[Congressional Record (Bound Edition), Volume 152 (2006), Part 8]
[Senate]
[Pages 10302-10340]
[From the U.S. 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

[[Page 10303]]

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.''
  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

[[Page 10304]]

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 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

[[Page 10305]]

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 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.

[[Page 10306]]

  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 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.

[[Page 10307]]

  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 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 Liliuokalani. 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

[[Page 10308]]

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.
  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

[[Page 10309]]

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.
  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.

[[Page 10310]]

  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.
  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

[[Page 10311]]

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 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

[[Page 10312]]

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 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

[[Page 10313]]

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 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.

[[Page 10314]]

  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 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

[[Page 10315]]

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 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

[[Page 10316]]

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 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.

[[Page 10317]]

  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 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

[[Page 10318]]

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 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

[[Page 10319]]

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 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.

[[Page 10320]]

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 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.

[[Page 10321]]

  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 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.

[[Page 10322]]

  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 10323]]

 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.

[[Page 10324]]

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.''
  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

[[Page 10325]]

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 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.

[[Page 10326]]

  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 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,

[[Page 10327]]

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.
  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.

[[Page 10328]]

  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 
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

[[Page 10329]]

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, 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

[[Page 10330]]

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 
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

[[Page 10331]]

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 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

[[Page 10332]]

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 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

[[Page 10333]]

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. 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

[[Page 10334]]

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 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

[[Page 10335]]

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 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.

[[Page 10336]]

  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 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

[[Page 10337]]

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 
multi-
generational 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 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.

[[Page 10338]]

  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- 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

[[Page 10339]]

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 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

[[Page 10340]]

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 
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.

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