[Senate Report 106-424]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 840
106th Congress                                                   Report
                                 SENATE
 2d Session                                                     106-424

======================================================================



 
TO EXPRESS THE POLICY OF THE UNITED STATES REGARDING THE UNITED STATES' 
       RELATIONSHIP WITH NATIVE HAWAIIANS, AND FOR OTHER PURPOSES

                                _______
                                

  September 27 (legislative day, September 22), 2000.--Ordered to be 
                                printed

                                _______
                                

   Mr. Campbell, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 2899]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 2899) to express the policy of the United States 
regarding the United States' relationship with Native 
Hawaiians, and for other purposes, having considered the same, 
reports favorably thereon with an amendment in the nature of a 
substitute and recommends that the bill as amended do pass.

                         Purpose and Background

    The purpose of S. 2899 is to authorize a process for the 
reorganization of a Native Hawaiian government and to provide 
for the recognition of the Native Hawaiian government by the 
United States for purposes of carrying on a government-to-
government relationship.
    On January 17, 1893, with the assistance of the United 
States Minister and U.S. marines, the government of the Kingdom 
of Hawaii was overthrown. One hundred years later, a resolution 
extending an apology on behalf of the Untied States to Native 
Hawaiians of the illegal overthrow of the Native Hawaiian 
government and calling for a reconciliation of the relationship 
between the United States and Native Hawaiians was enacted into 
law (Public Law 103-150). The Apology Resolution acknowledges 
that the overthrow of the Kingdom of Hawaii occurred with the 
active participation of agents and citizens of the United 
States an further acknowledges that the Native Hawaiian people 
never directly relinquished their claims to their inherent 
sovereignty as a people over their national lands to the United 
States, either through their government or through a plebiscite 
or referendum.
    In December of 1999, the Departments of Interior and 
Justice initiated a process of reconciliation in response to 
the Apology Resolution by conducting meetings in Native 
Hawaiian communities on each of the principal islands in the 
State of Hawaii and culminating in two days of open hearings. 
In each setting, members of the native Hawaiian community 
identified what they believe are the necessary elements of a 
process to provide for the reconciliation of the relationship 
between the United States and the Native Hawaiian people. A 
draft report, entitled ``From Mauka to Makai: The River of 
Justice Must Flow Freely,'' was issued by the two departments 
on August 23, 2000. A 30-day comment period on the report 
expires on September 23, 2000. The principal recommendation 
contained in the draft report is set forth below:

          Recommendation 1. It is evident from the 
        documentation, statements, and views received during 
        the reconciliation process undertaken by Interior and 
        Justice pursuant to Public Law 103-150 (1993), that the 
        Native Hawaiian people continue to maintain a distinct 
        community and certain governmental structures and they 
        desire to increase their control over their own affairs 
        and institutions. As a matter of justice and equity, 
        this report recommends that the Native Hawaiian people 
        should have self-determination over their own affairs 
        within the framework of Federal law, as do Native 
        American tribes. For generations, the United States has 
        recognized the rights and promoted the welfare of 
        Native Hawaiians as an indigenous people within our 
        Nation through legislation, administrative action, and 
        policy statements. To safeguard and enhance Native 
        Hawaiian self-determination over their lands, cultural 
        resources, and internal affairs, the Departments 
        believe Congress should enact further legislation to 
        clarify Native Hawaiians' political status and to 
        create a framework for recognizing a government-to-
        government relationship with a representative Native 
        Hawaiian governing body.

    S. 2899 provides a process for the reorganization of a 
Native Hawaiian government, and upon certification by the 
Secretary of the Interior that the organic governing documents 
of the Native Hawaiian government are consistent with Federal 
law and the trust relationship between the United States an the 
indigenous, native people of the United States, S. 2899 
provides for the recognition of the Native Hawaiian government 
by the United States for purposes of carrying on a government-
to-government relationship with the Native Hawaiian government.

                          Need for Legislation

    With the loss of their government in 1893, Native Hawaiians 
have sought to maintain political authority within their 
community. In 1978, the citizens of the State of Hawaii 
recognized the long-standing efforts of the native people to 
give expression to their rights to self-determination and self-
governance by amending the State constitution to provide for 
the establishment of a quasi-sovereign State agency, the Office 
of Hawaiian Affairs. The State constitution, as amended, 
provides that the Office is to be governed by nine trustees who 
are Native Hawaiian and who are to be elected by native 
Hawaiians. The Office administers programs and services with 
revenues derived from lands which were ceded back to the State 
of Hawaii upon its admission into the Union of States. The 
dedication of these revenues reflects the provisions of the 
1959 Hawaii Admissions Act, which provides that the ceded lands 
and the revenues derived therefrom should be held by the State 
of Hawaii as a public trust for five purposes--one of which is 
the betterment of the conditions of Native Hawaiians. The 
Admissions Act also provides that the new State assumes a trust 
responsibility for approximately 203,500 acres of land that had 
previously been set aside under Federal law in 1921 for Native 
Hawaiians in the Hawaiian Homes Commission Act.
    On February 23, 2000, the United States Supreme Court 
issued a ruling in the case of Rice v. Cayetano, 120 S.Ct. 
1044, 145 L.Ed.2d 1007 (2000). The Supreme Court held that 
because the Office of Hawaiian Affairs is an agency of the 
State of Hawaii that is funded in part by appropriations made 
by the State legislature, the election for the trustees of the 
Office of Hawaiian Affairs must be open to all citizens of the 
State of Hawaii who are otherwise eligible to vote in statewide 
elections.
    The nine Native Hawaiian trustees of the Office of Hawaiian 
Affairs have subsequently resigned their positions, and the 
Governor of the State of Hawaii has appointed interim trustees 
to fill the positions vacated by the Native Hawaiian trustees, 
until new trustees can be elected in elections scheduled to be 
held on November 7, 2000. By order of the U.S. District Court 
for the District of Hawaii, the candidates for the Office of 
Hawaiian Affairs trustees may be either Native Hawaiian or non-
Native Hawaiian, and all citizens of the State of Hawaii may 
vote for the 97 candidates that have registered to run for the 
mine trustee positions.
    The native people of Hawaii have thus been divested of the 
mechanism that was established under the Hawaii State 
Constitution that, since 1978, has enable them to give 
expression to their rights as indigenous, native people of the 
United States to self-determination and self-governance. S. 
2899 is designed to address these developments by providing a 
means under Federal law, consistent with the Federal policy of 
self-determination and self-governance for America's 
indigenous, native people, for Native Hawaiians to have a 
status similar to that of the other indigenous, native people 
of the United States.

         federal delegation of authority to the state of hawaii

    For the past two hundred and ten years, the United States 
Congress, the Executive, and the U.S. Supreme Court have 
recognized certain legal rights and protections for America's 
indigenous peoples. Since the founding of the United States, 
Congress has exercised a constitutional authority over 
indigenous affairs and has undertaken an enhanced duty of care 
for America's indigenous peoples. This has been done in 
recognition of the sovereignty possessed by the native people--
a sovereignty which pre-existed the formation of the United 
States. The Congress' constitutional authority is also premised 
upon the status of the indigenous people as the original 
inhabitants of this nation who occupied and exercised dominion 
and control over the lands to which the United States 
subsequently acquired legal title.
    The United States has recognized a special political 
relationship with the indigenous people of the United States. 
As Native Americans--American Indians, Alaska Natives, and 
Native Hawaiians--the United States has recognized that they 
are entitled to special rights and considerations. The Congress 
has enacted laws to give expression to the respective legal 
rights and responsibilities of the Federal government and the 
native people.
    From time to time, with the consent of the affected States, 
the Congress has sought to more effectively address the 
conditions of the indigenous people by delegating Federal 
responsibilities to various States. In 1959, the State of 
Hawaii assumed the Federally-delegated responsibility of 
administering 203,500 acres of land that had been set aside 
under Federal law for the benefit of the native people of 
Hawaii. [Haw.Const. Art. XVI, Sec. 7.] In addition, the State 
agreed to the imposition of a public trust upon all of the 
lands ceded to the State upon admission. [Hawaii Admission Act, 
Pub. L. No. 8603, Sec. 5(f), 73 Stat. 4, 5 (1959)] One of the 
five purposes for which the public trust is to be carried out 
is for the ``betterment of the conditions of Native 
Hawaiians''. Id. the Federal authorization for this public 
trust clearly anticipated that the State's constitution and 
laws would provide for the manner in which the trust would be 
carried out. Id. Sec. Sec. 4 & 5 (f).
    In 1978, the citizens of the State of Hawaii exercised the 
Federally-delegated authority by amending the State 
constitution in furtherance of the special relationship with 
Native Hawaiians. The delegates to the 1978 constitutional 
convention recognized that Native Hawaiians had no other 
homeland, and thus that the protection of Native Hawaiian 
subsistence rights to harvest the ocean's resources, to fish 
the fresh streams, to hunt and gather, to exercise their rights 
to self-determination and self-governance, and the preservation 
of Native Hawaiian culture and the Native Hawaiian language 
could only be accomplished in the State of Hawaii.
    Hawaii's adoption of amendments to the State constitution 
to fulfill the special relationship with Native Hawaiians is 
consistent with the practice of other States that have 
established special relationships with the native inhabitants 
of their areas. Fourteen States have extended recognition to 
Indian tribes that are not recognized by the Federal 
government, and thirty-two States have established commissions 
and offices to address matters of policy affecting the 
indigenous citizenry.

