that's a recreation of their self image.
Nor in the sense that Mesopotamia's Nebuchadnezzar built
Babylon's Hanging Gardens in the sixth century B.C., one of
the seven wonders of the world. Nor in the sense that his
successor Saddam Hussein erected bronze statues of himself,
monuments that came tumbling down recently with a noticeably
historic thump.
Scott, President of the Chicago Board of Education, and his
chief executive, Arne Duncan, are building neither stone nor
bronze images.
The two educators are building a human monument that will
rise and flourish in the term of educated, productive
graduates of Chicago's public schools. . . . Future students
will thrive in each newly renovated school. . . . That will
be Scott's and Duncan's monument.
As Michael Scott's tenure closes at the Chicago public school system,
I want to acknowledge the fine contribution he made with his public
service, both in the park district and the Chicago public schools. He
is such a talented man that he has brought his talent and given his
time to help others time and time again. That is the true definition of
public service.
I wish Michael the very best in his next endeavor. I am sure it will
include not only the private sector, but also a public commitment
because he is a person who believes that is part of our civic
responsibility. I thank him for all of his leadership in the Chicago
public school system, and I wish him and his family the very best in
the years to come.
Estate Tax
Mr. President, at this moment in history, we are considering the
estate tax. It is one of the many taxes that Americans face. Some have
characterized it, with a very effective public relations campaign, as
the ``death tax.'' They have been so good at describing it as a death
tax as to convince many people across America that when you die, you
pay a tax to your Federal Government. And unless you have been through
a death in the family that you followed closely, you might be misled
into believing that.
In fact, the public relations campaign has been so good in
characterizing the Federal estate tax as a death tax that I had an
experience a couple years ago that I shared with my colleagues in the
Senate. I drove out to Chicago O'Hare to take a flight to Washington. I
stopped at the sidewalk there, United Airlines, and handed over a bag
to be checked in. The person checking my bag took a look at me and
looked at the bag and said, ``Senator, please, if you don't do anything
else, get rid of the death tax.'' I didn't have the heart to tell that
baggage handler that unless he won the Powerball or the Mega-
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million lottery soon, he would not have to worry about it because, you
see, the so-called death tax is an estate tax that is paid by 2 or 3
out of every 1,000 people who die in America each year. That is .2 or
.3 percent of the people who die in America pay the tax. It is a very
narrowly gauged and narrowly directed tax to the wealthiest people in
America.
If you listen to the argument by the Republicans on the floor of the
Senate, you think that this is an onerous, unfair tax, borne by some of
the most deserving, hard-working, common people in this country, who
struggle day to day to get by, and then find after they have passed
away that the greedy hands of Government reach into their estate and
yanks thousands of dollars out of it. That is not even close to
reality. So we are actually going to debate on the floor of the Senate
the notion that we need to, if not repeal, virtually repeal the estate
tax in America.
It is interesting to note that this estate tax is one that affects
very few. It is also interesting to note the context of this debate.
This was supposed to come up about 9 months ago. We were supposed to
repeal the estate tax on the wealthiest people in America, but then God
intervened. Hurricane Katrina struck the Gulf coast. For 24 hours, we
watched on live television as our neighbors, fellow Americans,
suffered. Some died, some drowned. Many were perched on their roofs
praying to be rescued. Then we saw the devastation of the flood.
The sponsors of this estate tax repeal decided this may not be the
best moment to cut taxes on the wealthiest in America. Senator Chuck
Grassley of Iowa, a man I greatly respect, said as follows on September
14 of last year:
It's a little unseemly to be talking about eliminating the
estate tax at a time when people are suffering.
Senator Grassley was right. But I say to him that it is still a
little unseemly to bring up this issue of eliminating the estate tax on
the wealthiest people in America when so many people are still
suffering around this country. We know what is happening in New
Orleans, that devastation still has been unaddressed and people are
still out of their homes, hospitals are unopened, schools are unopened,
and families are still separated from communities and neighborhoods
that they called home. It is still there.
