[Congressional Record Volume 152, Number 72 (Thursday, June 8, 2006)]
[Senate]
[Pages S5631-S5640]
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 (Mr. Alexander). Under the previous order, the 
Senate will resume consideration of the motion to proceed to S. 147, 
which the clerk will report.
  The bill 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 until 12:45 
p.m. will be equally divided between the two leaders or their 
designees.
  The Republican whip.
  Mr. McCONNELL. Mr. President, the history of America has been one of 
racial inequity, followed by a long but sure path to reconciliation. At 
the time of this country's founding, a person's race could determine 
whether he lived in freedom or in slavery.
  Fifty years ago, race could still determine where a person could 
live, what water fountain he could drink from, or what kind of life he 
could lead.
  Today, thankfully, that is no longer true. We have recognized that 
nearly every time our Government has taken race into account when 
dealing with its citizens, the effects have been detrimental, if not 
devastating; and for that reason, as President Kennedy once said, 
``Race has no place in American life or law.''
  Unfortunately, today, the Senate is considering a bill that would 
wreck the progress we have made toward a color-blind society.
  S. 147, the Native Hawaiian Government Reorganization Act, would not 
only direct the Government to establish a government based solely on 
race, it would also seek to confer preferences based on race. It 
violates the letter and the spirit of the U.S. Constitution, and it 
must be opposed.
  When I say the bill violates the U.S. Constitution, I am referring 
specifically to the 14th amendment, which was ratified in 1868, after 
the Civil War, to address unequal treatment based on race.
  The 14th amendment reads:

       All persons born or naturalized in the United States and 
     subject to the jurisdiction thereof, are citizens of the 
     United States and of the State wherein they reside.
       No State shall make or enforce any law which shall abridge 
     the privileges or immunities of citizens of the United States 
     . . . nor deny to any person within its jurisdiction the 
     equal protection of the laws.

  The 14th amendment was quite clear. The way this bill tries to 
maneuver around its unconstitutionality is by classifying Native 
Hawaiians via the Federal Indian law system, and creating a new 
``tribe'' of Native Hawaiians.
  But this new ``tribe'' is a shell game. Native Hawaiians have never 
been viewed as an Indian tribe, including when Hawaiians overwhelmingly 
voted for statehood in 1959.
  As recently as 1998, the State of Hawaii itself acknowledged that the 
tribal concept has no historical basis in Hawaii. Specifically, in Rice 
v. Cayetano, the State of Hawaii wrote the following in a brief to the 
U.S. Supreme Court. This is what the State of Hawaii had to say at that 
time:

       For 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.

  That was in the brief of the State of Hawaii itself in a case in 
1998.
  Mr. President, the Senate should be an institution that brings 
America together. Let's not tear apart our common identity as 
Americans. We should not use this fiction of Indian tribe status for 
Native Hawaiians to divide our country.
  By the way, have I mentioned that not even the people of Hawaii 
support this bill? According to a poll conducted by the Grassroot 
Institute of Hawaii, 67 percent of Hawaiians oppose it--two-thirds of 
the State. Hawaiians overwhelmingly oppose this bill, based upon those 
survey results.
  The U.S. Commission on Civil Rights conducted public hearings on S. 
147. They oppose it and recommend against its passage. They oppose it 
because they believe it is racially discriminatory and divisive. This 
is what the Commission on Civil Rights had to say about this measure:

       The Commission recommends 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 varying degrees of 
     privilege.

  And it should be pointed out that it seems that private interests who 
commented on the bill opposed it, with only institutional interests 
submitting comments in support of the bill. Only institutional 
interests have advocated for it. But the people, it seems, do not want 
it.
  That includes even some Native Hawaiians. One person who testified 
before the commission was a Hawaiian named Kaleihanamau Johnson. She 
told them:

       I am of Hawaiian, Caucasian and Chinese descent . . . and 
     do not support the Akaka bill.

  Ms. Johnson went on to say that if this bill passes:

       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.

  Let me share some of the testimony of advocates of Hawaiian statehood 
from half a century ago. These comments show that Hawaiians entered the

[[Page S5632]]

Union with the expectation of being equal to any other of our States. 
Overwhelmingly, Hawaiians were eager to be Americans. Senator Wallace 
Bennett of Utah, the father of our good friend, the current Senator 
from Utah, said in 1954:

       Hawaii is literally an American outpost in the Pacific, 
     completely reflecting the American scene, with its religious 
     variations, its cultural, business and agricultural customs, 
     and its politics.

  And former Interior Secretary Fred Seaton wrote to a Senate committee 
in 1959:

       Hawaii is truly American in every aspect of its life.

  I sure hope that is true, in the sense that being American means we 
do not define and divide people by race, but we transcend that. Every 
American, regardless of race, has equal freedom to excel. That is why 
we attract people of all races, from all over the world, who leave 
behind what they have known and start new lives here.
  Because we are a multiracial, multicultural society, and because of 
the misfortunes that have transpired when this country has looked at 
its citizens through the prism of race, we must not turn racial 
preferences into law, as this bill would have us do.
  I believe the way forward for our country is for the Government to 
focus less and less on race, not more and more. To treat people 
differently based on race implies that, on some fundamental level, race 
defines who we are.
  I believe history has shown that idea to be bankrupt. And I believe 
that America has led the way in proving it so.
  Let's do our best to get this country to a point where race truly has 
no place, not when it comes to our Government, or to our promise of 
equal justice under the law.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. CORNYN. Mr. President, how much time remains on our side of the 
aisle?
  The PRESIDING OFFICER. Twenty-one minutes.
  Mr. CORNYN. I ask unanimous consent that I be allotted 10 minutes out 
of that time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. Mr. President, yesterday, when I came to the floor and 
spoke on this legislation--the so-called Native Hawaiian legislation--I 
indicated that I had profound concerns about the constitutionality of 
the bill. I might add that it is not sufficient for Members of Congress 
to say that the courts will clean up the mess after we pass the bill. 
Indeed, it is our responsibility to uphold and defend the Constitution 
as Members of the Senate.
  Yesterday, we heard a few hours of discussion from both those who 
support and those who oppose the bill. I have made no secret of my 
opposition. Simply put, I cannot and I will not support a bill the 
purpose of which is to divide America and is based upon race, and which 
is clearly contrary to our fundamental American principle of equal 
justice under the law.
  The bill would create a separate race-based government for Native 
Hawaiians to the exclusion of all other Americans. And because of its 
very focus on race, the legislation creates particularly troublesome 
constitutional problems. In fact, it appears to be designed to be an 
end-run around the U.S. Supreme Court decision in the year 2000, in 
Rice v. Cayetano, a Ninth Circuit Court of Appeals decision which has 
struck down the practice of segmenting Hawaiians based upon race. I 
mentioned the 2000 decision in Rice v. Cayetano. That was a 7-to-2 
decision which struck down the ancestry requirements for voting for the 
Office of Native Hawaiian Affairs trustee elections. The Court found 
that because ancestry was a proxy for race and the election was an 
affair of the State, it was in violation of the Constitution, and 
particularly the 15th amendment to the Constitution.
  Justice Kennedy, writing for the majority, makes clear why the very 
purpose of S. 147 creates broad constitutional concerns:

       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.