                                history

    There is a history, a course of dealings and a body of law 
which informs the special status of the indigenous, native 
people of the United States. It is a history that begins well 
before the first European set foot on American shores--it is a 
history of those who occupied and possessed the lands that were 
later to become the United States--the aboriginal, indigenous 
native people of this land who were America's first 
inhabitants.
    The indigenous people did not share similar customs of 
traditions. Their cultures were diverse. Some of them lived 
near the ocean and depended upon its bounty for their 
sustenance. Others made their homes amongst the rocky ledges of 
mountains and canyons. Some native people fished the rivers, 
while others gathered berries and rootsfrom the woodlands, 
harvested rice in the lake areas, and hunted wildlife on the open 
plains. Their subsistence lifestyles caused some to follow nomadic 
ways, while others established communities that are well over a 
thousand years old.
    Those who later came here called them ``aborigines'' or 
``Indians'' or ``natives'' but the terms were synonymous. Over 
time, these terms have been used interchangeably to refer to 
those who occupied and possessed the lands of America prior to 
European contact.
    Although the differences in their languages, their 
cultures, their belief systems, their customs and traditions, 
and their geographical origins may have kept them apart and 
prevented them from developing a shared identity as the native 
people of this land--with the arrival of western 
``discoverers'' in the United States, their histories are sadly 
similar. Over time, they were dispossessed of their homelands, 
removed, relocated, and thousands, if not millions, succumbed 
to diseases for which they had no immunities and fell victim to 
the efforts to exterminate them.
    In the early days of America's history, the native people's 
inherent sovereignty informed the course of the newcomers' 
dealings with them. Spanish law of the 1500's and 1600s 
presaged how the United States would recognize their aboriginal 
title to land, and treaties became the instruments of fostering 
peaceful relations. Felix S. Cohen, The Spanish Origin of 
Indian Rights in the Law of the United States, 31 Geo. L.J. 1 
(1942).
    As America's boundaries expanded, new territories came 
under the protection of the United States. Eventually, as new 
States entered the Union, there were other aboriginal, 
indigenous, native people who became recognized as the 
``aborigines'' or ``Indians'' or ``natives'' of contemporary 
times--these included the Eskimos, and the Aleuts, and the 
other native people of Alaska, and later, the indigenous, 
native people of Hawaii.
    For nearly a century, Federal law has recognized these 
three groups--American Indians, Alaska Natives, and Native 
Hawaiians--as comprising the class of people known as Native 
Americans. Well before there was a history of discrimination in 
this country which the Foutheenth and Fifteenth Amendments were 
designed to address, the Supreme Court had recognized the 
unique status of America's native people under the Constitution 
and laws of the United States.
    Hawaiians are the indigenous or aboriginal people of the 
island group that is today the State of Hawaii. Hawaii was 
originally settled by voyagers from central and eastern 
Polynesia, traveling immense distances in double-hulled 
voyaging canoes and arriving in Hawaii perhaps as early as 300 
A.D. The originally Hawaiians were thus part of the Polynesian 
family of peoples, which includes the Maori, Samoans, Tongans, 
Tahitians, Cook Islanders, Marquesans, and Eastern Islanders. 1 
Ralph S. Kuykendall, ``The Hawaiian Kingdom'' 3 (1938). 
Hundreds of years of Hawaiian isolation followed the end of the 
era of ``long voyages.'' Id. During these centuries, the 
Polynesians living in Hawaii evolved a unique system of self-
governance and a ``highly organized, self-sufficient, 
subsistent social system based on communal land tenure with a 
sophisticated language, culture, and religion.'' Apology 
Resolution at 1510.
    At the pinnacle of the political, economic and social 
structure of each of the major Hawaiian islands was a mo'i, a 
king. Below the king, individuals occupied three major classes. 
The highest class, the ali'i, were important chiefs. Next in 
rank were members of the kahuna class, who advised the ali'i as 
seers, historians, teachers, priests, astronomers, medical 
practitioners, and skilled workers. Third, the maka'ainana were 
the ``people of the land,'' who fished and farmed and made up 
the bulk of the population. Lawrence H. Fuchs, ``Hawaii Pono: 
An Ethnic and Political History'' 5 (1961); ``Native Hawaiian 
Rights Handbook'' 5 (Melody K. MacKenzie ed., 1991).
    The political, economic and social structures were mutually 
supportive. The kings held all land and property which they 
subdivided among the chiefs. Substantial chiefs supervised 
large land areas (ahupua'a), which extended from the sea to the 
mountains so that they could fish, farm, and have access to the 
products of the mountain forest. They in turn, divided the 
ahupua'as into `ilis, run by lesser chiefs whose retainers 
cultivated the land. The commoners worked the land and fished, 
exchanging labor for protection and some produce from their own 
small plots. Agriculture was highly diverse, including taro, 
bananas, yams, sugar cane and breadfruit. The taro plant, whose 
starchy root is pounded into poi, requires substantial moisture 
so Hawaiians developed a superior system of irrigation. See Jon 
J. Dhien, ``The Great Mahele'' 3-4 (1958); Fuchs, supra at 5-7; 
MacKenzie, supra at 3-5.
    The Hawaiian economy was also dependent upon many skilled 
artisans. For example, special skills were necessary for the 
building of outrigger canoes, the making of tapa (a paper-like 
material used for clothing and bedding), the drying of fish, 
the construction of irrigation systems and fishponds, the 
catching of birds (whose feathers were worn in chiefs' cloaks 
and helmets), and the sharpening of stones for building and 
fighting. MacKenzie, supra at 4.
    ``The concept of private ownership of land had no place in 
early Hawaiian thought.'' Id. The mo'i's or king's authority 
was derived from the gods, and he was a trustee of the land and 
other natural resources of the island. Id. Chiefs owned 
militaryservice, taxes, and obedience to the king, but neither 
chiefs, nor skilled laborers, nor commoners were tied to a particular 
piece of land or master. All lands conferred by the king or chief were 
given subject to revocation. In turn, neither commoners nor skilled 
laborers were required to stay with the land; if maltreated or 
dissatisfied, an individual could move to another ahupua`a or `ili. 
Id.; see also Fuchs, supra at 5.
    Hawaiians also had a complex religion, focused on several 
major gods--most notably Kane, god of life and light, Lono, god 
of the harvest and peace, Ku, god of war and government, and 
Pele, goddess of fire. The religion generated a detailed system 
of taboos (kapu), enforced by priests, which supported the 
political, economic and social systems of the islands. See 
Ralph S. Kuykendall & A. Grove Day, ``Hawaii: A History'' 11 
(1964).
    The language and culture of the Hawaiian people were rich 
and complex. Hawaiians possessed an ``extensive literature 
accumulated in memory, added to from generation to generation, 
and handed down by word of mouth. It consisted of meles (songs) 
of various kinds, genealogies and honorific stories * * * [much 
of which] was used as an accompaniment to the hula.'' 1 
Kuykendall, surpra at 10-11. Hawaiians also has a ``rich 
artistic life in which they created colorful feathered capes, 
substantial temples, carved images, formidable voyaging canoes, 
tools for fishing and hunting, surfboards, weapons of war, and 
dramatic and whimsical dances.'' Jon W. Van Dyke, The Political 
Status of the Native Hawaiian People, 17 Yale L. & Pol'y Rev. 
95, 95 (1998) (citing, e.g., Joseph Fehrer, ``Hawaii: A 
Pictorial History'' 36-132 (1969)).
    The communal nature of the economy and the caste structure 
of the society resulted in values striking different from those 
prevalent in more competitive western economies and societies. 
For example, Hawaiian culture stressed cooperation, acceptance, 
and generosity, and focused primarily on day-to-day living. 
See, e.g., Fuchs, supra at 74-75.
    Hawaii was not Utopia. There were wars between the island 
chiefs and among other ali`i. Natural disasters, such as tidal 
waves and volcanic eruptions, often killed or displaced whole 
villages. But Hawaii's social, economic, and political system 
was highly developed and evolving, and its population, 
conservatively estimated to be at least 300,000,\1\ was 
relatively stable before the arrival of the first westerners.
---------------------------------------------------------------------------
    \1\ This estimate is conservative; other sources place the number 
at one million. David E. Stannard, ``Before the Horror; the Population 
of Hawaii on the Eve of Western Contact'' 59 (1989).
---------------------------------------------------------------------------
    Hawaii was ``discovered'' by the west in 1778, when the 
first haole or white foreigner, English sea captain James Cook, 
landed. Because he arrived during a festival associated with 
Lono in a ship whose profile resemble Lono's symbol, he was 
greeted as the long-departed god. Other western ships soon 
followed on journeys of exploration or trade. E.S. & Elizabeth 
G. handy, ``Native Painters in Old Hawaii'' 331 (1972).
    In the years that followed the arrival of Cook and other 
westerners, warring Hawaiian kings, now aided by haole weapons 
and advisers, fought for control of Hawaii. King Kamehameha I 
won control of the Big Island, Hawaii, and then successfully 
invaded Maui, Lana`i, and Molika`i and O`ahu. By 1810, he also 
gained the allegiance of the King of Kaua`i. Despite the 
political unification of the islands, Kamehameha I's era saw 
the first steps toward the devastation of the Hawaiian people.
    The immediate, brutal decimation of the 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 Hawaiian population. By 1866, only 57,000 Hawaiians 
remained from the basically stable pre-1778 population of at 
least 300,000. The impact was greater than the numbers can 
convey; old people were left without the young adults who 
supported them; children were left without parents or 
grandparents. 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 Hawaiians kapus 
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. The kapus were abolished soon 
after Kamehameha I died. See Fuchs, supra at 8-9. Christianity, 
principally in the person of American missionaries, quickly 
flowed into the breach. Christianity condemned not only the 
native religion, but the worldview, language, and culture that 
were intertwined with it. The loss of the old gods, along with 
the law and culture predicated on their existence, resulted in 
substantial social conflict and imbalance. Id. At 9: Kuykendall 
& Day, supra at 40-41.
    Western merchants also forced rapid change in the islands' 
economy. Initially, Hawaiian chiefs sought to trade for western 
goods and weapons, taxing and working commoners nearly to death 
to obtain the supplies and valuable sandalwood needed for such 
trades and nonetheless becoming seriously indebted. As Hawaii's 
stock of sandalwood declined, so too did that trade, but it was 
replaced by whaling and other mercantile activities. See Fuchs, 
supra at 10-11; Kuykendall & Day, supra at 41-43; Mackenzie, 
supra at 5. More than four-fifths of Hawaii's foreign commerce 
was American; the whaling services industry and mercantile 
business in Honolulu were almost entirely in American hands. 
See Fuchs, supra at 18-19, Mackenzie, supra at 6, 9-10.What 
remained to the Hawaiian people was their communal ownership and 
cultivation of land; but, as described infra, that, too was soon 
replaced by a western system of individual property ownership.
    As the middle of the 19th century approached, the islands' 
small haole population wielded an influence far in excess of 
its size. See Felix S. Cohen, ``Handbook of Federal Indian 
Law'' 799 (2d ed. 1982) (``[a] small number of Westerners 
residing in Hawaii, bolstered by Western warships which 
intervened at critical times, exerted enormous political 
influence''). These influential haoles sought to limit the 
absolute power of the Hawaiian king over their legal rights and 
to implement western property law so that they could accumulate 
and control land.
    By dint of foreign pressure, these goals were achieved. 
See, e.g., MacKenzie, supra at 6; 1 Kyukendall, supra at 206-
26. In 1840, Kamehameha III promulgated a new constitution, 
establishing a hereditary House of Nobles and an elected House 
of Commons. And in 1842, the King authorized the Mahele of 
1848; the beginning of the division of Hawaii's communal land 
which led to the transfer of substantial amounts of land to 
western hands.
    In the Mahele, the King conveyed about 1.5 million of the 
approximately 4 million acres in the islands to the main 
chiefs; he reserved about 1 million acres for himself and his 
successors (``Crown Lands''), and allocated about 1.5 million 
acres to the government of Hawaii (``Government Lands''). All 
land remained subject to the rights of native tenants. In 1850, 
after the division was accomplished, an act was passed 
permitting aliens to purchase land in fee simple. The 
expectation was that commoners would receive a substantial 
portion of the distribution to the chiefs because they were 
entitled to file claims to the lands that their ancestors had 
cultivated. In the end, however, only 28,600 acres (less than 
1% of the land) were awarded to about 8,000 individual 
farmers.\2\
---------------------------------------------------------------------------
    \2\ Many maka `ainana did not secure their land because they did 
not know of or understand the law, could not afford the survey costs, 
feared that a claim would be perceived as a betrayal of the chief, were 
unable to farm without the traditional common cultivation and 
irrigation of large areas, were killed in epidemics, or migrated to 
cities. Mackenzie, supra at 8.
---------------------------------------------------------------------------
    Soon after the Mahele, a dramatic concentration of land 
ownership in haole plantations, estates, and ranches occurred. 
Ultimately, the 2,000 westerners who lived on the islands 
obtained much of the profitable acreage from the commoners and 
chiefs.
    These economic changes were devastating for the Hawaiian 
people. The communal land system of subsistence farming and 
fishing was at an end. Large land estates owned by haoles 
controlled virtually all arable land. Hawaiians were not 
considered sufficiently cheap, servile labor for the 
backbreaking plantation work, and, indeed, did not seek it. 
Unable successfully to adjust either to the new economic life 
of the plantation or to the competitive economy of the city, 
many Hawaiians became part of `` `the floating population 
crowding into the congested tenement districts of the larger 
towns and cities of the Territory' under conditions which many 
believed would `inevitably result in the extermination of the 
race.' '' (quoting S. Con. Res. 2, 10th Leg. Of the Territory 
of Hawaii, 1919 Senate Journal 25-26). Hawaiians developed a 
debilitating sense of inferiority, and descended to the bottom 
tier of the economy and the society of Hawaii.
    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. Americans remained concerned, however, about 
the growing influence of the English (who briefly purported to 
annex Hawaii in 1842) and the French (who forced an unfavorable 
treaty on Hawaii in 1839 and landed troops in 1849). American 
advisors urged the King to pursue international recognition of 
Hawaiian independence, backed up by an American guarantee.
    In pronouncements made during the 1840s, the administration 
of President John Tyler announced the Tyler Doctrine, an 
extension of the Monroe Doctrine. It asserted that the United 
States had a paramount interest in Hawaii and would not permit 
any other nation to have undue control or exclusive commercial 
rights there. Secretary of State Daniel Webster explained:

          The United States * * * are more interested in the 
        fate of the islands, and of their government, than any 
        other nation can be; and this consideration induces the 
        President to be quite willing to declare, as the sense 
        of the Government of the United States, that the 
        Government of the * * * Islands ought to be respected; 
        that no power ought either to take possession of the 
        islands as conquest, or for the purpose of 
        colonization, and that no power ought to seek for any 
        undue control over the existing government, or any 
        exclusive privileges or preferences in matters of 
        commerce. [S. Exec. Doc. No. 52-77, 40-41 (1893) 
        (describing 1842 statement).]