Senator Grassley's point is still there as well. It is unseemly for
us to be reducing the revenues of this country by cutting taxes on the
wealthiest people at a time when there is so much need.
People ask, what could we do with this estate tax? If you took the
revenues that we will be taking out of the Federal Treasury by this
reduction in the estate tax, here is what you could do with those
revenues: You could provide health insurance for every uninsured child
in America and have enough left over to give them full college
scholarships or give every family in America a $500 tax cut or
eliminate 75 percent of the shortfall in Social Security, thus buying
years of longevity and stability for Social Security, or provide clean
food and water to the 800 million people on Earth who lack it or pay
for the war in Iraq for the next 10 years.
It is not an insignificant amount of money that we are talking about
here. The elimination of the estate tax would take from the Federal
Treasury funds which could have been used for tax relief for working
families. Instead, this Republican proposal is to give a tax cut to the
wealthiest people in America.
How many people pay this estate tax? This pie chart tells it all. In
2009, only .2 percent of estates in America will be subject to the tax.
Two or, at most, 3 out of every 1,000 people who die will pay any
estate tax whatsoever. And now the Republican leadership has decided
these people need a break.
Senator Lautenberg of New Jersey decided to find out how repealing
the estate tax would affect three people. The first one was the Vice
President. Under this proposed estate tax cut from the Republican side,
it means more than $12 million in Federal tax liability will be
eliminated for the Vice President. And then Paris Hilton, with her
little Chihuahua there, it is $14 million for her. Lee Raymond, former
CEO of Exxon, a man who was given a $400 million going-away gift at his
retirement by ExxonMobil--well, the repeal of the estate tax gives Mr.
Raymond another going-away gift of $164 million in tax breaks.
These are truly deserving people, don't get me wrong. When I look at
Ms. Hilton, who looks like a lovely young lady, I can see how this $14
million could have a significant positive impact on her otherwise very
spare and Spartan lifestyle.
You wonder how in good conscience we can be debating tax cuts for the
wealthiest people in America when there are so many things, so many
compelling reasons for us to be more serious about in the work that we
do in the Senate. This effort reflects the same twisted priorities that
the Republican leadership continues to bring to the floor of the
Senate.
We just have spent--wasted, I might add--the better part of the week
of the Senate's time on the so-called marriage protection amendment. It
was called for a vote after all sorts of fanfare and announcements from
the White House, and the final vote was 49-to-48. This proposal for a
constitutional amendment didn't even win a majority of the Senators
voting; only 49 voted for it. It certainly didn't come up with the 60
votes it needed to move forward in debate. It wasn't even close to the
67 votes that are needed to enact it.
Why did we waste our time? Because the Republican leadership in the
Senate knew that for political reasons they had to appeal to those
folks who believe this is a critically important issue. They want to
fire them up for the next election. Even though the American people,
when asked, said that this so-called gay marriage amendment ranked 33rd
on their list of priorities, they had to move it forward.
Now comes another plank in their platform for the November election,
the estate tax. The wealthiest people in America are pushing hard for
this estate tax. This morning, the Wall Street Journal printed an
article that said that 18 families--listen closely--18 families in the
United States of America have spent $200 million lobbying to pass this
change in the estate tax--18 families.
Ask yourself why. Why would they spend $200 million? Because they
will earn a lot more if this estate tax is repealed. But the cost of
the estate tax is dramatic in terms of America's debts. If we repeal
the estate tax, we will have $776 billion as the cost of the estate tax
repeal in the first 10-year period fully in effect from 2012 to 2021.
The cost of the estate tax repeal explodes under the proposal that is
before us, meaning, of course, this red ink is more debt for America.
Already we are facing a dramatically deteriorating budget picture in
America. Go back to the close of the previous administration, which
shows a $128-billion surplus under President Clinton as he left office,
and then look at the debt that has been built up under the years of the
Bush administration, a debt that will explode even higher with the
repeal of the estate tax on the wealthiest people in America, a debt
which, unfortunately, we will have to pass on to our children.