  Some say this bill simply equates Native Hawaiians to Indian tribes. 
But Congress cannot simply and arbitrarily create Indian tribes where 
they don't exist. The Constitution does not authorize Congress to make 
Indian tribes out of subsets of Americans who have no relationship 
whatsoever to an Indian tribe. The Supreme Court has been clear that 
Congress may not insulate a program from the Constitution's strict 
scrutiny for legal distinctions based upon race by ``bring[ing] a 
community or body of people within the range of this [congressional] 
power by arbitrarily calling them an Indian tribe.''
  In addition, the 14th amendment precludes the use of race in making 
appointments--something clearly contemplated by this bill. This bill 
perhaps most clearly raises constitutional concerns in its direct 
contravention of the Supreme Court ruling in Rice. The legislation 
would require that the Department of the Interior manage a special 
election in which eligibility depends entirely on race. As I have 
pointed out before, the Court made clear that racial restrictions 
relating to Native Hawaiians is prohibited by the 15th amendment.
  In summary, in its attempt to pigeonhole Native Hawaiians as 
equivalent to an Indian tribe and to create a governmental entity based 
entirely on race, S. 147 runs counter to the express letter and 
certainly the spirit of the Constitution.
  Unfortunately, despite these clear constitutional problems, it seems 
that some in the Senate are content to acquiesce--to accept passing an 
unconstitutional bill, while passing the buck to the courts to bail us 
out. Yet just 2 days ago, my colleagues on the other side of the aisle 
were talking about what they thought was ``wasting time'' on defending 
marriage, a basic institution--perhaps the most basic institution--in 
our society.
  And yet they are willing to spend a week debating a measure that has 
little chance of passing and that flies squarely in the face of the 
Constitution. I find these inconsistencies difficult to reconcile.
  The sponsors of this legislation last year wrote a Dear Colleague 
letter that suggests that any constitutional inquiries should be left 
to the courts, the implication of which is Congress should not concern 
itself with the bill's constitutionality. I could not disagree more.
  When I came to Washington, I, like the rest of my colleagues, swore 
an oath to defend and uphold the Constitution of the United States. 
That pledge is non-negotiable and does not allow, much less require, me 
or any Member of the Senate to defer our obligations to pass 
legislation that reasonably appears to be within the four corners of 
the United States Constitution.
  Congress is required to uphold the Constitution, as are judges. More 
importantly, it is imperative that we pass legislation that furthers 
the principles of the Constitution rather than dissolve them. A 
constitutional commitment to equal justice for all would be undermined 
should we choose today to endorse the creation of a race-based 
government. This is not a question that should be passed off to the 
courts. We should decide right here and right now.
  I urge my colleagues to vote against cloture on the motion to 
proceed. If they are serious about working on issues that really 
matter, I urge them to allow the Senate to move on to consider other 
pressing business.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Martinez). Who yields time?
  The Senator from Hawaii.
  Mr. AKAKA. Mr. President, I encourage my colleagues to vote with me 
to invoke cloture on the motion to proceed to S. 147, the Native 
Hawaiian Government Reorganization Act of 2005.
  I begin by expressing my deep appreciation to the cosponsors of this 
legislation and to the Senators who spoke in support of bringing this 
bill forward for debate. I especially thank the Senator from Illinois, 
Mr. Obama, and the ranking member of the Indian Affairs Committee, 
Senator Dorgan, for their support.
  I also thank the Senators from Alaska who shared their experiences 
encountered 35 years ago when Alaska

[[Page S5633]]

Natives sought to address similar issues when Congress enacted the 
Alaska Natives Claims Settlement Act.
  It is ironic that the same arguments used against that bill, which 
has been incredibly successful and has served to unite rather than 
divide the people of Alaska, are being used against our efforts today 
to bring parity in Federal policies to Hawaii's indigenous peoples.
  Beginning with the debates of the Continental Congress and continuing 
in the records of discussion and correspondence amongst the Framers of 
the Constitution, it was recognized that the aboriginal indigenous 
people who occupied the lands now comprising the United States had a 
status as sovereigns that existed prior to the formation of the United 
States.
  Based upon the recognition of that preexisting sovereignty, the U.S. 
Constitution, article I, section 8, clause 3, vests the Congress with 
authority to regulate commerce just as with foreign nations in numerous 
rulings of the last 215 years. The U.S. Supreme Court has repeatedly 
held that legislation enacted to address the special concerns and 
conditions of the native people of the United States is constitutional 
and does not constitute discrimination on the basis of race or 
ethnicity because the sovereign status of the Indian tribes is a basis 
for the government-to-government relationship that tribes have with the 
United States.
  The court has consistently drawn a distinction between legislation 
that addresses the conditions of native people of the United States and 
legislation that addresses conditions of specific groups whose members 
are defined only by reference to their race or ethnicity.
  According to the court decisions, the United States has a political 
and legal relationship with Indian tribes that is not predicated on 
race or ethnicity but, rather, on sovereignty.
  The status that the Constitution recognizes in Indian tribes was 
later extended to Alaska Natives in their capacity as aboriginal 
indigenous people of the United States, and it is on that same basis 
that the Congress has enacted legislation for aboriginal indigenous 
people of Hawaii.
  I know the senior Senator from Hawaii, Mr. Inouye, is going to 
address this more when he speaks, but I want to comment on a disturbing 
conclusion that was made by some of my colleagues yesterday.
  Somehow efforts to recognize Native Hawaiians are perceived as un-
American. Native Hawaiians are proud--proud--to be Americans. A number 
of Native Hawaiians in the Hawaiian National Guard returned from 
Operation Iraqi Freedom this spring, after having spent 18 months away 
from their families. Some of our most celebrated heroes who have died 
in the war have been Native Hawaiians. It is offensive to me as a 
veteran and as a Native Hawaiian that my efforts to ensure justice and 
parity for Hawaii's indigenous peoples are being characterized as un-
American. I beg to differ.
  A federally recognized native government does not cause an indigenous 
person to lose his or her status as an American citizen. The concepts 
are not mutually exclusive. I remind my colleagues of the 556 native 
governments that have federally recognized government-to-government 
relationships with the United States. I don't see anyone characterizing 
our Native American brethren as being un-American. To do so in this 
case is another injustice to indigenous peoples, not only from Hawaii 
but from our great Nation.
  The Senator from Tennessee, a good friend whom I admire, argued 
yesterday that this bill is about sovereignty. I agree, it is about 
sovereignty within the bounds of existing Federal law. The political 
and legal relationships between Native Hawaiians and the United States 
already exist, as evidenced by the 160 Federal statutes that have been 
enacted to address conditions of Native Hawaiians.
  The Federal policy of self-governance and self-determination allows 
for a government-to-government relationship between indigenous peoples. 
This is not new. It exists right now between the United States and 556 
native governments. The continued representation of this bill as 
unprecedented new action is just plain wrong.
  Native Hawaiians are the indigenous aboriginal people of the lands 
which now comprise the State of Hawaii. Prior to their overthrow, the 
native government, the Kingdom of Hawaii, was recognized by the United 
States. The fact that the kingdom included non-natives within its 
government does not make it a non-native government. It is clear that 
the Kingdom of Hawaii was a preexisting native Government.
  Hawaii is the homeland for Native Hawaiians. That is what makes them 
different from other ethnic groups. That is what makes them like the 
556 native governments that are federally recognized and engaged in a 
government-to-government relationship with the United States.
  This bill embodies the goals of this Nation--fairness, justice, 
liberty for all. A federally recognized government-to-government 
relationship with the United States does not make Native Hawaiians un-
American. Being Native Hawaiian and American are not mutually 
exclusive, no more than being an American Indian or Alaska Native and 
being American.
  Mr. President, 556 native governments enjoy this relationship. The 
question is: Why not Native Hawaiians? The only argument I am hearing 
is that Native Hawaiians are not native enough, and I beg to differ. 
This is why the bill needs to be brought to the floor for debate. This 
is why my colleagues should vote to invoke cloture on the motion to 
proceed. At a minimum, it is what the people of Hawaii deserve.
  My colleagues have said that Hawaii is a melting pot, perhaps the 
greatest melting pot in the United States, and I agree. However, I like 
to think of it not as a melting pot where everyone loses their 
individuality, but I would like to think of it as a rainbow. Each color 
of the rainbow represents a different culture. The more we are in touch 
with our culture and tradition, the brighter and more vivid is the 
color. Taken together, we combine to make something very beautiful.
  My colleagues, however, would rather everyone be melded into one 
color, monotone. I believe we are intelligent, articulate beings who 
are able to celebrate our nationality in addition to preserving, 
understanding, and practicing our culture and traditions.
  One of my colleagues referred to statehood and its supposed agreement 
that Native Hawaiians would not be treated any differently from any 
other citizens. Debate transcripts from the Constitutional Convention 
of 1950, which developed the Constitution that was used in 1959 when 
Hawaii became a State, clearly show an effort to protect Native 
Hawaiians and their culture. The 1950 Constitutional Convention adopted 
as a provision the Hawaiian Homes Commission Act of 1920, passed by the 
Congress in 1921, which established a homesteading program for Native 
Hawaiians in an attempt to offset the tremendous decline in their 
numbers and to ensure continuation of their culture. The Convention 
also adopted a provision accepting a compact with the Federal 
Government to continue the trust obligation associated with the 
Hawaiian Homes Commission Act and providing that congressional consent 
would be required for an amendment to decrease lessee benefits or alter 
lessee qualifications.