    America's already ascendant political influence in Hawaii 
was heightened by the prolonged sugar boom which followed the 
Mahele. Sugar planters were eager to eliminate the United 
States' tariff on their exports to California and Oregon. The 
mainland sugar growers strongly resisted the lifting of the 
tariff, but the United States' fear of ``incipient foreign 
domination of the Islands'' near its coast was stronger than 
the mainland growers' lobby. The 1875 Convention on Commercial 
Reciprocity, Jan. 30, 1875, U.S.-Haw., 19 Stat. 625 (1875) 
(``Reciprocity Treaty''), eliminated the American tariff on 
sugar from Hawaii and virtually all tariffs that Hawaii had 
placed on American products. Critically, it also prohibited 
Hawaii from giving political, economic, or territorial 
preferences to any other foreign power. Finally, when the 
Reciprocity Treaty was extended in 1887, the United States also 
obtained the right to establish a military base at Pearl 
Harbor.
    Americans were determined to ensure that the Hawaiian 
government did nothing to damage Hawaii's growing political and 
economic relationship with America. But the Hawaiian King and 
people were bitter about the loss of their lands to foreigners 
and were hostile both to the tightening bond with the United 
States and the increasing importation of Asian labor by haole 
plantations.
    Matters came to a head in 1887, when King Kalakaua 
appointed an anti-haole prime minister. The prime minister, 
with the strong support of the Hawaiian people, opposed 
granting a base at Pearl Harbor as a condition for extension of 
the Reciprocity Treaty, and took other measures that were 
considered anti-western. The business community, backed by the 
all-haole 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 haoles took control of the legislature. A suspected 
native revolt in favor of the King's younger sister, Princess 
Lili`uokalani, and new constitution were quelled when the 
American minister summoned Marines from an American warship at 
Honolulu. Haoles remained firmly in control of the government 
until the death of the King in 1891, when Queen Lili`uokalani 
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. See MacKenzie, supra at 11; 3 Kuykendall, supra at 
585-86. She was, however, forced to withdraw her proposed 
constitution. See Fuchs, supra at 30.
    Despite the Queen's apparent acquiescence, the majority of 
haoles 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. 
Mercantile and sugar interests also favored annexation by the 
United States to ensure access on favorable terms to mainland 
markets and protection from Oriental conquest.
    A Honolulu publisher and member of the Committee, Lorrin 
Thurston, informed the United States of a plan to dethrone the 
Queen. In response, the Secretary of the Navy informed Thurston 
that President Harrison had authorized him to say that ``if 
conditions in Hawaii compel you to act as you have indicated, 
and you come to Washington with an annexation proposition, you 
will find an exceedingly sympathetic administration here.'' 
L.A. Thurston, ``Memoirs of the Hawaiian Revolution'' 230-32 
(1936). The American annexation group closely collaborated with 
the American Minister in Hawaii, John Stevens.
    On January 16, 1893, at the order of Minister Stevens, 
American soldiers marched through Honolulu, to a building known 
as Arion Hall, located near both the government building and 
the palace. The next day, local revolutionaries seized the 
government building and demanded that Queen Lili`uokalani 
abdicate. Stevens immediately recognized the rebels' 
provisional government and placed it under the United States' 
protection.
    President Harrison promptly sent an annexation treaty to 
the Senate for ratification and denied any United States' 
involvement in the revolution. Before the Senate could act, 
however, President Cleveland, who had assumed office in March 
of 1893, withdrew the treaty. An investigator reported that the 
revolution had been accomplished by force with American 
assistance and against the wishes of Hawaiians. See Kuykendall 
& Day, supra at 179. To Congress, President Cleveland declared:

        [I]f a feeble but friendly state is in danger of being 
        robbed of its independence and its sovereignty by a 
        misuse of the name and power of the United States, the 
        United States cannot fail to vindicate its honor and 
        its sense of justice by an earnest effort to make all 
        possible reparation. [3 Kuykendall, supra at 364.]

He demanded the restoration of the Queen. But the Senate 
Foreign Relations Committee issued a report ratifying Stevens' 
actions and recognizing the provisional government, explaining 
that relations between the United States and Hawaii are unique 
because``Hawaii has been all the time under a virtual 
suzerainty of the United States.'' S. Rep. No. 53-277, at 21 (1894) 
(emphasis added).
    As a result of this impasse, the United States government 
neither restored the Queen nor annexed Hawaii. The provisional 
government thus called a constitutional convention whose 
composition and members it controlled. See Kuykendall & Day, 
supra at 183. The convention promulgated a constitution that 
imposed property and income qualification as prerequisites for 
the franchise and for the holding of elected office. Id. At 
184; MacKenzie, supra at 13. ``Native Hawaiians were, perhaps, 
not extremely sophisticated in governmental matters, but it 
took no great amount of political insight to perceive that this 
constitutional system was a beautifully devised oligarchy 
devoted to the purpose of keeping the American minority in 
control of the Republic.'' W.A. Russ, ``The Hawaiian Republic 
(1894-1898)'' 33-34 (1961). The Republic also claimed title to 
the Government Lands and Crown Lands, without paying 
compensation to the monarch. See MacKenzie, supra at 13. In 
1894, Sanford Dole was elected President of the Republic of 
Hawaii, and the United States gave his government prompt 
recognition.\3\
---------------------------------------------------------------------------
    \3\ A short-lived counter-revolution commenced on January 7, 1895. 
Republic police discovered it, arrested many royalist leaders, and 
imprisoned the Queen. Eventually, she was forced to swear allegiance to 
the new Republic in exchange for clemency for the revolutionaries. 
``Native Hawaiian Rights Handbook 13'' (Melody K. MacKenzie ed., 1991); 
Lawrence H. Fuchs, ``Hawai`i Pono: An Ethnic and Political History'' 
34-35 (1961).
---------------------------------------------------------------------------
    The election of President McKinley in 1896 gave the 
annexation movement new vigor. Another annexation treaty was 
sent to the Senate. Simultaneously, the Hawaiian people adopted 
resolutions sent to Congress stating that they opposed 
annexation and wanted to be an independent kingdom. Russ, supra 
at 198, 209.\4\ The annexation treaty failed in the Senate. 
But, to avoid the constitutional treaty procedure, pro-
annexation forces in the House of Representatives introduced a 
Joint Resolution of Annexation which needed only a majority in 
each House of Congress. The balance was tipped at this moment 
by the United States' entry into the Spanish-American War. 
American troops were fighting in the Pacific, particularly in 
the Philippines, and the United States needed to be sure of a 
Pacific base. See Kuykendall & Day, supra at 188; MacKenzie, 
supra at 14. In July 1898, the Joint Resolution was enacted--
``the fruit of approximately seventy-five years of expanding 
American influence in Hawaii.'' Fuchs, supra at 36.
---------------------------------------------------------------------------
    \4\ The resolutions were signed by 21,269 people, representing more 
than 50% of the Native Hawaiian population in Hawaii at that time. See 
Jon M. Van Dyke, The Political Status of the Native Hawaiian People, 17 
Yale L. & Pol'y Rev. 95, 103 & n.48 (1998) (citing Dan Nakaso, Anti-
Annexation Petition Rings Clear, Honolulu Advertiser, Aug. 5, 1998, at 
1).
---------------------------------------------------------------------------
    On August 12, 1898, the Republic of Hawaii ceded 
sovereignty and conveyed title to its public lands, including 
the Government and Crown Lands, to the United States. Joint 
Resolution for Annexing the Hawaiian Islands to the United 
States, ch. 55, 30 Stat. 750, 751 (1898) (``Annexation 
Resolution''). In 1900, Congress passed the Organic Act, Act of 
April 30, 1900, ch. 339, 31 Stat. 141 (1900) (``Organic Act''), 
establishing Hawaii's territorial government. And, in 1959, 
Congress admitted Hawaii to the Union as the 50th state. 
Admission Act of 1959, Pub. L. No. 86-3, 73 Stat. 4 (1959) 
(``Admission Act'').
    Commencing with the Joint Resolution for Annexation, the 
United States has repeatedly recognized that, as a result of 
the above-recited history, it has a special relationship with 
the Hawaiian people and a trust obligation with respect to the 
public lands of Hawaii.\5\
---------------------------------------------------------------------------
    \5\ The Joint Resolution stated that ``[t]he existing land laws of 
the United States relative to public lands shall not apply to such 
[public] land in the Hawaiian Islands; but the Congress of the United 
States shall enact special laws for their management and disposition'' 
and that revenues from the lands were to be ``used solely for the 
benefit of the inhabitants of the Hawaiian islands for educational and 
other public purposes.'' Annexation Resolution at 750. Section 73 of 
the Organic Act of 1900 returned control of most of the lands to the 
territory, but it, too, required the revenues be devoted to ``such uses 
and purposes for the benefit of the inhabitants of the Territory of 
Hawaii as are consistent with the joint resolution of annexation.'' 
Organic Act at 155 (Sec. 73).
---------------------------------------------------------------------------
    The special or trust relationship between the Hawaiian 
people and the United States was most explicitly affirmed in 
the Hawaiian Homes Commission Act of 1920, Pub. L. No. 76-34, 
42 Stat. 108 (1921).
    In 1826 it was estimated that there were 142,650 full-
blooded Hawaiians in the Hawaiian Islands. By 1919 their 
numbers had been reduced to 22,600. Historically, the 
Hawaiian's subsistence lifestyles required that they live near 
the ocean to fish and near fresh water streams to irrigate 
their staple food crop (taro) within their respective ahupua`a. 
Beginning in the early 1800's, more and more land was being 
made available to foreigners and was eventually leased to them 
to cultivate pineapple and sugar cane. Large numbers of 
Hawaiians were forced off the lands that they had traditionally 
occupied. As a result, they moved into the urban areas, often 
lived in severely-overcrowded tenements and rapidly contracted 
diseases for which they had no immunities.
    By 1920, there were many who were concluding that the 
native people of Hawaii were a ``dying race,'' and that if they 
were to be saved from extinction, they must have means of 
regaining their connection to the land, the `aina.
    In hearings on the matter, Secretary of the Interior 
Franklin Lane explained thetrust relationship on which the 
statute was premised:

          One thing that impressed me * * * was the fact that 
        the natives of the islands who are our wards, I should 
        say, and for whom in a sense we are trustees, are 
        falling off rapidly in numbers and many of them are in 
        poverty. [H.R. Rep. No. 66-839, at 4 (1920).]

He explicitly analogized the relationship between the United 
States and native Hawaiians to the trust relationship between 
the United States and other Native Americans, explaining that 
special programs for native Hawaiians are fully supported by 
history and ``an extension of the same idea'' that supports 
such programs for other Indians.\6\
---------------------------------------------------------------------------
    \6\ See H.R. Rep. No. 66-839, at 129-30 (statement of Secretary 
Lane) (``[w]e have got the right to set aside these lands for this 
particular body of people, because I think the history of the islands 
will justify that before any tribunal in the world'').
---------------------------------------------------------------------------
    Senator John H. Wise, a member of the Legislative 
Commission of the Territory of Hawaii, testified before the 
United States House of Representatives:

          The idea in trying to get the lands back to some of 
        the Hawaiians is to rehabilitate them. I believe that 
        we should get them on lands and let them own their own 
        homes . . . The Hawaiian people are a farming people 
        and fishermen, out of door people, and when they were 
        frozen out of their lands and driven into the cities 
        they had to live in the cheapest places, tenements. 
        That is one of the reasons why the Hawaiian people are 
        dying. Now, the only way to save them, I contend, is to 
        take them back to the lands and give them the mode of 
        living that their ancestors were accustomed to and in 
        that way rehabilitate them.\7\
---------------------------------------------------------------------------
    \7\ Id. At 3-4. Wise's testimony was quoted and adopted in the 
House Committee on the Territories' report to the full U.S. House of 
Representatives.

    Prince Jonah Kuhio Kalaniana`ole (``Prince Kuhio''), the 
Territory's sole delegate to Congress, testified before the 
full U.S. House of Representatives: ``The Hawaiian race is 
passing. And if conditions continue to exist as they do today, 
this splendid race of people, my people, will pass from the 
face of the earth.'' 8 Secretary of Interior Lane 
attributed the declining population to health problems like 
those faced by the ``Indian in the United States'' and 
concluded that the Nation must provide similar remedies.\9\
---------------------------------------------------------------------------
    \8\ 59 Cong. Rec. 7453 (1920) (statement of Prince Jonah Kuhio 
Kalanian`ole).
    \9}\H.R. Rep. 839, 66th Cong., 2d Sess. 5 (statement of Secretary 
of Interior Lane).
---------------------------------------------------------------------------
    The effort to ``rehabilitate'' this dying race by returning 
Native Hawaiians to the land led Congress to enact the Hawaiian 
Homes Commission Act on July 9, 1921. The Act sets aside 
203,500 acres of public lands (former Crown and Government 
lands acquired by the United States upon Annexation) for 
homesteading by Native Hawaiians. Hawaiian Homes Commission 
Act, 1920, Sec. 203, 42 Stat. At 109. Congress compared the Act 
to ``previous enactments granting Indians * * * special 
privileges in obtaining and using the public lands.'' H.R. Rep. 
No. 66-839, at 11 (1920).
    In support of the Act, the House Committee on the 
Territories recognized that, prior to the Mahele, Hawaiians had 
a one-third interest in the land. The Committee reported that 
the Act was necessary to address the way Hawaiians has been 
short-changed in prior land distribution schemes. Prince Kuhio 
further testified before the U.S. House of Representatives that 
Hawaiians had an equitable interest in the unregistered land 
that reverted to the Crown before being taken by the 
Provisional Government and, subsequently, the Territorial 
Government:

          [T]hese lands, which we are now asking to be set 
        aside for the rehabilitation of the Hawaiian race, in 
        which a one-third interest of the common people had 
        been recognized, but ignored in the division, and which 
        reverted to the Crown, presumably in trust for the 
        people, were taken over by the Republic of Hawaii. . . 
        . By annexation these lands became a part of the public 
        lands of the United States, and by the provisions of 
        the organic act under the custody and control of the 
        Territory of Hawai`i * * * We are not asking that what 
        your are to do be in the nature of a largesse or as a 
        grant, but as a matter of justice.