Look at the wall of debt. When President Bush took office, the gross
national debt of America--this is our mortgage I am talking about--was
$5.8 trillion. Now, by 2006, it is up to $8.6 trillion. How did he
manage that, almost a 50-percent increase in the debt of America in a
matter of 5 years? And now look where it is headed. By the year 2011,
because of the Bush-Cheney tax policies, this national debt will be up
to $11.8 trillion--$11.8 trillion for our national mortgage. This
President has virtually doubled the debt of America with his policies
in a matter of 8 years. How can he accomplish this? He can do it with
terrible policies, and this is one of them.
President George W. Bush is the first President in the history of the
United States of America to cut taxes in the midst of a war--the first.
Why? It defies common sense. We have a war that costs us between $2
billion and $3 billion a week. It is an expense for our Nation over and
above all the other expenses we commonly face.
Every previous President, when faced with that challenge, has called
on Americans to sacrifice, save, and pay more in taxes to pay for the
war, but not President Bush. The Bush-Cheney
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policy is, in the midst of a war with skyrocketing costs, cut taxes--
meaning, of course, driving us deeper and deeper into debt, pushing
more of that debt burden on our children.
This is not a tax cut which the Republicans are proposing, it is a
tax deferral. They want to cut the taxes on the wealthiest estates in
America and put a greater tax burden on our children and grandchildren.
That is the legacy of the Bush-Cheney tax policy.
But how does this President take care of the debt? First consider
this: As Senator Conrad has brought this chart to the floor before,
President Bush has decided that the way to deal with our debt is to
borrow from others. President Bush has more than doubled foreign-held
debt in 5 years. It took 42 Presidents, including his father, 224 years
to build up the same level of foreign-held debt as President George W.
Bush has done in 5 years. For 224 years, we had about $1 trillion in
debt held by foreign governments. Under President George W. Bush, that
figure has virtually doubled in just 5 years.
The obvious question is, Who are these mortgage holders? Which
foreign governments are financing America's debt? The top 10 foreign
holders of our national debt are Japan, $640 billion, China--no
surprise--$321 billion, United Kingdom, oil exporters, South Korea,
Taiwan, Caribbean banking centers, Hong Kong, Germany, Mexico, and the
list goes on and on.
It is no surprise that the same countries, which are our mortgagers,
which are holding the debt of America, are the same countries which are
eating our lunch when it comes to sucking jobs out of the United States
and pushing imports into the United States. They are the same
countries. That is what we are dealing with. And the Republican recipe
for this imbalance in this debt is to make it worse: Cut the estate tax
in the midst of a war. It is not only unseemly, going back to Senator
Grassley's quote, it is unthinkable that at a time when we are asking
for so much sacrifice from our soldiers--130,000 of them today risking
their lives in Iraq, another 20,000 or 30,000 in Afghanistan, all their
families at home praying for their safe return, the anxiety of their
friends and relatives as they worry over them each day--at a time when
so many in America are giving so much and sacrificing so much, comes
the Republican majority and says: Let us give the most comfortable, the
most well-off people with the cushiest lives in America a tax break--a
tax break.
What are we thinking? Why would we be cutting taxes in the midst of a
war? Why would we be heaping debt on our children? Why? So that 2 or 3
people out of every 1,000 who have huge estates worth millions of
dollars can escape paying their Federal taxes. It is incredible to me,
but true, that when you look at this chart, the number of taxable
estates in the year 2000 was 50,000 nationwide. Under this bill, the
number of taxable estates has gone down to 13,000 and will be reduced
to 7,000. So this tax responsibility that once applied to 50,000
taxable estates annually in the United States will be a tiny fraction
of that when it is over.
We also have to reflect on another reality as to why this issue is
before us. I mentioned this to my Democratic colleagues, and I say this
with some understanding that it is an indictment on our political
system, of which I am a part. Why is it that we are so focused on
helping the wealthiest people in America instead of focused on helping
the hardest working, the working families, the middle-income families?