  Inclusion in the Constitution as early as 1950 shows recognition of 
Native Hawaiians as Hawaii's indigenous peoples and reflects the 
widespread support for the preservation of Native Hawaiian culture, 
custom, and tradition. Unlike many of the other Western States' 
enabling laws, the Hawaii Admissions Act and the Alaska Statehood Act 
expressly recognized and preserved the rights of the indigenous native 
people in those two States. The Hawaii Admissions Act not only provides 
for the protection of land set aside under Federal law for Native 
Hawaiians but further directs that revenues from lands ceded back to 
the State are to be used for five purposes, one of which is the 
betterment of the conditions of Native Hawaiians.
  I would also like to address the report issued by the U.S. Commission 
on Civil Rights. The U.S. Commission on Civil Rights was established to 
serve as an independent and bipartisan factfinding agency to 
investigate and report on the status of civil rights in our country. 
The GAO just issued a report highlighting the Commission's lack of 
policies to ensure that its national products--its briefings, reports, 
and hearings--are objective and that the Commission is sufficiently 
accountable for decisions made on these projects.
  Take this issue, for example. In January, the Commission determined 
it

[[Page S5634]]

would hold a briefing on this legislation we are considering. The 
Commission failed--the Commission failed--to consult with the Hawaii 
State advisory committee, which is composed of experts on civil rights 
in Hawaii. This is not a new issue. In fact, the Hawaii State advisory 
committee has previously issued three reports addressing the political 
and legal relationship between Native Hawaiians and the United States. 
The Hawaii State advisory committee members tried to participate in the 
process, and their efforts were rebuffed. This was not a case of being 
overlooked; this was a case of being shut out by that Commission.
  The Commission was provided with a substitute amendment that we 
negotiated with the executive branch in January by my staff. In 
addition, provisions of the amendment were discussed during that 
briefing. Yet in May of this year, when the Commission voted to issue 
its report, it based its decision on the bill as reported out of 
committee, not the bill we will actually be debating and voting upon.
  In addition, the Commission's report has no analysis, no findings in 
it. The report is a summary of testimony made by witnesses and a 
conclusion that the legislation is race-based--again, no analysis, no 
findings.
  Further, upon reviewing the transcript, it is clear to me that the 
majority of the Commissioners were not familiar with Hawaii's history, 
with Federal Indian law, or with the legislation itself at the 
briefing. Again, this is where the expertise of the Hawaii State 
advisory committee to the Commission would have been helpful, yet their 
efforts were rebuffed.
  The two Commissioners who dissented read the bill. They read the 
bill. That was obvious in their dissents which actually analyze the 
bill and Hawaii's history.
  I question such actions, as they leave me with little doubt that 
there are those who used this process for political reasons--to the 
detriment of Hawaii's indigenous peoples and the people of Hawaii. My 
conclusion is supported by the recent GAO report criticizing the 
Commission as lacking policies to ensure objectivity in its hearings 
and briefings and accountability in its conclusion. And they have 
issued that report.
  In addition, on June 6, a Resolution of No Confidence was adopted by 
current and former State advisory committee chairpersons regarding the 
Commission's commitment to fulfilling statutory and regulatory 
obligations to the State advisory committees. This saddens me greatly, 
as many of us have tremendous respect for the Commission. And I repeat, 
we have tremendous respect for the Commission, but that respect is 
based on our reliance on the Commission as an independent, bipartisan, 
factfinding agency. There was little independence, bipartisanship, or 
factfinding in the Commission's consideration of this legislation. That 
an agency with such an important mission would succumb to a political 
agenda is disgraceful and offensive.
  Last night, the Department of Justice issued a letter expressing 
opposition to S. 147. This is understandable and, of course, not 
surprising. The administration voiced these concerns last July. That 
prompted 3 months of negotiations with Hawaii's congressional 
delegation and Governor with the Department of Justice, Office of 
Management and Budget, and the White House officials. The result of 
those negotiations is S. 3064, which the majority leader put on the 
calendar this week. If the Senate invokes cloture on S. 147, the 
language of S. 3064 will be offered as a substitute. That language, 
agreed to with the administration, addresses the administration's 
policy concerns with the original bill.
  The administration's letter of last July noted constitutional 
concerns with the legislation. As the floor debate yesterday 
demonstrated, disagreement over those constitutional questions exists 
and, if the legislation is enacted, would rightfully be left to the 
courts to decide. The substitute amendment addresses liability of the 
United States, ensures that military readiness is preserved, prohibits 
gaming, and ensures that civil and criminal jurisdiction remains with 
the State and Federal Governments until negotiated.
  I ask my colleagues who have only had the time to listen to 
characterizations of the bill and sound bites of perceived impacts to 
actually take a look at this bill. It is not often that we can get 
almost every policymaker in Hawaii to agree on an issue. Except for two 
people in the State legislature, every other policymaker in Hawaii 
supports authorizing a process for the reorganization and recognition 
of a Native Hawaiian governing entity for the purposes of a government-
to-government relationship. We are the people who deal with this every 
day. I ask you, at a minimum, to give us an opportunity to share more 
information about this with you. Don't make your decision based on 
someone else's characterization of the bill if you have not taken the 
time to read it and understand it. The people of Hawaii--native and 
nonnative--deserve more than that.
  I stand here and ask my colleagues to vote for cloture so that we can 
further address these matters. I ask all of you to give us the courtesy 
of at least a debate on this bill.
  I have heard the opposition, and again I say that we have had good 
relationships which will continue, and I want to voice the reasons we 
need this bill because as we pledge daily, under God, with liberty and 
justice, we do this.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Tennessee.
  Mr. ALEXANDER. How much time is remaining on our side?
  The PRESIDING OFFICER. There is 12 minutes 50 seconds remaining.
  Mr. ALEXANDER. Mr. President, I ask the Chair to notify me when 10 
minutes has lapsed.
  Mr. President, I wish to begin as I began yesterday, by expressing my 
respect for the Senators from Hawaii, and it is genuine, it is a 
genuine respect. I also wish to begin by making it absolutely clear 
that there is no question about whether Hawaiians, including Native 
Hawaiians, are Americans. Hawaiians, including Native Hawaiians, are 
Americans, as good Americans as any Americans, and that is why this 
bill is a bad bill.
  Hawaiians became U.S. citizens in 1900. They have saluted the 
American flag. They have paid American taxes. They have fought in 
American wars. The distinguished senior Senator from Hawaii has won the 
highest honor our Nation gives to an American warrior. In 1959, 94 
percent of Hawaiians reaffirmed that commitment to become Americans by 
voting to become a State. Like citizens of every other State, Hawaiians 
vote in national elections.
  My argument is that since Hawaiians have chosen to become Americans 
and distinguish themselves as Americans, that is the reason we should 
not move forward to allow a small group of Hawaiians, who live in every 
State in the Nation, to form a new government, a sovereign entity, 
which would be empowered to negotiate, as was said yesterday on this 
floor, the question of secession from the United States, the question 
of transfer of land to this new entity, the question of the transfer of 
money to this new entity, and the question of civil and criminal laws 
to this new entity.
  When we began this discussion, many Senators were saying: Wait a 
minute, you are mischaracterizing this bill; it is not about 
sovereignty, it is not about land and money, it is not about race. But 
I think we have clearly established--and I believe it is a fair 
characterization of what the Senator from Hawaii has just said--that it 
is about sovereignty. It is clearly about race because you can't be a 
member of this new government unless you have Native Hawaiian blood; it 
may be only a drop of blood. So it is based on race. So the only 
possible argument to justify doing what no group of American citizens 
would ever be allowed to do in the United States is that this is just 
another Indian tribe, just another tribe. I want to address that in 
just a moment.