    The Act provides that the lessee must be a native Hawaiian, 
who is entitled to a lease for a term of ninety-nine years, 
provided that the lessee occupy and use or cultivate the tract 
within one year after the lease is entered into. A restriction 
on alienation, like those imposed on Indian lands subject to 
allotment, was included in the lease. Also like the General 
Allotment acts affecting Indians, 25 U.S.C. Sec. Sec. 331-334, 
339, 342, 348, 349, 354, 381 (1998), the leases were intended 
to encourage rural homesteading so that Native Hawaiians would 
leave the urban areas and return to rural subsistence or 
commercial farming and ranching. In February, 1923, the 
Congress amended the Act to permit one-half acre residence lots 
and to provide for home construction loans. Thereafter, the 
demand for residential lots far exceeded the demand for 
agricultural or pastoral lots. Office of State Planning, Office 
of the Governor, Pt. I, 1 Report on Federal Breaches of the 
Hawaiian Home Lands Trust, 4-6 (1992).
    For the next forty years, during the Territorial period 
(1921-1959) and the first twodecades of statehood (1959-1978), 
inadequate funding forced the Department of Hawaiian Home Lands to 
lease its best lands to non-Hawaiians in order to generate operating 
funds. There was little income remaining for the development of 
infrastructure or the settlement of Hawaiians on the home lands. The 
lack of resources--combined with questionable transfers and exchanges 
of Hawaiian home lands, and a decades-long waiting list of those 
eligible to reside on the home lands--rendered the home lands program a 
tragically illusory promise for most native Hawaiians. Id. At 12. While 
the Act did not succeed in its purpose, its enactment has substantial 
importance, however, because it consists an express affirmation of the 
United States' trust responsibility to the Hawaiian people.

Hawaiian Admission Act

    As a condition of statehood, the Hawaii Admission Act 
required the new State to adopt the Hawaiian Homes Commission 
Act and imposed a public trust on the lands ceded to the State. 
The 1959 Compact between the United States and the People of 
Hawaii by which Hawaii was admitted into the Union expressly 
provides that:

          As a compact with the United States relating to the 
        management and disposition of the Hawaiian home lands, 
        the Hawaiian Homes Commission Act, 1920, as amended, 
        shall be adopted as a provision of the Constitution of 
        said State, as provided in section 7, subsection (b) of 
        this Act, subject to amendment or repeal only with the 
        consent of the United States, and in no other manner: 
        Provided, That (1) * * * the Hawaiian home-loan fund, 
        the Hawaiian home-operating fund, and the Hawaiian 
        home-development fund shall not be reduced or impaired 
        by any such amendment, whether made in the constitution 
        or in the manner required for State legislation, and 
        the encumbrances authorized to be placed on Hawaiian 
        home lands by officers other than those charged with 
        the administration of said Act, shall not be increased, 
        except with the consent of the United States; (2) that 
        any amendment to increase the benefits to lessees of 
        Hawaiian home lands may be made in the constitution, or 
        in the manner required by State legislation, but the 
        qualifications of lessees shall not be changed except 
        with the consent of the United States; and (3) that all 
        proceeds and income from ``available lands,'' as 
        defined by said Act, shall be used only in carrying out 
        the provisions of said Act.

Hawaii Admission Act, Sec. 4, 73 Stat. At 5 (emphasis added).
          The lands granted to the State of Hawaii by 
        subsection (b) of this section and public lands 
        retained by the United States under subsections (c) and 
        (d) and later conveyed to the State under subsection 
        (e), together with the proceeds form the sale or other 
        disposition of any such lands and the income therefore, 
        shall be held by said State as a public trust for the 
        support of public schools and other public educational 
        institutions, for the betterment of the conditions of 
        native Hawaiian, as defined in the Hawaiian Homes 
        Commission Act, 1920, as amended, for the development 
        of farm and home ownership on as widespread a basis as 
        possible for the making of public improvements, and for 
        the provisions of lands for public use. Such lands, 
        proceeds, and income shall be managed and disposed of 
        for one or more of the foregoing purposes in such 
        manner as the constitution and laws of said State may 
        provide, and their use for any other object shall 
        constitute a breach of trust for which suit may be 
        brought by the United States States.