The explanation is sad but true. We spend a lot of our time as Members
of the Senate and House of Representatives in the company of very
wealthy people. We run across them in the ordinary course of Senate
business, but there is another part of our lives as well. We are out
raising money for political campaigns that cost millions of dollars.
People who can afford to help us are often very wealthy themselves.
Some are very wonderful folks, very generous, very helpful to each one
of us. But we spend a lot of time in their lifestyle seeing where they
live, how they spend their time, understanding their hobbies and their
lifestyles and naturally developing a friendship and empathy with the
wealthiest people in America.
Our campaign financing system draws us into these situations. It is
understandable that with this empathy comes an understanding that some
of them are going to face taxes when they die for all the money and the
wealth they have accumulated. Their pleas have not fallen on deaf ears
in the Senate. Their pleas to repeal the estate tax have resulted in
this bill before us now.
I think it really is a testament to campaign financing in America
that instead of spending time with average people, working people
struggling to get by, dealing with their issues and their concerns, we
would instead draw the attention of the Senate to the most well-off
people in this country and how we can reduce their tax burden and their
responsibility to this Nation.
There are a few wealthy people who stand out in this debate. One of
them is a gentleman by the name of Warren Buffett who is with Berkshire
Hathaway, a company out of Omaha, NE, one of my favorite wealthy
people, the second wealthiest person in America. He is the first to say
our tax system in this debate is an outrage and disgraceful. He said at
a luncheon he attended not long ago that it is true that America is
engaged in class warfare, and as the second wealthiest person in
America, his class was winning. It is pretty clear he is doing pretty
well.
But Warren Buffett understands something which many of the families
that are pushing for this estate tax repeal don't understand. He
understands he is the luckiest person alive because he was born in
America. He was given an opportunity people around this world people
would die for. He was given the opportunity to prove himself and
succeed, and he has done it. He was given a chance to accumulate his
wealth and use it wisely, and he is now given a chance to pay back to
this country, which has given him such a great opportunity, something
for all he has benefited. And Warren Buffett considers that a pretty
fair trade. I think it is, too.
To hear the Republicans on the other side of the aisle say the
wealthiest people in America who live the most comfortable lives should
be asked to not pay taxes back to support schools, to support health
care, to support the defense of our country, to say that somehow they
need more disposable income--$14 million for Paris Hilton, I can
understand that--from the Republican point of view, that is really
helping the truly needy. But from the point of view of most Americans,
it is ridiculous that we would consider this kind of a tax cut at a
time when this country is facing mounting deficits, at a time when we
are at war, at a time when we are asking so much sacrifice from so many
wonderful American families.
So, Mr. President, I am opposed to this resolution. I hope we come to
our senses. I hope we understand that we were elected to this body to
do more than just provide for those with great lobbyists and those with
big bankrolls and those who come here in the corridors of power and
catch our attention. We were elected to represent the people who are
not here--the voiceless, the powerless, the disenfranchised, the
homeless. The people expect us to step up on behalf of the entire
American family, not just those who are well off but the entire
American family, and do our best to help.
I hope we defeat this effort. I hope we stop it in its tracks. I hope
we put an end to this tax policy of the Bush-Cheney administration
which has driven America to depths of indebtedness that one could never
have imagined. I hope we will put an end to this accumulation of
national debt which we are passing along to our children with abandon.
I hope we will put an end to this foreign borrowing with which this
administration has become so enamored which has made us servile to some
of the other nations around the world that would readily exploit our
economy, our businesses, and our workers.
If we are going to do that, we have to make a stand--a stand for
sensible tax policy, a stand for prudence, a stand for something which
was once known as fiscal conservatism--fiscal conservatism. It is a
great concept. It used to be the concept of the Republican Party, but
that was before they discovered supply-side economics and this whole
concept of the Bush-Cheney tax policy.
I urge my colleagues, when this comes up for a vote tomorrow, to vote
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against cloture, vote against this giveaway to a handful of families
that are already doing quite well, thank you.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama.
____________________