  United States law, of course, does recognize Native American tribes, 
and the contention here today, from the Senators from Hawaii, is that 
this is just another tribe. That is a different contention than the 
State of Hawaii made a few years ago, in 1998. There, in the case of 
Rice v. Cayetano, the brief of the State of Hawaii said, ``the tribal 
concept has simply no place in the context of Hawaiian history.'' This 
is what the State of Hawaii said in 1998 before the Supreme Court.

[[Page S5635]]

  Yesterday the Department of Justice Assistant Attorney General of the 
United States wrote a letter to the majority and minority leaders of 
the U.S. Senate saying that the administration strongly opposes this 
piece of legislation. It first discusses the constitutional objection 
to creating a race-based government, which clearly violates our 
Constitution and turns that original motto of this country, ``from one, 
many,'' upside-down. The letter from the Assistant Attorney General 
goes on to say:

       While this legislation seeks to address this issue by 
     affording federal tribal recognition to native Hawaiians, the 
     Supreme Court [of the United States] has noted that whether 
     native Hawaiians are eligible for tribal status is a ``matter 
     of dispute'' and of considerable moment and difficulty.

  The Assistant Attorney General goes on:

       Given the substantial historical structure 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.

  I ask unanimous consent to have the letter from the Assistant 
Attorney General printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                  Office of the Assistant Attorney


                                                      General,

                                     Washington, DC, June 7, 2006.
     Hon. Bill Frist,
     Majority Leader, U.S. Senate,
     Washington, DC.
       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.

  Mr. ALEXANDER. As to the charge the U.S. Civil Rights Commission 
didn't review this carefully, I will ask unanimous consent to have a 
letter to Senator Cornyn printed in the Record. It is from a member of 
the Commission, Peter N. Kirsanow, writing in his individual capacity, 
who details the careful attention, he says, that the Commission gave to 
the legislation.
  He says, in addition, ``I maintain that it is the worst piece of 
legislation the commission has reviewed during my tenure.''
  I ask unanimous consent to have that letter printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

     Hon. John Cornyn,
     Chairman, U.S. Senate Subcommittee on Immigration, Border 
         Security and Citizenship.
       Dear Senator Cornyn: The U.S. Commission on Civil Rights 
     (``Commission'') found significant problems with the proposed 
     Native Hawaiian Government Reorganization Act (S. 147), also 
     known as the Akaka bill. I maintain that it is the worst 
     piece of legislation the Commission has reviewed during my 
     tenure.
       The Commission went to great lengths to ensure that its 
     report on the Akaka bill (``Report'') was thorough, well-
     reasoned and objective. Much of the Report was based upon 
     testimony from a balanced panel of expert witnesses. Public 
     comment on the Akaka bill also was solicited and a number of 
     responses were received from a variety of perspectives--both 
     pro and con. The ABA, for example, issued a letter supporting 
     the bill. Others opposed it. The Commission considered all of 
     these responses and modified the Report based on valid 
     concerns of those critical of some of the provisions in 
     earlier drafts. The final Report reflects these 
     recommendations, reaffirming its balance.
       The Report was subjected to rigorous controls, several 
     layers of review, checks and balances to insure its accuracy 
     and integrity. Any attempt to discount the Report's findings 
     on the basis of a GAO report that the Commission somehow 
     lacks procedures for insuring objectivity is completely 
     misdirected. The GAO report cited by proponents of the Akaka 
     bill does not relate to the Report. Rather, the GAO's 
     findings relate largely to the lack of internal controls at 
     the Commission during and resulting from the previous 
     management that had failed, among other things, to conduct an 
     audit in 12 years; and was repeatedly excoriated for issuing 
     reports perceived as biased.
       Since assuming a majority on the Commission over a year 
     ago, the Republican commissioners, along with our new 
     Democrat colleagues, have worked vigorously to adopt all 
     previous GAO reform recommendations and to implement a broad 
     series of internal controls and procedures to insure the 
     integrity of Commission reports. These procedures were 
     adopted well before the Commission hearing on the Akaka bill 
     and the issuance of the Report. (For example, the hearing had 
     an equal number of witnesses on each side of the issue, 
     something the Commission was not necessarily known for in 
     prior years).
       The Commission's Report on the Akaka bill represents a 
     fair, rigorous and objective assessment of the bill. Although 
     I am writing in my individual capacity, I am sure that the 
     majority of my colleagues hope that the Senate, in it's 
     deliberations on the Akaka bill, gives the Report serious 
     consideration.
           Sincerely,

                                            Peter N. Kirsanow,

                                                     Commissioner,
                                  U.S. Commission on Civil Rights.

  Mr. ALEXANDER. Mr. President, what do we have here on the issue of 
``just another tribe''? Under the United States law, as we have said 
several times, there are specific requirements for the recognition of 
an Indian tribe. The U.S. Government does recognize those tribes. But 
it has not created any tribe. This would be the creation, the 
establishment of a new sovereign government.
  Here is what the law says:

       The tribe must have operated as a sovereign for the last 
     100 years.

  Native Hawaiians have not. It says:

       Tribes must be a separate and distinct community.

  Native Hawaiians are not. They live in every State of the United 
States of America; 160,000 live outside of Hawaii. Only 20,000 live on 
the Native Hawaiian homelands.
  It further says:

       A tribe must have had a preexisting political organization.

  The Native Hawaiians did not. That is why, I suppose, the brief of 
the State of Hawaii acknowledged in the Supreme Court of the United 
States, in 1998, ``The tribal concept simply has no place in the 
context of Hawaiian history.''
  In the history of our country, as it grew and developed, there have 
been many wrongs. The men who wrote our Constitution, setting our high 
goals, were only men. And women didn't even have the right to vote in 
the United States until 100 years ago. Those who wrote the Constitution 
locked out the press. The press would say today that is a wrong. Those 
who wrote the Constitution, many of them, owned slaves. That was a 
terrible wrong.
  But our history is filled with reaching high goals to address and 
correct those wrongs, and doing it as a Nation, as Americans, all of us 
together. We are proud of our nationalities, of where we come from. But 
when we become Americans, as Hawaiians did when they became a State in 
1959, we pledge allegiance to the United States of America. This bill 
would create a new competing government. That is what is wrong with 
this bill. It is the wrong way to right whatever wrongs may have 
happened in Hawaii.
  The PRESIDING OFFICER. The Senator has consumed 10 minutes.
  Mr. ALEXANDER. It is my hope that my colleagues will vote no on this 
bill. Perhaps there are other ways that the Congress can help the 
distinguished Senators from Hawaii address wrongs which may have 
existed in Hawaii. But if that motto means anything, ``E pluribus 
unum,'' and if the constitutional prohibition against making 
distinctions based on race means anything, then we should not be 
authorizing a new sovereign government capable of negotiating 
secession, land, money, civil and criminal penalties--admission to 
which is only based upon race. The U.S. Department of Justice, the 
Supreme Court, the State of Hawaii itself--all have said this is not a 
tribe. Hawaiians are proud Americans,