Id. Sec. 5(f), 73 Stat. At 6 (emphasis added).
    These were explicit delegations of Federal authority to be 
assumed by the new State. They were not discretionary. The 
language is not permissive. The United States did not absolve 
itself from any further responsibility in the administration or 
amendment of the Hawaiian Homes Commission Act. Nor did the 
United States divest itself of any ongoing role in overseeing 
the use of ceded lands or the income or proceeds therefrom. 
Rather, as the Federal and State courts have repeatedly held, 
the United States retains the authority to bring an enforcement 
action against the State or Hawaii for breach of section 5(f) 
trust. Han, et al. v. United States, 45 F3d 333 (9th Cir. 
1995); Pele Defense Fund v. Paty, 837 P.2d 1247 (1992).
    Despite the overthrow and annexation of the Hawaiian 
Nation, Hawaiian culture has survived, and the Hawaiian people 
have a unique culture that continues today.
    Love of the Land (aloha `aina)--Native Hawaiians honored 
their bond with the land (aloha `aina) by instituting one of 
the most sophisticated environmental regulatory systems on 
earth, the kapu system. For Hawaiians, the life of the land 
depended on the righteousness of the people.\10\ This concept 
motivated three decades of effort by Hawaiian leaders to regain 
Kaho`olawe, an island with deep spiritual significance. Once a 
military bombing practice target, Kaho`olawe is now listed in 
the National Historic Register, and is the subject of a massive 
federal clean-up project.\11\
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    \10\ The State's motto reflects this concept: ``Ua mau ea o ka 
`aina i ka pono.'' (The life of the land is perpetuated in 
righteousness.) Haw. Const. Art. XV, Sec. 5 (1978).
    \11\ Kaho`olawe Island: Restoring a Cultural Treasure. Final Report 
of the Kaho`olawe Island Conveyance Commission to the Congress of the 
United States 2 (March 31, 1993) (``This report calls upon the United 
States government to return to the people of Hawaii an important part 
of their history and culture, the island of Kaho`olawe. The island is a 
special place, a sanctuary, with a unique history and culture contained 
in its land, surrounding waters, ancient burial places, fishing 
shrines, and religious monuments''). Title X of the Fiscal Year 1994 
Department of Defense Appropriations Act, Pub. L. No. 103-139, 107 
Stat. 1418 (1994) was enacted on November 11, 1993, Section 10001(a) of 
Title X states that the island of Kaho`olawe is among Hawaii's historic 
lands and has a long, documented history of cultural and natural 
significance to the people of Hawaii. It authorized $400,000,000 to be 
spent for the clean-up of military ordnance from portions of the 
island. Id. See Haw. Rev. Stat. Chap. 6k (1993). The state of 
Kaho`olawe Island Reserve Commission holds the resources and waters of 
the island of Kaho`olawe in trust until such time as the State of 
Hawaii and the federal government recognize a sovereign Hawaiian 
entity. Id. At Sec. 6K-9.
---------------------------------------------------------------------------
    Subsistence--Ancient Hawaiians supplemented the produce of 
their farms and fishponds by fishing, hunting and gathering 
plants. These subsistence activities became increasingly more 
difficult to pursue as changing land ownership patters barred 
access to natural resources. Nonetheless, in predominantly 
Hawaiian rural areas such as Hana, Puna, and the island of 
Moloka`i, Native Hawaiians continue to feed their families as 
their ancestors did before them.\12\ Hawaii law has always 
guaranteed subsistence gathering rights to the people so they 
may practice native customs and traditions.\13\
---------------------------------------------------------------------------
    \12\ See Davianna McGregor, et al., ``Contemporary Subsistence 
Fishing Practices Around Kaho`olawe: Study Conducted for the NOAA 
National Marine Sanctuaries Program'' (May 1997). See also Jon K. 
Matsuoka, et Al., Governor's Moloka`i Subsistence Task Force Report 
(1993); Andrew Lind, ``An Island Community: Ecological Succession in 
Hawaii'' 102-03 (1968 ed.). (observing, in 1938, that traditional and 
customary practices survived in rural ``havens where the economy of 
life to which they are best adapted can survive.''). Hawaiian homestead 
tracts provide such rural havens.
    \13\ Haw. Const. Art. XII, Sec. 7 (1978). Hawaiian usage supersedes 
other sources of common law in Hawaii. Haw. Rev. Stat. Sec. 1-1 (1993); 
Branca v. Makuakane, 13 Haw. 499, 505 (1901) (``The common law was not 
formally adopted until 1893 and then subject to precedents and Hawaiian 
national usage.''). See also Haw. Rev. Stat. Sec. 7-1 (1993); Kalipi v. 
Hawaiian Trust Co., 656 P.2d 745 (Haw. 1982).
---------------------------------------------------------------------------
    Taro Cultivation (Kalo)--In Hawaiian legend, the staple 
crop of kalo (taro) was revered as the older brother of the 
Hawaiian people.\14\ Taro cultivation was not only a means of 
sustenance, but also a sacred duty of care to an older sibling. 
As land tenure changed, however, the ancient, stream-irrigated 
taro paddies (lo`i) were lost to newer crops, encroaching 
development, and the diversion of rivers and streams.\15\ In 
recent years, Hawaiians reclaimed and restored ancient taro 
fields, and formed a statewide association of native planters, 
`Onipa`a Na Hui Kalo.
---------------------------------------------------------------------------
    \14\ Lilikala Kame`elehiwa, ``Native Land and Foreign Desires: 
Pehea La E Pono Ali?'' 23-33 (1992). Hawaiian legend traces the 
ancestry of Hawai`i islands and people to the sky god, Wakea, and the 
earth goddess, Papa. Their first-born child, Haloa naka, was stillborn 
and his small body, when buried, became the first taro root. Their 
second child Haloa, named for the first, was the first Hawaiian. 6 A. 
Fornander, Collection of Hawaiian Antiquities and Folklore 360 (1920); 
David Malo, Hawaiian Antiquities 244 (1951).
    \15\ See, e.g., Reppun v. Board of Water Supply, 656 P.2d 57 (Haw. 
1982) (in this case, taro growers prevailed against water diversions 
that would have adversely affected their crops), cert. denied, 471 U.S. 
1040 (1985).
---------------------------------------------------------------------------
    Extended Family (`Ohana)--In the earliest era of Hawaiian 
settlement, governance was a function of the family.\16\ For 
Hawaiians, family included blood relatives, beloved friends 
(hoaloha) and informally adopted children (hanai).\17\ Family 
genealogies were sacred, and passed down in the form of oral 
chants only to specially chosen children--when those children 
were barred from learning their language, many of these ancient 
genealogies were lost. Nevertheless, family traditions of 
respect for elders, mutual support for kin and the adoption of 
related children have continued over the past two centuries.
---------------------------------------------------------------------------
    \16\ See generally, E.S. Craighill Handy and Mary Kawena Pukui, 
``The Polynesian Family System in Ka`u'' (1952); 1 Mary Kawena Pukui, 
E.W. Haertig & Catherine A. Lee, ``Nana I Ke Kumu'' 49-50 (6th pag. 
1983) (explaining Hawaiian concepts of adoption and fostering).
    \17\ `Ohana is a concept that has long been recognized by Hawaii 
courts. See, e.g., Leong v. Takasaki, 520 P.2d 758, 766 (Haw. 1976); 
Estate of Emanuel S. Cunha, 414 P.2d 925, 928-129 (Haw. 1966); Estate 
of Farrington, 42 Haw. 640, 650-651 (1958); O'Brien v. Walker, 35 Haw. 
104, 117-36 (1939), aff'd. 115 F.2d 956 (9th Cir. 1940), cert. denied, 
312 U.S. 707 (1941); Estate of Kamauoha, 26 Haw. 439, 448 (1922), In 
re: Estate of Nakuapa, 3 Haw. 342, 342-43 (1872).
---------------------------------------------------------------------------
    The `ohana beliefs, customs, and practices predated the 
ali`i; co-existed under the rule of the ali`i; and have 
continued to be practiced, honored and transmitted to the 
present. The `ohana continued to honor their `aumakua 
(ancestral deities). Traditional kahuna la`au lapa`au (herbal 
healers) continue their healing practices using native Hawaiian 
plants and spiritual healing arts. Family burial caves and lava 
tubes continue to be cared for. The hula and chants continue to 
be taught, indistinctly private ways, through `ohana lines.\18\
---------------------------------------------------------------------------
    \18\ Davianna Pomaika`i McGregor, An Introduction to ``Hoa`aina'' 
and Their Rights, 30 Hawaiian Journal of History at 9 (1996).
---------------------------------------------------------------------------
    Today, there is an extensive and growing network of 
reclaimed family genealogies, one of which is formally 
maintained by the Office of Hawaiian Affairs (Operation 
`Ohana). Huge Hawaiian family reunions are routinely held 
throughout the islands, in every week of the year. In honor of 
a cultural tradition that reveres the taro root as the older 
brother of the Hawaiian race, these modern activities are 
called ``ho`i kou i ka mole,'' or ``return to the tap-root.''
    Human Remains (`Iwi)--In Hawaiian culture, the remains of 
the deceased carried the mana (spiritual power) of the 
decedent. These remains were treated with great reverence, and 
fearful consequences were sure to befall any who desecrated 
them. The protection of the bones of their ancestors remains a 
solemn responsibility for modern day Hawaiians. The State of 
Hawaii has recognized the importance of protecting Hawaiian 
burial sites, and established a Hawaiian Burial Council to 
ensure the `iwi of Hawaiian ancestors are tread with proper 
respect.\19\
---------------------------------------------------------------------------
    \19\ Haw. Rev. Stat. Sec. 6E-43.5 (1993). This provision requires 
consultation with appropriate Hawaiian organizations, like Hui Malama I 
Na Kupuna O Hawaii Nei. See http://www.pixi.com/huimalam.
---------------------------------------------------------------------------
    Sacred Places (Wahi Kapu)--Ancient Hawaiians also 
recognized certain places as sacred, and took extraordinary 
measures to prevent their desecration. A modern day example of 
this concept is found at Mauna `Ala on the island of O`ahu, 
where the remains of Hawaii's ali`i (monarchs) are interred. 
This royal mausoleum is cared for by a kahu (guardian), who is 
the lineal descendant of the family charged since antiquity 
with protecting the bones of this line of chiefs.
    Hawaiian Language (`Olelo Hawaii)--``I ka `olelo no ke ola; 
i ka `olelo no ka make. With language tests life, with language 
rests death.'' \20\ The Hawaiian language was banned from the 
schools in 1896.\21\
---------------------------------------------------------------------------
    \20\ Ka`u: University of Hawaii Hawaiian Studies Task Force Report, 
23 (Dec. 1986). These anti-Hawaiian language efforts, which were 
falsely cast in terms of assimilation and societal unity. Nevertheless, 
the core issues of sovereignty and self-determination remained--for, 
``to destroy the language of a group is to destroy its culture.'' Adeno 
Addis, Individualism, Communitarianism, and the Rights of Ethnic 
Minorities, 66 Notre Dame L. Rev. 1219, 1270 (1991).
    \21\ 1 Revised Laws of Hawaii Sec. 2, at 156 (1905). As a direct 
result of this law, the number of schools conducted in Hawaiian dropped 
from 150 in 1880 to zero in 1902. Albert J. Schutz, ``The Voices of 
Eden: A History of Hawaiian Language Studies'' 352 (1994) [hereinafter 
Schutz]. Hawaiian language newspapers, which were the primary medium 
for communication in Hawaii at that time, declined from a total of 
twelve (nine secular and three religious) in 1910 to one religious 
newspaper in 1948. Id. At 362-63.
---------------------------------------------------------------------------
    During the republic and Territory, Hawaiian was strictly 
forbidden anywhere within schoolyards or buildings, and 
physical punishment for using it could be harsh. Teachers who 
were native speakers of Hawaiian (many were in the first three 
decades of the Territory) were threatened with dismissal for 
using Hawaiian in school. Some were even a bit leery of using 
Hawaiian place names in class. Teachers were sent to Hawaiian-
speaking homes to reprimand parents for speaking Hawaiian to 
their children.\22\
---------------------------------------------------------------------------
    \22\ Larry K. Kimura and William Wilson, 1 Native Hawaiians Study 
Commission Minority Report, 196 (U.S. Dept. of Interior 1983). See also 
Davianna McGregor-Alegado, Hawaiians: Organizing in the 1970s. 7 
Amerasia Journal 29, 33 (1980) (``Through a systematic process of 
assimilation in the schools, especially restricting the use of the 
native language, Hawaiians were taught to be ashame of their cultural 
heritage and feel inferior to the haole American elite in Hawaii.'').
---------------------------------------------------------------------------
    The language was kept alive in rural Hawaiian families and 
in the mele and oli (songs and chants) of native speakers.\23\ 
In 1978, the Hawaii State Constitution was finally amended to 
make Hawaiian one of the two official languages of the 
state.\24\ In the two decades since, Hawaiian language has 
become a required offering in the state Department of Education 
curriculum, and private non-profit Hawaiian language schools 
have been established in all major islands, with the assistance 
of federal funds.\25\ In 1997-1998, 1,351 students were 
enrolled in fourteen Hawaiian language immersion programs 
throughout the State, from pre-school through high school.\26\ 
Hawaiian remains the first language of the native community 
located on the isolated island of Ni`ihau, which was spared the 
effects of the 1896 ban.\27\
---------------------------------------------------------------------------
    \23\ ``[T]he renewal of interest in the Hawaiian language and 
culture in the 1970s did not relight an extinguished flame, but fanned 
and fed the embers(.)'' Schutz, supra note 23, at 361.
    \24\ Haw. Const. Art. XV, sec. 4 (1978). See also Haw. Const. Art. 
X, sec. 4 (1978) (requiring the State to ``promote the study of 
Hawaiian culture, history and language * * * [through] a Hawaiian 
education program * * * in the public schools.'') Restrictions on the 
use of Hawaiian language in public schools were not actually lifted 
until 1986. See Haw. Rev. Stat. Sec. 298-2(b) (1993).
    \25\ Native Hawaiian Education Act, Pub. L. No. 103-382, Sec. 101, 
108 Stat. 3518 (Oct. 20, 1994).
    \26\ Office of Hawaiian Affairs, Native Hawaiian Data Book 244-45 
(1998) (Table/Figure 4.22). Projected enrollment for the 2005-2006 
school year is 3,397. Id. Dramatic increases in the enrollment of 
Hawaiians at the University of Hawaii took place shortly after adoption 
of the 1978 Constitutional Amendments and again after statutory 
restrictions were lifted in 1986 on use of the Hawaiian language in 
schools. Id. at 216-17 (Table/Figure 4.7). According to the 1990 
Census, Hawaiian is spoken in 8,872 households. Id. at 240-41 (Table/
Figure 4.20).
    \27\ Karen Silva, Hawaiian Chant: Dynamic Cultural Link or 
Atrophied Relic?, 98 Journal of the Polynesian Society 85, 86-87 (1989) 
cited in Schutz, supra note 27, at 357.
---------------------------------------------------------------------------
    Conflict Resolution (Ho `oponopono) \28\--This ancient 
Hawaiian tradition of problem solving resembles the Western 
practice of mediation, but with the addition of a deeply 
spiritual component. It was and is traditionally practiced 
within families, and used to resolve disputes, cure illnesses, 
and reestablish connections between family members and their 
akua (gods). Today, trained practitioners are formally teaching 
the ho`oponopono methods, and there has been a resurgence of 
its use. The state courts have implemented a formal ho 
`oponopono program that is designed to help families to resolve 
their problems outside the courtroom.
---------------------------------------------------------------------------
    \28\ See generally Victoria Shook, Ho`oponopono, ``Contemporary 
Uses of a Hawaiian Problem-Solving Process'' (1985).
---------------------------------------------------------------------------
    Civic Association--Prior to Annexation, Native Hawaiians 
were active participants in the political life of the Islands. 
Politicla associations were organized to protest against the 
Bayonet Constitution of 1887 and subsequent annexation 
efforts.\29\ Hawaiian Civic Clubs were established at the turn 
of the century to campaign against the destitute and unsanitary 
living conditions of Hawaiians in the city of Honolulu and its 
outskirts.\30\ These associations still exist, and count among 
their membership many of Hawaii's most distinguished native 
leaders. In addition, Hawaiians living on Hawaiian Home Lands 
have, from the program's beginning in 1921, established 
homestead associations.
---------------------------------------------------------------------------
    \29\ Hui Kalai`aina, a Hawaiian political organization, lobbied for 
the replacement of the 1887 Bayonet Constitution, and led mass, 
peaceful protests that stalled negotiations for a new Treaty of 
Reciprocity, Kuykendall, supra note 5, vol. III, at 448; Noenoe K. 
Silva, Kanaka Maoli Resistance to Annexation, 1 `O`iwi: A Native 
Hawaiian Journal at 45 (1998).
    \30\ Davianna Pomaika`i McGregor, `Aina Ho `opulapula: Hawaiian 
Homesteading, 24 The Hawaiian Journal of History 1, 4-5 (1990).
---------------------------------------------------------------------------
    Hawaiian Healing (La`au Lapa`au)--Quietly practiced over 
the past two centuries following European contact, Hawaiian 
medicine has always been an important alternative to Western 
medical care. Today, it is credible form of treatment for 
many.\31\ Practitioners use Hawaiian medicinal plants (la`au) 
massage (lomilomi), and spiritual counseling to heal. Hawaiian 
health centers, established with Federal financial support \32\ 
now incorporate traditional Hawaiian healing methods into their 
regiments of care.
---------------------------------------------------------------------------
    \31\ Isabella Aiona Abbott, ``La`au Hawaii: Traditional Uses of 
Hawaiian Plants'' 135 (1992); Nanette L. Kapulani Mossman Judd, La`au 
Lapa`au: Herbal healing among contemporary Hawaiian healers. 5 Pacific 
Health Dialog Journal of Community Mental Health and Clinical Medicine 
for the Pacific: The Health of Native Hawaiians 239-45 (1998).
    \32\ These traditional methods of healing are recognized and 
financed through appropriations under the Native Hawaiian Healthcare 
Act of 1988, Pub. L. No. 100-579, 102 Stat. 2916 (now codified at 42 
U.S.C. Sec. Sec. 11701, et seq.).
---------------------------------------------------------------------------
    Hula Academies (Halau Hula)--Once banned by missionaries as 
sacrilege, the ancient art of hula \33\ accompanied by chanting 
in the native tongue, flourishes today. Halau exist throughout 
the islands, and hula and chants are now regularly incorporated 
into public ceremonies.
---------------------------------------------------------------------------
    \33\ ``[A] few chanters, dancers, and teachers among the po'e hula 
[hula people] kept alive the more traditional forms, and with the 
flowering of the ``Hawaiian Renaissance'' in the 1970's their knowledge 
and dedication became a foundation for revitalizing older forms.'' 
Dorothy B. Barrere, Mary Kawena Pukui & Marion Kelly, ``Hula Historical 
Perspectives'' 1-2 (1980). Hula was recently designated the state 
dance. Act 83, Relating To Hula (June 22, 1999) (to be codified at Haw. 
Rev. Stat. Chapter 5).
---------------------------------------------------------------------------
    Voyaging/Celestial Navigation--Ancient Hawaiians were 
skilled navigators, finding their way thousands of miles across 
the open Pacific using only the stars and the currents as 
guides. In the 1970's, a group of Hawaiians formed the 
Polynesian Voyaging Society. The Society researched Polynesian 
canoe-making and navigating traditions, and commissioned and 
construction of an historically authentic double-hulled 
voyaging canoe, the Hokule`a (``Star of Gladness''). A Native 
Hawaiian crew was trained to sail the canoe, and a Native 
Hawaiian navigator was chosen to learn the art of celestial 
navigation from one of its few remaining Polynesian 
practitioners. The canoe's first voyage to Tahiti in 1976 was 
tremendously successful. It confirmed the sophisticated 
navigational skills of ancient Polynesians and also instilled a 
sense of pride in Hawaiian culture.\34\ Other canoes have been 
built, and more voyages made since (the Hokule`a is currently 
sailing to the tiny island of Rapa Nui--Easter Island).\35\ The 
art of voyaging is alive and well in modern Hawaii, a testament 
to the skill and courage of the ancient navigators who first 
settled these islands.
---------------------------------------------------------------------------
    \34\ Ben Finney, ``Voyage of Rediscovery: A Cultural Odyssey 
through Polynesia'' (1995). In 1995, the Hokule`a and Hawaiiloa sailed 
to the Marquesas Islands. PBS recently broadcast an hour-long 
documentary of this voyage entitled Wayfinders--A Pacific Odyssey. See 
http://pbs.org/wayfinders.
    \35\ Hokule`a left Hawaii on June 15, 1999 for Rapa Nui. See http:/
/www.leahi.kcc.hawaii.edu/org/pvs for reports on the voyage's progress 
and educational programs and materials.
---------------------------------------------------------------------------
    Hawaiians today live in a markedly different world from the 
one that shaped their ancient practices. Yet they struggle to 
perpetuate a culture passed down to them through two millennia.