[[Page S5636]]

which is why this bill should be rejected.
  Mr. ENZI. Mr. President, I rise in strong opposition to S. 147, the 
Native Hawaiian Government Reorganization Act of 2006. We must 
celebrate racial diversity in our Nation. Racial diversity defines the 
cultural norms and values that make America the ``melting pot'' that is 
so amazing. America's foundation is built upon many diverse races and 
cultures uniting to become one Nation, but while we can celebrate those 
diverse cultures, we must remember that we are all Americans and we 
must work to bridge gaps, not widen them.
  Every day millions of Americans pledge their allegiance to our flag. 
They stand for the freedoms and rights guaranteed by our Constitution. 
One of the essential clauses of this pledge remains, ``one Nation, 
under God, indivisible, with liberty and justice for all.'' A source of 
our strength is our diversity, and still, despite our diversity, we are 
melded as one Nation, under God.
  When I return to Wyoming, I often attend swearing in ceremonies. It 
is an honor to watch people become citizens of this great Nation. 
Swearing in ceremonies are moving experiences that I cherish. At a 
swearing in ceremony, people from every background and every nation 
come together to celebrate America. Every American should take the time 
to watch a swearing in ceremony because when they do, they will realize 
the privilege that comes with being an American citizen. They come in 
as citizens of India, China, Mexico, Germany, and many others, but they 
leave as Americans.
  Although many citizens of this country practice and honor diverse 
traditions that are unique to their culture, one core similarity 
exists: we are all Americans. Racial diversity is important, but it 
should not be the rationale for the establishment of a separate 
sovereign government.
  Wyoming is the home to the Eastern Shoshone and Northern Arapahoe 
Tribes on the Wind River Indian Reservation. As part of the United 
States, these tribes have been recognized for nearly 150 years as 
sovereign nations. The Eastern Shoshone community was granted 
sovereignty during the Treaty of Fort Laramie in 1863 before Wyoming 
became a State. Over the years, other Native American and Alaskan 
tribes gained sovereignty by meeting the criteria laid out in our laws. 
Native Hawaiians now seek sovereignty similar to that of Native 
Americans and Alaskan Natives through this legislation.
  While I understand their desire to be granted sovereign immunity, the 
facts and circumstances surrounding Native Hawaiians are different. It 
does not make sense to waive or change the requirements that others had 
to meet.
  Our Government has never created an Indian tribe. Sovereignty has 
only been granted to preexisting tribes and only in special, rare 
circumstances after statehood.
  In order to be federally recognized, a tribe must meet several 
criteria. A tribe must prove it existed and operated as a tribe for the 
past century. Additionally, the tribe must distinguish itself as a 
separate and distinct community both geographically and culturally. 
Finally, the tribe must have a preexisting political structure that is 
clear. Native Hawaiians do not meet these criteria.
  A distinct community does not exist according to the standards 
outlined in the proposed legislation. Within the United States and the 
State of Hawaii, Native Hawaiians live integrated among all races.
  During the ``fall'' of Queen Liliuokalani, a ``Native Hawaiian'' 
government was not present. All races coexisted under the reign of the 
monarchy. Non-natives even held high positions within the government.
  In 1898, at the time of annexation, there was no political effort to 
treat Native Hawaiians similar to Alaska Natives or Native American 
tribes. The same held true when 94 percent of Hawaiians voted to become 
a State in 1959. Ninety-four percent of Hawaiians voted to become 
Americans. In fact, at that time, advocates of Hawaiian statehood 
emphasized the cohesive diversity, the ``melting pot'' nature of 
Hawaii.
  In addition, in 1998, the State of Hawaii's Supreme Court brief from 
the case of Rice v. Cayetano expressed the government's belief that, 
``The Tribal concept simply has no place in the context of Hawaiian 
history.''
  If the proposed legislation passes, the progress we have made over 
the past century to improve racial equality regresses. Instead of 
uniting the country, we divide it, and some of the darkest hours of 
this Nation occurred when people were separated because of race. This 
legislation is based solely on the ideology of race.
  We are all Americans, and as such, we need to be united. Although I 
respect the desire of Native Hawaiians to be a federally recognized 
sovereign nation, I strongly urge my colleagues to oppose S. 147.
  Mr. McCAIN. Mr. President, today we will vote on the motion to 
proceed to S. 147, the Native Hawaiian Government Reorganization Act of 
2005. This legislation was passed by the Indian Affairs Committee on 
March 9, 2005. The bill is similar to a bill reported by the Committee 
during the 108th Congress that was not brought before the full Senate.
  S. 147 was developed to provide Native Hawaiians with a mechanism for 
self-governance and self-determination, which the bill's sponsors 
believe would protect from legal challenges a variety of programs and 
services currently in place for the benefit of Native Hawaiians. To 
achieve this goal, the bill would establish a process that would permit 
Native Hawaiians to organize a sovereign entity that would have a legal 
relationship with the United States similar to that which exists today 
between the United States and federally recognized Indian tribes.
  I recognize that this legislation has been offered in response to 
many legitimate concerns expressed by the members of the Hawaii 
delegation and the State's Governor. The leaders of the State of Hawaii 
are attempting to ensure that a longstanding agreement between the 
Federal Government and Hawaii will not be jeopardized by litigants 
determined to undermine certain aspects of that agreement relating to 
Native Hawaiians. That does not change the fact that I have serious 
doubts about the wisdom of this legislation.
  The sponsors reached an agreement in the 108th Congress that they 
would be afforded an opportunity to bring the bill to the Senate floor 
during this Congress. To fulfill that agreement, in my capacity as the 
chairman of the Indian Affairs Committee, I have worked to ensure that 
the legislation would be reported by the committee. I will also support 
the motion to proceed to the bill's consideration because of the 
agreement that was reached in the last Congress. I would like the 
record to reflect clearly, though, that I am unequivocally opposed to 
this bill and that I will not support its passage should cloture be 
invoked.
  Again, I do know how important this legislation is to the Senators 
from Hawaii and certainly to the very capable Governor of the 50th 
State. I am very much aware that one of the purposes of this 
legislation is to insulate current Native Hawaiian programs from 
constitutional attack in the courts, and I am sympathetic to that 
purpose. I commit to the Senators and the Governor that I remain 
willing to work with them to address the fundamental legal concerns 
facing their State. I also recognize the efforts made by Senator Akaka 
to address some of the criticisms that have been leveled at this 
legislation. However, I still have a number of significant concerns 
with this measure.
  Foremost among these concerns is that, if enacted, S. 147 would 
result in the formation of a sovereign government for Native Hawaiian 
people. I am sure that the sponsors have good intentions, but I cannot 
turn away from the fact that this bill would lead to the creation of a 
new nation based exclusively--not primarily, not in part, but 
exclusively--on race. In fact, any person with even a drop of Hawaiian 
blood would qualify to vote on the establishment of this new, 
legislatively created entity that would then negotiate with the Federal 
Government of the United States and the State of Hawaii on potentially 
unlimited topics.
  As the U.S. Commission on Civil Rights stated in its recent report 
recommending against passage of S. 147, this bill would ``discriminate 
on the basis of race'' and ``further subdivide

[[Page S5637]]

the American people into discrete subgroups accorded varying degrees of 
privilege.'' This is unacceptable to me, and it is unacceptable, I am 
sure, to most other citizens of this Nation who agree that we must 
continue our struggle to become and remain one people--all equal, all 
Americans.
  Mr. REID. Mr. President, I will use my leader time now.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. REID. Mr. President, I have had the good fortune to serve here in 
Washington almost a quarter of a century. I have had the good fortune 
of serving with wonderful people, both when I served in the House and 
when I have had the opportunity to serve here in the Senate. As I look 
back over the delegations from the respective States here during my 
service in the Senate, there are no two finer men, no two finer persons 
who have ever served in our Senate than the two Senators who now 
represent the State of Hawaii. Senator Akaka and Senator Inouye are two 
of the best.
  Everyone knows, because I have stated here on the floor, how I feel 
about Dan Inouye. I have never, ever known a person for whom I have 
more respect and admiration than I do Dan Inouye. Think about that: A 
man who has earned the highest award this country can give for heroism, 
the Medal of Honor; Dan Akaka, who served in the military.
  We live in a country that is a Federal Government. What does that 
mean? It means, as I learned in college, that you have a central whole 
divided among self-governing parts. What are those self-governing 
parts? It is the State of Nevada, it is the State of Florida, it is the 
State of Tennessee, and it is the State of Hawaii--plus 46 others; none 
better than the other. Hawaii is equal to Florida, to Tennessee, to 
Nevada.
  Let's talk about Nevada. Nevada has been a State for a long time, 
since 1864. Hawaii is one of the two new kids on the block, along with 
Alaska. But take Nevada as an example. The State of Nevada has 22 
different Indian tribes and Indian entities. The State of Nevada knows 
they are there. It works just fine. It doesn't take away our sense that 
we are part of the Federal Government. We need to treat Hawaii as we do 
other States.
  Some have said here that it is going to change the State of Hawaii. I 
think we should give the Senators from the State of Hawaii a little bit 
of credit for doing what is right for their State. We are scheduled to 
vote in just a short time on a motion to proceed to S. 147, the Native 
Hawaiian Government Reorganization Act. This vote provides all Senators 
an opportunity to do right by Native Hawaiians, and just as importantly 
by Hawaii's two very distinguished Senators, about whom I have just 
spoken.
  A look at the historical record of Native Hawaiians demonstrates the 
importance of this legislation. That is why the two Senators from 
Hawaii have worked tirelessly on its behalf.
  I can remember when this vote was scheduled previously. It was within 
a day or two of when Katrina hit. In Washington at the time was the 
Governor of the State of Hawaii. She believed just as strongly as these 
two men that it was good for Hawaii. It was bipartisan. She is a 
Republican and these are two Democrats.
  From their very first contacts with the western world more than two 
centuries ago to today, Native Hawaiians have endured a lot--just as 
the Native American Indians in Nevada endured a lot, a whole lot. While 
the Native Hawaiians have done so much, with such quiet dignity and 
courage, it should be clear to all of us that they now require our 
attention.
  This legislation will do several things. First, it establishes a 
process for the reorganization of the Native Hawaiian Government 
Authority. There is nothing wrong with that. There is nothing different 
from the Pyramid Paiute tribe in northern Nevada. Pyramid is named 
after the lake there, Pyramid Lake.
  It is no different from the Owyhee Indians in the northeastern part 
of our State. How would you get a name that sounds like Hawaii? Their 
reservation is Owyhee because well more than 100 years ago some 
Hawaiians came there to trap, and that is the last we heard of them. 
But the name never left. Hawaii, Owyhee. It is a sovereign tribe in 
Nevada. It has Hawaiian roots--at least the name. We are proud of them, 
the Indians. That reservation is made up of Shoshonis and Paiutes.
  Second, this legislation, after the process has run its course and a 
Native Hawaiian governing entity is established, just like the tribal 
government, Walker River, that we have with the Paiute tribe, the bill 
reaffirms the special political/legal relationship between the U.S. 
Government and that entity, just like the Las Vegas Indian colony.
  Third and perhaps more important, in the words of an editorial in 
Wednesday's New York Times, ``this legislation offers a chance for 
justice in Hawaii.''
  Although arguments for why the Senate should address the legislation 
are crystal clear, I think the integrity of the U.S. Senate is on the 
line here. I think the integrity of the Senators who seek this 
opportunity merit attention. I have addressed myself to that.
  The chance for justice in Hawaii--that is what this is all about. 
Hawaii is no different than Nevada. Native Hawaiians are no different 
than the Indians in Nevada.
  The PRESIDING OFFICER. Who yields time? The Senator from Hawaii.
  Mr. INOUYE. Mr. President, how much time do I have?
  The PRESIDING OFFICER. The Senator has 6 minutes and 37 seconds.
  Mr. INOUYE. Mr. President, before proceeding I would like to thank my 
leader, the Senator from Nevada, for his very generous remarks. I 
appreciate that very much.
  I rise today in support of S. 147, the Native Hawaiian Government 
Reorganization Act and to address the outrageous mischaracterizations 
that some of my colleagues made yesterday about this measure. The law 
does not support their attempts to discriminate against Native 
Hawaiians so my colleagues had to resort to trying to confuse the 
issue.
  This measure does not result in race discrimination. But 
discrimination will occur if this measure is not passed. It is 
undisputed that Native Hawaiians are the aboriginal, indigenous people 
of Hawaii. Yet some of my colleagues want to discriminate against them 
and treat them differently from other Native Americans--the American 
Indian and the Alaska Native. They seek to impose a new requirement for 
Congressional legislation to authorize the reorganization of a Native 
Hawaiian government even though many of these opponents have been in 
Congress for years and did not impose this requirement on the other 
aboriginal indigenous people recognized by Congress since 1978. Do not 
participate in these discriminatory activities.
  Congress has plenary authority over the aboriginal, indigenous people 
of America. The Supreme Court has repeatedly upheld this. The Supreme 
Court has also acknowledged Congress' authority to recognize as an 
Indian tribe the aboriginal, indigenous people of America regardless of 
whether they are Indians, regardless of whether they are organized as a 
tribe, and regardless of whether they are located in territory of the 
United States. My colleagues who spoke against this measure yesterday 
know this. But none of them attempted to address these issues.
  Rather, they are trying to distract us and the American people by 
claiming that this bill will strip Native Hawaiians of their American 
citizenship. My colleagues know better than this. They know that Indian 
tribes, however they are formed, are recognized as sovereign 
governments in the United States. They know that since the early 1800s 
the Supreme Court has called the Native governments of this land--
domestic, dependent nations. They know that the status and existence of 
Native governments is recognized within our form of government. But 
they are relying on the fact that many of our citizens are not familiar 
with Native American governments so that they incite fear of racial 
preference, denial of rights, and secession.
  Although the United States of America does not recognize dual 
citizenship for those who come from other countries, the United States 
does recognize that Native Americans can be both citizens of the United 
States and members of their Native government. This is true even for 
those Native Americans located in the lower 48, whose

[[Page S5638]]

tribal governments were terminated in the 1950s, or whose tribal 
governments were restored or recognized over the last 30 or so years. 
This bill will lead to a similar situation for the Native Hawaiians. It 
is not inconsistent with what already exists in the United States.
  Native Hawaiians do live as separate and distinct communities. 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. Most of the homestead communities belong to an organization 
called the State Council of Hawaiian Homestead Associations. The 
Council is composed of 24 separate Native Hawaiian Homestead 
Associations. These associations are distinct and separate communities 
of Native Hawaiians.
  Aside from living on Hawaiian homelands, there are communities that 
are distinctly Native Hawaiian. Through Native Hawaiian social and 
political institutions such as the Royal Hawaiian societies which 
existed during the Kingdom of Hawaii as well as the Association of 
Hawaiian Civic Clubs, Kamehameha Schools, and Queen Liliuokalani 
Children's Center, the Native Hawaiian community has maintained its 
distinct character as an aboriginal, native people.