      federal actions within the context of federal indian policy

    The two significant actions of the United States as they 
relate to the native people of Hawaii must be understood in the 
context of the Federal policy towards America's other 
indigenous, native people at the time of those actions.
    In 1921, when the Hawaiian Homes Commission Act was enacted 
into law, the prevailing Federal policy was premised upon the 
objective of breaking up Indian reservations and allotting 
lands to individual Indians. Those reservation lands remaining 
after the allotment of lands to individual Indians were opened 
up to settlement by non-Indians, and significant incentives 
were authorized to make the settlement of former reservation 
lands attractive to non-Indian settlers. Indians were not to be 
declared citizens of the United States until 1924, and it was 
typical that a twenty-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.'' However, once the 
restraint on alienation was lifted and individual Indian lands 
became subject to taxation, Indians who did not have the 
wherewithall to pay the taxes on the land, found their lands 
seizedand put up for sale. This allotment era of Federal policy 
was responsible for the alienation of nearly half of all Indian lands 
nationwide--hundreds of millions of acres of lands were no longer in 
native ownership, and hundreds of thousands of Indian people were 
rendered not only landless but homeless.
    The primary objective of the allotment of 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'' is thus readily understandable in the context of 
the prevailing Federal Indian policy in 1921.
    In 1959, when the State of Hawaii was admitted into the 
Union, the Federal policy toward the native peoples of America 
was designated to divest the Federal government of its 
responsibilities for the indigenous people and to delegate 
those responsibilities to the several states. A prime example 
of this Federal policy was the enactment of Public Law 83-280, 
an Act which vested criminal jurisdiction and certain aspects 
of civil jurisdiction over Indian lands to certain states. In 
similar fashion, the United States transformed most of its 
responsibilities related to the administration of the Hawaiian 
Homes Commission Act to the new State of Hawaii, and in 
addition, imposed a public trust upon the lands that were ceded 
back to the State for five purposes, one of which was the 
betterment of conditions of Native Hawaiians.

            constitutional source of congressional authority

    The United States Supreme Court has so often addressed the 
scope of Congress' constitutional authority to address the 
conditions of the native people that it is now well-
established.\36\ Although the authority has been characterized 
as ``llenary,'' Morton v. Mancari, 427 U.S. 535 (1974), its 
exercise is subject to judicial review. Delaware Tribal Bus. 
Comm. v. Weeks, 430 U.S. 73 (1977); United States v. Sioux 
Nation, 448 U.S. 371 (1980).\37\ It has been held to encompass 
not only the native people within the original territory of the 
thirteen states but also lands that have been subsequently 
acquired. United States v. Sandoval, 231 U.S. 28 (1913).
---------------------------------------------------------------------------
    \36\ ``The power of the general government over these remnants of a 
race once powerful, now weak and diminished in numbers, is necessary to 
their protection, as well as to the safety of those among whom they 
dwell. It must exist in that government, because it never has existed 
anywhere else, because the theater of its exercise is within the 
geographical limits of the United States * * * From their very weakness 
and helplessness, so largely due to the course of dealing of the 
Federal government with them, and the treaties in which it has been 
promised, there arises the duty of protection, and with it the power. 
This has always been recognized by the executive, and by congress, and 
by this court, whenever the question has arisen.'' United States v. 
Kagama, 118 U.S. 375 (1886).
    \37\ The rulings of this Court make clear that neither the 
conferring of citizenship upon the native people, the allotment of 
their lands, the lifting of restrictions on alienation of native land, 
the dissolution of a tribe, the emancipation of individual native 
people, the fact that a group of natives may be only a remnant of a 
tribe, the lack of continuous Federal supervision over the Indians, nor 
the separation of individual Indians from their tribes would divest the 
Congress of its constitutional authority to address the conditions of 
the native people. Cherokee Nation v. Hitchcock, 187 U.S. 294 (1902); 
United States v. Celestine, 215 U.S. 278 (1909); Tiger v. Western Inv. 
Co., 221 U.S. 286 (1911); United States v. Nice, 241 U.S. 591 (1916); 
Chippewa Indians v. United States, 307 U.S. 1 (1939); Delaware Tribal 
Bus. Comm. v. Weeks, 430 U.S. 73, 85-90 (1977); United States v. John 
437 U.S. 634 (1978).
---------------------------------------------------------------------------
    The ensuing course of dealings with the indigenous people 
has varied from group to group, and thus, the only general 
principles that apply to relations with the first inhabitants 
of this nation is that they were dispossessed of their lands, 
often but not always relocated to other lands set aside for 
their benefit, and that their subsistence rights to hunt, fish, 
and gather have been recognized under treaties and laws, but 
not always protected nor preserved.
    Some commentators have suggested that no other group of 
people in America has been singled out so frequently for 
special treatment, unique legislation, and distinct expressions 
of Federal policy. Although the relationship between the United 
States and its native people is not a history that can be said 
to have followed a fixed course, it is undeniably a history 
that reveals the special status of the indigenous people of 
this land. American laws recognize that the native people do 
not trace their lineage to common ancestors, and from time to 
time, our laws have in fact discouraged the indigenous people 
from organizing themselves as ``tribes.'' But this much is 
true--that for the most part, at any particular time in our 
history, the laws of the United States have attempted to treat 
the native people, regardless of their genealogical origins and 
their political organization, in a consistent manner.
    In one legal action, a petitioner asserted that the scope 
of constitutional authority vested in the Congress is 
constrained by the manner in which the native people organize 
themselves. The petitioner contended that if the native people 
are not organized as tribes, then the Congress lacks the 
authority to enact laws and the President is without authority 
to establish policies affecting the native people of the United 
Stats. However, the original language proposed for inclusion in 
the constitution made no reference to ``tribes'' but instead 
proposed that the Congress be vested with the authority ``to 
regulate affairs with the Indians as well within as without the 
limits of the United States''. [The Records of the Federal 
Convention of 1787, Volume II, Journal Entry of August 18, 
1787, p. 321.] A further refinement suggested that the language 
read, ``and with Indians, within the Limits of any State, not 
`subject to the laws thereof' '' [The Records of the 
FederalConvention of 1787, Volume II, Journal Entry of August 22, 1787, 
p. 367.]
    The exchanges of correspondence between James Monroe and 
James Madison concerning the construction of what was to become 
Article I, Section 8, Clause 3 of the Constitution make no 
reference to Indian tribes, but they do discuss Indians.\38\ 
Nor is the term ``Indian tribe'' found in any dictionaries of 
the late eighteenth century, although the terms ``aborigines'' 
and ``tribe'' are defined.\39\
---------------------------------------------------------------------------
    \38\ In his letter to James Monroe of November 27, 1784, James 
Madison observes, ``The federal articles give Congs. The exclusive 
right of managing all affairs with the Indians not members of any 
State, under a proviso, that the Legislative authority, of the State 
within its own limits be not violated. By Indian[s] not members of a 
State, must be meant those, I conceive who do not live within the body 
of the Society, or whose Persons or property form no objects of its 
laws. In the case of Indians of this description the only restraint on 
Congress is imposed by the Legislative authority of the State.'' The 
Founders' Constitution, Volume Two, Preamble through Article 1, Section 
8, Clause 4, p. 529, James Madison to James Monroe, 27 Nov. 1784, 
Papers 8:156-57; See also, James Monroe to James Madison, 15 Nov. 1784, 
Madison Papers 8:140.
    \39\ The term ``aborigines'' is defined as ``the earliest 
inhabitants of a country, those of whom no original is to be traced,'' 
and the term ``tribe'' is defined as ``a distinct body of the people as 
divided by family or fortune, or any other characteristic.'' [A 
Dictionary of the English Language (Samuel Johnson ed., 1755).] The 
annotations accompanying the term ``Indian'' in the 1901 Oxford 
dictionary indicates the use of the term as far back as 1553. [Oxford 
English Dictionary (James A. H. Murray ed., 1901)]
---------------------------------------------------------------------------
    Whether the reference was to ``aborigines'' or to 
``Indians,'' the Framers of the Constitution did not import a 
meaning to those terms as a limitation upon the authority of 
the Congress, but as descriptions of the native people who 
occupied and possessed the lands that were late to become the 
United States--whether those lands lay within the boundaries of 
the original thirteen colonies, or any subsequently acquired 
territories. This more logical construction is consistent with 
more than two hundred Federal statutes which establish that the 
aboriginal inhabitants of America are a class of people known 
as ``Native Americans'' and that this class includes three 
groups--American Indians, Alaska Natives, and Native Hawaiians.
    The unique native peoples of Alaska have been recognized as 
``Indian'' ``Tribes'' for four hundred years. The Founders' 
understanding of the ``Eskimaux'' as Indian Tribes, and 
Congress' recognition of its power over Alaska Natives even 
since the passage of the Fourteenth Amendment and the 
acquisition of the Alaskan territory, help illuminate Congress' 
power over, and responsibility for, all Native American 
peoples.
    The treatment of Alaskan Eskimos is particularly 
instructive because the Eskimo peoples are linguistically, 
culturally, and ancestrally distinct from other American 
``Indians.'' Many modern scholars do not use the word 
``Indian'' to describe Eskimos or the word ``tribe'' to 
describe their nomadic family groups and villages. The Framers, 
however, recognized no such technical distinctions. In the 
common understanding of the time, Eskimos, like Hawaiian 
Natives, were aboriginal peoples; they were therefore 
``Indians.'' Their separate communities of kind and kin were 
``Tribes.'' Congress' special power over these aboriginal 
peoples is beyond serious challenge.
    During the Founding Era, and during the Constitutional 
Convention, the terms ``Indian'' and ``Tribe'' were used to 
encompass the tremendous diversity of aboriginal peoples of the 
New World and the wide range of their social and political 
organizations. The Founding generation knew and dealt with 
Indian Tribes living in small, familial clans and in large, 
confederated empires. Native Alaska villages and Native 
Hawaiians residing in their aboriginal lands (i.e., the small 
islands that comprise the State of Hawaii) are ``Indian 
Tribes'' as that phrase was used by the Founders. The Framers 
drafted the Constitution not to limit Congress' power over 
Indians, but to make clear the supremacy of Congress' power 
over Indian affairs. The Congress has retained the power to 
promote the welfare of all native American peoples, and to 
foster the ever-evolving means and methods of native American 
self-governance.
    This history is accurately reflected in two centuries of 
U.S. Supreme Court jurisprudence. Beginning with Chief Justice 
Marshall, the Supreme Court has recognized the power of the 
United States to provide for the welfare, and to promote the 
self-governance, of Indian peoples. This recognition of the 
right of the indigenous, native people of the United States to 
self-determination and self-governance is part of the structure 
of America's complex multi-sovereign system of governance.
    In the language and understanding of the Founders, 
``tribes'' or ``peoples'' did not lose their identity as such 
when conquered or ruled by kings. Like other Native American 
peoples, Hawaiian Natives lived for thousands of years as 
``tribes,'' then as confederations of tribes, now as conquered 
tribes. All aboriginal peoples of the New World were 
``Indians.'' That is what it meant to be an ``Indian.'' The 
Founders knew that Columbus had not landed in India or the 
Indies; Columbus's navigational error had been corrected, but 
his malaprop had survived. And so, in the words of one of the 
earliest English books about America, the native peoples were 
``Indians,'' for the simple reason that ``so caule wee all 
nations of the new founde lands.'' \40\
---------------------------------------------------------------------------
    \40\ Gonzalo Fernandez de Oviego Y Valdez, ``De la natural hystoria 
de las Indias'' (1526), trans. by R. Eden (1955), in E. Arber, ed., 
``The First Three English Books on America'' (Birmingham, Eng., 1885) 
(emphasis added).
---------------------------------------------------------------------------
    The earliest explorers of the New World encountered an 
extraordinary diversity of aboriginal peoples--from the 
elaborate Aztec and Inca civilizations of the South to the 
nomadic ``Exquimaux'' of the North. These early experiences and 
the contemporary fascination with these diverse cultures 
informed the concept of ``Indians'' in the colonial era.
    There was no understanding in the founding generation that 
Indians constituted a distinct or separate race. Indians were 
often assumed by the European settlers to be peoples like 
themselves.