  Native Hawaiian culture, tradition, custom, and language has 
experienced a renaissance in the past 30 years. Many Native Hawaiians 
speak the Hawaiian language and practice the cultural practices of our 
kupuna, our ancestors, in health care and in education.
  In another attempt to incite fear of this bill, some of my colleagues 
stated that this measure would lead to Hawaii seceding from the United 
States. Yes, a small percentage of my constituents advocate for 
Independence from the United States. It is an extreme view that I do 
not share, that the majority of Hawaii's citizens do not share, and 
that will not happen.
  In 1959, Hawaii was admitted to become a part of the United States 
because the voters in the territory of Hawaii overwhelmingly voted to 
do so. This does not, however, erase the wrongs that were committed 
against this unique group of indigenous aboriginal native people. This 
bill does not affect Hawaii's statehood or the rights of it citizens 
under such statehood. This measure does, however, provide an 
opportunity to reorganize a Native Hawaiian government, similar to that 
of Alaska Native and American Indians, who are also American citizens, 
and it provides an opportunity to finally resolve longstanding issues 
that exist in Hawaii as a result of the illegal overthrow.
  The United States, in enacting Public Law 103-150, the Apology 
Resolution, has already recognized the fact that Native Hawaiians have 
never given up their inherent sovereignty. Despite the fact that Hawaii 
was admitted as the 50th State of the Union, Native Hawaiians neither 
by the government or through a plebiscite or referendum gave up their 
rights to inherent sovereignty. The June 27, 1959, statehood plebiscite 
in Hawaii only asked ``Shall Hawaii immediately be admitted to the 
Union as a State?'' Although the statehood plebiscite did not provide 
other options for independence or free association, it did not dissolve 
an inherent right to sovereignty by the indigenous people of Hawaii, 
Native Hawaiians.
  Native Hawaiians are Americans and will continue to be American 
citizens upon enactment of this measure. Like other Native Americans, 
Native Hawaiians have honorably and overwhelmingly served in the United 
States military. Like their Native American brethren, they have served 
in numerous wars, including, World War II, Vietnam, Afghanistan, and 
Iraq and remain truly essential to protecting our country. Native 
Hawaiians will continue to do so after enactment of this measure. 
Native Hawaiians are truly proud to be Americans and should be.
  Yesterday, some implied that this measure would abridge the right to 
vote and there was an attempt to somehow link the Supreme Court's 
decision in Rice v. Cayetano to this matter. This holding of this case 
has no bearing on the measure before us and this bill does not reverse 
the Court's holding. In order to fully understand what this decision 
did and did not say, one needs to know the facts:
  The Office of Hawaiian Affairs is established pursuant to the Hawaii 
State Constitution as a State agency to administer programs for the 
benefit of Native Hawaiians. Prior to the Rice decision, the State 
limited voting for the trustees of the Office of Hawaiian Affairs, to 
Native Hawaiians. Mr. Rice, a non-Native Hawaiian citizen of the State 
of Hawaii, sued the Office of Hawaiian Affairs, a State agency, because 
he was not eligible to vote in the elections for the Board of Trustees 
that administers programs for the benefit of Native Hawaiians. Because 
the Office of Hawaiian Affairs is an arm of the State, the Supreme 
Court held that the State of Hawaii's denial of the right to vote in 
elections for the Board of Trustees of the Office of Hawaiian Affairs 
violated the Fifteenth Amendment guarantee of the right to vote.
  That is what the Rice v. Cayetano decision held. Nothing more, 
nothing less.
  But it appears that many of my colleagues have not read Rice. So I 
will take the liberty to cite from the decision so that my colleagues 
can fully understand that this case has no bearing on the matter before 
us today. Because with respect to whether or not Congress may treat 
Native Hawaiians as it does Indian tribes, the Court left open the 
possibility that Congress could treat Native Hawaiians as such. At 528 
U.S. 518, the Court accurately noted that it had not yet considered 
whether ``Congress . . . has determined that native Hawaiians have a 
status like that of organized Indian tribes. . . .'' but the Court 
continued by specifically stating on page 519, ``We can stay far off 
that difficult terrain.'' The Court found it unnecessary to address 
whether Congress has treated Native Hawaiians as an Indian tribe 
because it found that the Office of Hawaiian Affairs is a State agency.

  Although the holding of Rice is not relevant to the matter before us, 
the author of the State's brief is interesting, for the author is none 
other than recently confirmed Chief Justice John Roberts. Now Chief 
Justice Roberts clearly laid out the arguments as to how and why Native 
Hawaiians are a separate and distinct aboriginal, indigenous people who 
fall within Congress's plenary authority over Indian tribes. For 
instance, Chief Justice Roberts stated:

       Congress's broad authority over Indian affairs reaches the 
     shores of Hawaii, too.
       The Constitution gives Congress--not the courts--authority 
     to acknowledge and extinguish claims based on aboriginal 
     status.
       Congress has established with Hawaiians the same type of 
     `unique legal relationship' that exists with respect to the 
     Indian tribes who enjoy the `same rights and privileges' 
     accorded Hawaiians. . . .

  I urge all of my colleagues to read the excellent brief drafted by 
now Chief Justice Roberts.
  Congress has repeatedly enacted laws that limit the right to vote in 
Native governmental elections to the members of that native government 
and it is consistent with the Constitution. In the 1930's, Congress 
enacted the Indian Reorganization Act and limited voting to tribal 
members. In the 1970's, Congress enacted the Alaska Native Claims 
Settlement Act and limited voting to Native shareholders and their 
descendants. Since 1978, Congress has enacted over 20 laws that 
authorized the reorganization or recognition of Indian tribes and many 
of those laws expressly limit voting to the members of those tribes. To 
listen to the opponents of this measure, the bill will create a racial 
preference for voting in a native government and that this has never 
been done before. But as I just pointed out, this bill is not forging 
new ground. This bill is consistent with Congress's past actions and 
the Supreme Court has never questioned these actions.
  Another matter that my colleagues try to confuse others on is the 
difference between reorganizing or recognizing a native government and 
creating a native government. No one, not even the opponents of the 
measure, dispute that Native Hawaiians exercised sovereignty over the 
lands that now

[[Page S5639]]

comprise Hawaii before European contact. No one disputes that there was 
a Native Hawaiian Kingdom. Consequently, there was a Native Hawaiian 
government that the United States recognized as a sovereign. Indeed, 
the United States even engaged in government-to-government relations 
with the Kingdom of Hawaii. It is this government which will be 
reorganized as a domestic, dependent nation within our constitutional 
framework, in a manner consistent with the status of other Native 
Americans.
  To hear the comments made yesterday, one would think that there was 
never a Native Hawaiian government. One of my colleagues recently 
attended a forum on this measure and mentioned his concern over the 
lack of civic education in America and the corresponding lack of 
knowledge about America's history. I agree with him. I urge all my 
colleagues to learn more about the history of Hawaii, the history of 
Native Hawaiians, the history of the United States, the laws enacted by 
Congress for the benefit of the aboriginal, indigenous people of the 
United States, and the laws handed down by the Supreme Court.
  I am confident that once my colleagues become more informed about 
these matters, all will realize that enacting legislation authorizing 
the reorganization of a native government is within Congress authority. 
The Supreme Court reaffirmed this authority as recently as 2 years ago 
in United States v. Lara. In fact, the Court acknowledged that 
``Congress has restored previously extinguished tribal status--by re-
recognizing a Tribe whose tribal existence it previously had 
terminated.''