          Before the development of modern dating methods that 
        established beyond doubt the great antiquity of early 
        man in America, it was believed that the Indians were 
        offshoots of known civilizations of the Old World. Some 
        scholars argued that they came from Egypt, others that 
        they had broken away from the Chinese, and still others 
        that they were descendants of Phoenician or Greek 
        seamen * * * Another belief, more legend than theory, 
        held that various light-skinned tribes possessed the 
        blood of Welshmen who had come to America in the remote 
        past * * * \41\
---------------------------------------------------------------------------
    \41\ A.M. Joseph, Jr., ``The Indian Heritage of America'' at 40 
(rev. ed., 1991).

    Others theorized the Indians were the ``lost tribes'' of 
Israel.\42\
---------------------------------------------------------------------------
    \42\ Id. At 40; Letter, Jefferson to Adams, June 11, 1812 
(discussing a popular book arguing ``all the Indians of America to be 
descended from the Jews * * * and that they all spoke Hebrew''), in 
Jefferson, Writings (Library of America, 1984), 1261; Bernal Diaz, 
``The Conquest of New Spain'' at 26 (1568) (J.M. Cohen, tr., 1963) 
(objects at Indian site attributed ``to the Jews who were exiled by 
Titus and Vespasian and sent overseas'').
---------------------------------------------------------------------------
    In his popular Notes on the State of Virginia, Thomas 
Jefferson accepted the plausibility of the popular notion that 
the Indians had migrated to America from Europe via ``the 
imperfect navigation of ancient times.'' \43\ Jefferson noted, 
however, that Cook's voyage through the Bering Strait suggested 
that all the ``Indians of America'' except the ``Eskimaux'' 
migrated from Asia. Jefferson theorized that the Eskimos had 
come to America via Greenland from ``the northern parts of the 
old continent,'' i.e., Northern Europe.\44\
---------------------------------------------------------------------------
    \43\ Jefferson, Notes on the State of Virginia (1787), in 
Jefferson, Writings, at 226. Jefferson's Notes--which had circulated 
among several of the Founders for years before the Constitutional 
Convention--were written in 1781, published in February 1787 and 
appeared in newspapers during the Convention. Barlow to Jefferson, June 
15, 1787, in Papers of Thomas Jefferson (Boyd, ed.), 11:473 (``Your 
Notes on Virginia are getting into the Gazetts in different States''); 
see also, e.g., id. 8:147, 9:38, 517, 12:136 (Madison's copy); id. At 
10:464, 15:11 (Rutledge's comments on); id. At 8:160, 164 (Adams 
comments on); id. At 8:147, 229, 245 (Monroe's copy); id. At 21:392-93 
(citations re circulation of Notes).
    \44\ Jefferson, Notes, supra, at 226.
---------------------------------------------------------------------------
    Modern scholars might be ``puzzled whether they [Eskimos] 
were Indians, or a separate and somewhat mysteriously distinct 
people on earth * * *'' \45\ Other might question whether the 
native people of Hawaii are ``Indians.'' Such distinctions 
would themselves have puzzled the Founding generation. The 
``Indians'' were many peoples, with distinct languages, 
cultures and socio-political organizations. They had diverse 
origins, perhaps Asia, perhaps Europe, perhaps the lands of the 
Bible. But from wherever they came, and whatever their distinct 
cultures and governments, they were all ``Indians,'' for they 
were aboriginal inhabitants of the New World. The Founding 
generation had no difficulty thinking of Eskimos as 
``Indians.'' They would have had no more difficulty treating as 
``Indians'' native peoples whose origins lay a thousand years 
ago in the South Pacific. As far as the Founders knew, all the 
``aboriginal inhabitants'' of the New World came from the South 
Pacific via the ``imperfect navigation of ancient times.''
---------------------------------------------------------------------------
    \45\ Josephy, supra, at 57; see also Oxford English Dictionary (1 
sted.) (``OED''), ``Indian'' (``The Eskimos * * * Are usually excluded 
from the term'').
---------------------------------------------------------------------------
    The Founding generation used ``tribes'' to denote peoples 
of like kind or kin. As used in the Constitution, the word 
``tribe'' does not refer to some specific type of government or 
social organization. All Native American peoples were 
``tribes,'' whether they lived in villages or spread out in 
vast federations or empires. ``Tribe'' and ``nation'' were used 
to refer not to governments, but to groups of people 
recognizing a common membership or identity as such. 
Application of the biblical concept of ``tribes'' to the 
``Indians'' reflected the understanding that the natives of the 
New World were not one people, but many ``peoples,'' 
``nations,'' or ``tribes''--terms used interchangeably well 
into the Nineteenth Century.\46\
---------------------------------------------------------------------------
    \46\ Robert F. Berkhofer, Jr., ``The White Man's Indian'' at 16 
(1979).
---------------------------------------------------------------------------
    Eskimos lived in small clans or villages that some scholars 
distinguish from ``tribes.'' The Founding era knew no such 
technical usage. Notwithstanding the absence of clear 
government, Eskimo peoples were called ``Tribes'' and 
``Nations.'' \47\ More generally, peoples of every sort were 
``tribes.'' In Gibbon's already popular Decline and Fall of the 
Roman Empire (1776), the early inhabitants of Britain were said 
to live in ``Tribes.'' \48\ The early Greeks and Romans were 
``tribes.'' Welshmen belonged to Tribes.\49\
---------------------------------------------------------------------------
    \47\ Alexander Fisher, ``A Journal of a Voyage of Discovery'' 
(1821) (``all the Esquimaux tribes'') (quoted in Oswalt, supra, at 74); 
``The Private Journal of Captain G.F. Lyon'', (1824) (an Eskimo 
``tribe'') (quoted in Oswalt, supra, at 179); George Lyon, ``A Brief 
Narrative of an Unsuccessful Attempt to Reach Repulse Bay'' (1825); 
``Narrative of the Second Arctic Expedition Made by Charles F. Hall'' 
(Nourse, ed., 1879), 63 (describing ``tribe'' of ``Eskimo''); John 
Murdoch, ``Review of The Eskimo Tribes,'' American Anthropologist, 
1:125-133 (1888); Heinrich Rink, ``Tales and Traditions of the Eskimo'' 
(1875) 1-5 (describing small and large divisions of Eskimos as 
``tribes'').
    \48\ Vol. 1, p. 33 (describing the ``tribes of Britons'' who ``took 
up arms with savage fierceness'' and the ``love of freedom without the 
spirit of union.'')
    \49\ OED, ``Tribe,'' def. 2.a-d.
---------------------------------------------------------------------------
    For the Founding generation, ``tribes'' came into the 
language from the most widely read account of tribal history--
the biblical story of the Twelve Tribes of Israel.\50\ The 
Bible gives the history of the Tribes from the birth of the 
sons of Israel, through the growth of the families to immense 
``tribes'' numbering in the tens of thousands. The Bible 
follows the tribes into captivity and exodus and into Canaan, 
where the ``tribes'' lived in a unified Kingdom under Kings 
David and Solomon.\51\ Even under the reign of Kings, the 
peoples remained ``tribes.'' When King Solomon dedicated the 
temple in Jerusalem, he called together the leaders of the 
``tribes'':
---------------------------------------------------------------------------
    \50\ OED, ``Tribe'' (application of the word ``to the tribes of 
Israel * * * from its biblical use, was the earliest use in English'').
    \51\ Genesis 49:1-28 (Jacob predicts the fate of the twelve 
tribes); Numbers 1 (God instructs Moses to call heads of each tribe); 2 
Samuel 5:1-3 (leaders of tribes form league under King David); 1 
Chronicles 11:1-3 (same); Psalm 122 (David expresses joy for the house 
of God, where tribes give thanks).

          Solomon assembled the elders of Israel, and all the 
        heads of the tribes, the chief of the fathers of the 
        children of Israel, unto King Solomon in Jerusalem, 
        that they might bring up the ark of the covenant of the 
        Lord out of the city of David, which is Zion.\52\
---------------------------------------------------------------------------
    \52\ 1 Kings 8:1 (``King James translation'' (1611-1769)); 1 Kings 
11:12-13.