  Once everyone obtains more education about the history and laws 
influencing this measure, they will realize that various history 
impacts the history of the United States, you will realize the 
difference between authorizing the reorganization of a native 
government and creating one out of thin air.
  Claims that this bill will establish a precedent for the recognition 
of tribal status for Amish or Hassidic Jews or other groups are 
ridiculous. It is just another attempt to scare the citizens of 
America. Congress has the authority to recognize government-to-
government relations with the aboriginal, indigenous people because of 
their preexisting sovereignty over the lands because of European 
contact. None of these other groups are preexisting sovereigns who 
exercised such authority.
  Nor will this result in a government for the Hispanics who lived in 
Texas before it became a republic in 1836, or for descendants of the 
French citizens before the Louisiana Purchase. Again, these citizens 
are not aboriginal, indigenous people who exercised sovereignty before 
Western contact. While Congress has used its plenary authority to 
recognize the aboriginal, indigenous people who reside in these former 
territories, Congress has never attempted to recognize the non-
aboriginal, non-indigenous people as a government nor will it. We are 
not creating a precedent here.
  Finally, I want to address the letter from the Department of Justice 
that was sent to Majority Leader Frist last night. Last year, the 
Justice Department sent a longer letter outlining substantive policy 
concerns. Senator Akaka and I, along with Governor Lingle, engaged in 
extensive negotiations with administration officials to address these 
substantive policy concerns. The result of these negotiations are 
contained in the substitute amendment that Senator Akaka will he 
offering. There was no attempt to address the ideological concerns laid 
out in that letter. Therefore, Senator Akaka and I have always known 
that all of the Department of Justice's concerns will not be addressed 
in the substitute amendment.
  Before anyone relies too much on the Justice Department's letter, let 
me point out that the letter cites to the United States Commission on 
Civil Rights. I urge everyone to read the Government Accountability 
Office report released last week that noted the Commission's recent 
activities are not objective nor are there procedures in place to 
guarantee that they are.
  While the letter correctly notes that the Supreme Court believes 
there is considerable dispute, it fails to acknowledge that the Supreme 
Court could have addressed the issue in Rice v. Cayetano but instead 
chose to put the issue aside for another day. The letter also does not 
mention the extensive Supreme Court case law that recognizes that it is 
Congress who has the authority to recognize a government-to-government 
relationship with a native government, not the Courts.
  I urge my colleagues to vote ``yes'' on cloture so that this matter 
can be fully debated and everyone can be informed of the law supporting 
this measure. Do not fall victim to attempts to confuse this issue 
before us. Do not let your arm be twisted with threats that you should 
ignore your constituents and vote for the party line that is based on 
misinformation, not the law. All we are asking is that you allow an up 
or down vote on this measure.
  Recently, the President of the United States George W. Bush submitted 
the name of John Roberts to be Chief Justice of the United States. 
Chief Justice Roberts was confirmed by this body because of his 
intellectual background and primarily because of his conservative 
views.
  Recently, Chief Justice Roberts laid out arguments as to how and why 
Native Hawaiians are a separate and distinct aboriginal indigenous 
people who fall within Congress's plenary authority over Indian tribes. 
Among the many things that the Chief Justice said in his brief is the 
following:

       Congress' broad authority over Indian affairs that reaches 
     the shores of Hawaii too.

  He went further to say:

       The Constitution gives Congress--not the courts--authority 
     to acknowledge and extinguish claims based on aboriginal 
     status.

  Chief Justice Roberts further stated:

       Congress has established with Hawaiians the same type of 
     ``unique legal relationships'' that exist with respect to the 
     Indian tribes who enjoy the ``same rights and privileges'' 
     accorded Hawaiians . . .

  I urge all of my colleagues to read this excellent brief by now Chief 
Justice Roberts.
  Mr. President, many things have been said about what this bill will 
do and will not do. Some were rather outrageous, I must say. For 
example, it was argued that this bill will establish a precedent for 
the recognition of tribal status for Amish and Hasidic Jews or other 
groups.
  I think it is just another attempt to scare our fellow Americans.
  Congress has the authority to recognize government-to- government 
relations with aboriginal indigenous people because of their 
preexisting sovereignty over lands before European contact. None of the 
groups that have been named, such as the Amish or the Hasidic Jews, are 
preexisting sovereigns who exercised such authority.
  While Congress has used plenary authority to recognize aboriginal 
indigenous people who reside in these former territories, Congress has 
never attempted to recognize the nonaboriginal nonindigenous people as 
a government, and it will not. We are not creating any precedent here.
  Finally, the letter from the Department of Justice was mentioned. It 
was sent to our majority leader last evening.
  Last year, the Justice Department sent a longer letter outlining 
substantive policy concerns. As a result of that letter, Senator Akaka 
and I, together with Governor Lingle, the Republican Governor of 
Hawaii, engaged in extensive negotiations and discussions for nearly 2 
months with officials of the White House, the Justice Department, and 
OMB to address these policy concerns.
  The result of these negotiations was contained in a substitute 
amendment identified as S. 364, which was introduced by Senator Akaka. 
He made a formal request that this bill be considered original text for 
consideration in this debate. Regretfully, that offer was rejected.
  This letter from the Attorney General does not refer to S. 364, which 
they are well aware of because they helped us draft it. They refer to 
the old bill, S. 147, which we intend to substitute with S. 364.
  Yes, we are aware of the shortcomings of S. 147, and we met for 
nearly 2 months to clarify that.
  I hope my colleagues will vote yes on this cloture motion so this 
matter can be more fully debated and everyone can

[[Page S5640]]

be fully informed of the laws supporting the measure.
  All we are asking for is an up-or-down vote on this measure. We just 
want an opportunity to debate this measure.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee has 2 minutes 
remaining.
  Mr. ALEXANDER. Mr. President, there is a fundamental shortcoming to 
this bill that can't be corrected by small amendments. There is no 
question that this legislation would--and I believe for the first time 
in our history--create a new, separate, independent race-based 
government within the borders of the United States of America. The only 
argument that could possibly justify such an offense to our 
constitutional tradition and our original motto, which says that when 
we became Americans we are proud of where we came from but we are 
prouder of being Americans, is that Native Hawaiians are just another 
Indian tribe. But the government of Hawaii itself, in a brief in the 
Supreme Court in 1998, said: ``The tribal concept simply has no place 
in the context of Hawaiian history.''
  The Department of Justice, in a letter yesterday to the majority 
leader, with a copy to the minority leader, said: ``Tribal recognition 
is inappropriate for native Hawaiians and would still raise difficult 
constitutional issues.''
  I have outlined in my remarks how Native Hawaiians do not constitute 
just another tribe. There may be wrongs to address, but this is the 
wrong way to right a wrong.
  I urge my colleagues to vote no.


                             Cloture Motion

  The PRESIDING OFFICER. All time has expired.
  Under the previous order, the clerk will report the motion to invoke 
cloture on the motion to proceed to Calendar No. 101, S. 147, Native 
Hawaiians Governing Entity.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close the debate on the motion to 
     proceed to Calendar No. 101, S. 147, native Hawaiians 
     Governing entity.
         Daniel K. Akaka, Daniel K. Inouye, Charles Schumer, Jack 
           Reed, Patrick Leahy, Joe Biden, Barbara Mikulski, Evan 
           Bayh, Barbara Boxer, Frank Lautenberg, Harry Reid, Jay 
           Rockefeller, Richard Durbin, Jeff Bingaman, Edward 
           Kennedy, Herb Kohl, James M. Jeffords, Mark Dayton, Jon 
           Kyl, Norm Coleman.

  The PRESIDING OFFICER. By unanimous consent the mandatory quorum call 
has been waived.
  The question is, Is it the sense of the Senate that debate on the 
motion to proceed to Calendar No. 101, S. 147, Native Hawaiians 
Governing Entity bill, be brought to a close? The yeas and nays are 
mandatory under rule XXII. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. The following Senator was necessarily absent: the 
Senator from South Carolina (Mr. Graham).
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Rockefeller) and the Senator from New York (Mr. Schumer) are 
necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--56 yeas, 41 nays, as follows:

                      [Rollcall Vote No. 165 Leg.]

                                YEAS--56

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Byrd
     Cantwell
     Carper
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Dayton
     Dodd
     Domenici
     Dorgan
     Durbin
     Feingold
     Feinstein
     Grassley
     Hagel
     Harkin
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     McCain
     Menendez
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Salazar
     Sarbanes
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Wyden

                                NAYS--41

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Chafee
     Chambliss
     Coburn
     Cornyn
     Craig
     Crapo
     DeMint
     DeWine
     Dole
     Ensign
     Enzi
     Frist
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Lott
     Lugar
     Martinez
     McConnell
     Roberts
     Santorum
     Sessions
     Shelby
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                             NOT VOTING--3

     Graham
     Rockefeller
     Schumer
  Mr. PRESIDING OFFICER (Mr. VITTER). On this vote the yeas are 56, the 
nays are 41. Three-fifths of the Senators duly chosen and sworn not 
having voted in the affirmative, the motion is rejected.
  Mr. McCONNELL. I move to reconsider the vote and to lay that motion 
on the table.
  The motion to lay on the table was agreed to.

                          ____________________