    When the Kingdom ended, it divided by tribe. The tribes of 
Benjamin and Judah fought the other tribes that revolted and 
were ``lost'' \53\ Throughout all this history, through the 
unification and monarchical period, through the revolt and 
diaspora, the Bible taught that the people of Israel remained 
``tribes,'' led by their ``chief fathers.,'' \54\ In the New 
Testament, all the peoples of the earth were ``tribes.'' \55\ 
In the founding generation, ``tribes'' in the New World, like 
``tribes'' in the Bible, referred not to a form of social 
organization or government, but to ``peoples'' who identified 
themselves by kin, tradition, or faith.
---------------------------------------------------------------------------
    \53\ See 1 Kings 12; 2 Chronicles 10-11, 36; 2 Kings 17, 25.
    \54\ Ezra 1:5.
    \55\ Matthew 24:30 (Christ prophesizes that, at the end of time 
``then shall all the tribes of the earth mourn, and they shall see the 
Son of man coming'').
---------------------------------------------------------------------------
    The Founders had seen analogies to the complex tribal 
history of the Bible. The Founders knew the native peoples 
evolved, united and divided in ever shifting forms of 
government. The native peoples had formed ``powerful 
confederac[ies],'' tribes united under common chiefs, and 
federations, of tribes joined with other federations.\56\ The 
colonies and the States under the Articles of Confederation had 
repeatedly dealt with vast federations of tribes, including the 
``Six Nations'' in the north and the ``five civilized tribes'' 
in the south.\57\ The Indian peoples were ``tribes'' not 
because they formed any particular organization, but because 
they recognized themselves as distinct peoples, with cultures, 
languages and societies separate from each other and from the 
European invaders.
---------------------------------------------------------------------------
    \56\ Jefferson, Notes on the State of Virginia, supra, at 221.
    \57\ See, e.g., Treaty with the Six Nations, Oct. 22, 1784 (treaty 
with the many tribes of Senecas, Mohawks, Onondagas, Cayugas, Oneida 
and Tuscarora), in C. J. Kappler, ed., ``Indian Affairs: Laws and 
Treaties,'' 2:5-6; Treaty of Fort McIntosh, Jan. 21, 1785 (treaty with 
the Wiandot, Delaware, Chippewa, and Ottawa ``and all their tribes''), 
in id. At 2:6-8, Treaty of Hopewell, Nov. 28, 1785 (treaty with all the 
``tribes'' of the Cherokee), in id. At 2:8-11.
---------------------------------------------------------------------------
    By the Founding era, ``Tribe'' had expanded from groups of 
people to the natural division of plants and animals. Milton 
asked in ``Paradise Lost,'' ``Oh flours * * * who now shall 
reare ye to the Sun, or ranke Your Tribes?'' (xi, 279). John 
Adams wrote, ``there is, from the highest Species of animals 
upon this Globe which is generally thought to be Man, a regular 
and uniform Subordination of one Tribe to another down to the 
apparently insignificant animalcules in pepper Water.'' \58\ 
All creation came in tribes. Mankind was organized in tribes, 
the Animal Kingdom was organized in ``tribes,'' the ``Vegetable 
Kingdom'' was organized in ``Tribes.'' \59\ To every kind its 
tribe.
---------------------------------------------------------------------------
    \58\ John Adams, July 1756 (emphasis added), in L.H. Butterfield, 
et al., eds., ``Diary and Autobiography of John Adams'' (Cambridge, 
Mass., 1961), I:39.
    \59\ Id.; see also OED, ``Tribe,'' 5.a; Cook, supra, at ch. II, p. 
300 (In the west side of America, ``[t]he insect tribe seems to be more 
numerous'').
---------------------------------------------------------------------------
    The Founding generation knew Indian peoples who lived in 
small, leaderless bands; they also knew Indian peoples 
organized in complex federations and empires. The Europeans and 
the American colonists understood that the aboriginal peoples 
warred with and conquered each other, made agreements and 
alliances, formed confederations and even kingdoms and empires. 
Through all this complex and still evolving history, the Indian 
``peoples'' were called ``Nations'' and ``Tribes.'' The 
Founding generation would have had no difficulty conceiving of 
Indian Tribes who originated in Polynesia, and lived in a 
``Kingdom'' under a ``King.''
    As Jefferson's Notes on the State of Virginia and other 
contemporary works show, the division of the world into 
``European settlers'' and ``Indians'' was not essentially 
racial. The Indians were not a race, they were many peoples, 
thought to share diverse ancestry with peoples all over the 
world. The distinction between European and Native American 
peoples was political. The European settlers (who arrived with 
Royal charters) recognized the ``aboriginal peoples'' as 
separate nations--separate sovereigns with whom they would have 
to deal as one nation to another. Before and after the 
Constitution, the new settlers treated the Indian peoples as 
separate nations, with whom they made war, peace and treaties. 
The treatment of the aboriginal peoples under the Constitution 
was systematically and structurally distinct from the inhumane 
and unendurable treatment accorded to ``slaves.'' This 
distinctive nation-to-nation relationship survived the 
settlement of the West, the Civil War Amendments, and two 
hundred years of Congressional action and judicial 
construction.
    The Articles of Confederation gave the Continental Congress 
power over relations with the Indians only so long as Congress' 
dealings with Indians within a State did not ``infringe'' that 
State's legislative power. This created constant friction over 
where the State's power ended and Congress' power began. The 
sole stated purpose of Indian terms of the new Constitution was 
to eliminate any uncertainty as to Congress' supremacy. The 
Framers intended to grant Congress broad, supreme authority to 
regulate Indian affairs. The two references to ``Indians'' in 
the Constitution generated virtually no debate at any time in 
the Constitutional Convention. That relations with the Indians 
should be one of the federal powers appears to have been 
universally accepted. The Framers sought only to make clear 
that Congress' power here was supreme.
    The Articles had given the Continental Congress ``sole and 
exclusive right and power'' of regulating relations with 
Indians who were ``not members of any of the states, provided 
that the legislative right of state within its own limits be 
not infringed or violated.'' Articles of Confederation, Art. X, 
March 1, 1778 (emphasis added). As Madison explained, this 
language created two major problems. First, no one knew when or 
whether Indians were ``members of states''; second, the grant 
to Congress of ``sole and exclusive power,'' so long as 
Congress did not ``intrud[e] on the internal right'' of States 
was ``utterly incomprehensible.'' The provision had been a 
source of ``frequent perplexity and contention in the federal 
councils.'' \60\ Capitalizing on the uncertainty, several 
states (Georgia, New York and North Carolina) had infringed 
Congress'' power by making their own arrangements with local 
Indians. As a result, during the Constitutional Convention and 
Ratification, Georgia was in armed conflict, and on the verge 
of war, with the powerful Creek Nation.
---------------------------------------------------------------------------
    \60}\James Madison, The Federalist 42, in XIV Documentary History 
of the Ratification of the Constitution (J. Kaminski, ed., 1983), 
XV:431.
---------------------------------------------------------------------------
    The only debate on the issue in the Convention focused on 
the need for federal supremacy over the states. Madison 
objected early on to the ``New Jersey Plan'' on the ground that 
it failed to bar states from encroaching on Congress' power 
over ``transactions with the Indians.'' \61\ In August, Madison 
proposed that Congress be given the power ``[t]o regulate 
affairs with the Indians as well within as without the limits 
of the United States.'' \62\ Madison's proposal was submitted 
to the Committee on Detail without discussion. The Committee on 
Detail recommended that power over Indians be dealt with in the 
Commerce clause, which would provide Congress with power over 
commerce ``with the Indians, within the limits of any State, 
not subject to the laws thereof.'' The proposal provoked no 
debate. \63\ On August 31st, the Convention referred various 
``parts of the Constitution'' (including the Commerce Clause) 
to a ``Committee of eleven,'' including Madison.\64\ Without 
recorded discussion, the Committee recommended that the 
language be simplified to commerce ``with the Indian tribes.'' 
\65\ The Convention accepted the recommendation without debate 
or dissent.\66\
---------------------------------------------------------------------------
    \61\ ``Notes of James Madison,'' June 19, 1787, in The Records of 
the Federal Convention of 1787, at 3:316 (Max Farrand, rev. ed. 1966) 
[hereafter, ``Federal Convention''] (``By the federal articles, 
transactions with the Indians appertain to Congress. Yet in several 
instances, the States have entered into treaties & wars with them''); 
see also, id. At 325-26.
    \62\ 2 Federal Convention, at 321, 324; see also id. At 143 
(Rutledge noted that ``Indian affairs'' should be added to Congress' 
powers).
    \63\ Id. at 367. Similarly, since Indians did not pay tax, the 
proposal to exclude ``Indians not taxed'' from the apportionment clause 
was accepted without discussion.
    \64\ Id. at 481.
    \65\ Id. At 493, 496-97, 503 (emphasis added).
    \66\ See id. at 495. The language appears in the final version. Id. 
at 569, 595.
---------------------------------------------------------------------------
    There is no support for the notion that the reference to 
``Indian tribes'' was intended to narrow Congress' authority 
over Indian affairs. As noted above, the debate in the 
Convention focused solely on making clear the supremacy of 
Congress' power. During the ratification debates, the new 
Constitution was defended on the ground that it gave Congress 
power over ``Indian affairs'' and ``trade with the Indians.'' 
\67\ In the only extended discussion of the issue during 
Ratification, Madison used the phrases ``commerce with the 
Indian tribes'' and ``trade with Indians'' interchangeably; 
Madison explained that the purpose of the new provision was to 
eliminate the limitation on Congress' power over trade with the 
Indians living within the States.\68\ The notion that the 
reference to ``Tribes'' was a limit on Congress' ability to 
deal with the native peoples is without support and is contrary 
to the only expressions of the Framers' original intent. The 
Constitution gave Congress power over the Indian peoples, 
however and wherever it found them.
---------------------------------------------------------------------------
    \67\ James Madison, The Federalist 40, in XIV Documentary History 
of the Ratification of the Constitution (J. Kaminski, ed., 1983), in 
Documentary History, XV: 406 (Constitution represents ``expansion on 
the principles which are found in the articles of confederation,'' 
which gave Congress power over ``trade with the Indians''); Federal 
Farmer, October 8, 1787, in id. At XIV: 24 (under the new Constitution, 
federal government has power over ``all foreign concerns, causes 
arising on the seas, to commerce, imports, armies, navies, Indian 
affairs''); Federal Farmer, October 10, 1787, in id. At 30, 35 (federal 
power over ``foreign concerns, commerce, impost, all causes arising on 
the seas, peace and war, and Indian affairs''). The Federal Farmer 
Letters are considered ``one of the most significant publications of 
the ratification debate.'' Id. At 14.
    \68\ Madison, Federalist 42, in Documentary History XIV: 430-31.
---------------------------------------------------------------------------
    The First Federal Congress treated the Constitution as 
granting broad power to regulate ``trade and intercourse'' with 
``Indians,'' ``Indian tribes,'' ``nations of Indians,'' and 
``Indian country.'' \69\ Congress understood its power to 
``operate immediately on the persons and interests of 
individual citizens.'' \70\ The actions of the new government 
also show that even when the Farmers knew nothing about the 
organization of Indian peoples, they nevertheless intended to 
assert federal power over those peoples. Shortly after taking 
office, President Washington gave instructions to Commissioners 
to negotiate with the Creeks. It was, as noted, the war between 
the Creeks and Georgia that had fostered the apparently 
universal conclusion that the new federal government must be 
given supremacy over Indian affairs. Washington instructed the 
Commissioners to determine the nature of the Creek's political 
divisions and governments, including ``[t]he number of each 
division''; ``[t]he number of Towns in each District''; ``[t]he 
names, Characters and residence of the most influential 
Chiefs--and * * * their grades of influence.'' And, most 
tellingly, the Commissioners were to learn ``[t]he kinds of 
Government (if any) of the Towns, Districts, and Nation.'' \71\ 
Washington, like other Founders, did not know how the Creek 
lived and how (if at all) they governed themselves. But however 
the Indian peoples lived, and however (if at all) they governed 
themselves, they were still Indian peoples and they were still 
subject to the supreme power of the Federal Government over 
Indian Tribes.
---------------------------------------------------------------------------
    \69\ ``An Act to regulate trade and intercourse with the Indian 
tribes,'' July 22, 1790, ch. 33, Sec. 4, 1 Stat. 137, in 1 Doc. Hist. 
of the First Federal Congress, 1789-1791 (De Pauw, ed., 1972) [``First 
Federal Congress''], at 440.
    \70\ Madison, Federalist 40, in Documentary History, XV: 406.
    \71\ George Washington, Instructions to the Commissioners for 
Southern Indians, August 29, 1789, in 2 First Federal Congress, at 207 
(emphasis added).
---------------------------------------------------------------------------
    President Jefferson gave similar instructions to Lewis and 
Clark. When they encountered unknown Indian peoples, the 
explorers were to learn the ``names of the nations''; ``their 
relations with other tribes or nations''; their ``language, 
traditions, monuments''; and the ``peculiarities in their laws, 
customs & dispositions.'' \72\ Like Washington, Jefferson knew 
there was much he and his fellow citizens did not know about 
the ``Indian'' peoples; but he intended to find out and to 
assert federal authority over whatever he found.
---------------------------------------------------------------------------
    \72\ Thomas Jefferson, ``Instructions to Captain Lewis,'' June 20, 
1803, in Jefferson, Writings, supra, at 1126, 1128.
---------------------------------------------------------------------------
    It is inconceivable anyone thought that if Washington's 
Commissioners or Lewis and Clark found a native people living 
without ``chiefs,'' like many Eskimo, or under a King like 
Montezuma or Kamehameha, these people would be beyond Congress' 
power over Indian ``tribes'' or nations.
    Nor did the Framers of the Fourteenth Amendment intend to 
eliminate Congress' special power to adopt legislation singling 
out and favoring Indians; they did not intend to alter the 
nation-to-nation relationship between the United States and the 
Indian peoples created by the Constitution. Indeed, the Framers 
of the Amendment were at pains to make certain that they 
preserved that structure.
    ``Indians'' are expressly singled out for special treatment 
by the text of the Amendment. In order to eliminate the morally 
repugnant language which counted slaves as three-fifths 
persons, the Framers of the Fourteenth Amendment redrafted the 
apportionment clause. The Framers deleted the ``three-fifths 
persons,'' but retained the express exclusion of ``Indians not 
subject to tax'' (Amend. XIV, Sec. 1), because, while they 
intended to wipe out the badges and incidents of slavery, they 
intended to preserve the special relationship between the 
United States and the Indian peoples: Before and after the 
Amendment, Indians were not citizens, they did not vote, they 
did not count forapportionment, and they were subject to 
special legislation in furtherance of Congress' historic trust 
responsibilities.
    The only debate during the drafting and ratification of the 
Fourteenth Amendment was not about whether the special 
relationship with the Indian peoples should be preserved, but 
about how to make certain it was preserved. When one Senator 
suggested that specific reference be made excluding ``Indians'' 
from the citizenship clause, the Senator presenting the clause 
argued this was unnecessary. The Amendment provided citizenship 
only to persons ``within the jurisdiction'' of the United 
States,\73\ and Indian nations were treated like alien peoples 
not fully within the jurisdiction of the government:
---------------------------------------------------------------------------
    \73\ Similar limiting language occurs in the Equal Protection 
Clause.

        in the very Constitution itself there is a provision 
        that Congress shall have power to regulate commerce, 
        not only with foreign nations and among the States, but 
        also with Indian tribes. That clause, in my judgment, 
        presents a full and complete recognition of the 
        national character of the Indian tribes.\74\
---------------------------------------------------------------------------
    \74\ Cong. Globe, 39th Cong., 1st Sess. 2895 (1866).

    Congress debated what language to adopt in order to make 
certain that the special status of the Indian tribes was 
preserved.\75\ There was no support for, or consideration given 
to, eliminating the special relationship between the United 
States and the Indian peoples. The uniform intent was to 
preserve Congress' ability to decide when Indians would be 
granted citizenship, when Indians would be taxed, and when 
Indians would be subject to special legislation.\76\
---------------------------------------------------------------------------
    \75\ See, e.g., Remarks of Sen. Doolittle, Cong. Globe, 39th Cong., 
1st Sess., 2895-2896 (1866) (``[Senator Howard] declares his purpose to 
be not to include Indians within this constitutional amendment. In 
purpose I agree with him. I do not intend to include them. My purpose 
is to exclude them'').
    \76\ Congress expressed the same intent in the Civil Rights Act 
that same year. The Act, granting citizenship to the emancipated 
slaves, specifically excluded ``Indians not taxed.'' Civil Rights Act, 
ch. 31, 14 Stat. 27 (1866).
---------------------------------------------------------------------------
    For two hundred years, the Supreme Court has recognized the 
political distinction the Constitution draws between ``Indian 
tribes'' and all other people. The early opinions of Chief 
Justice John Marshall reflect the original intent of the 
Framers and lay the groundwork for this Court's jurisprudence. 
Marshall wrote that ``[t]he condition of the Indians in 
relation to the United States is perhaps unlike that of any 
other two people in existence.'' Cherokee Nation v. Georgia, 30 
U.S. (5 Pet.), 1, 16 (1831). With deliberate irony, he called 
the Indian tribes ``domestic dependent nations.'' Id. At 17. 
The Indian peoples had surrendered ``their rights to complete 
sovereignty,'' Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 
572-74 (1823), and yet they continued to be ``nations'' that 
governed themselves. See Worcester v. Georgia, 31 U.S. (6 Pet.) 
515, 561 (1832).
    Marshall knew that the constitutional text reflected this 
preexisting nation-to-nation relationship. The Indian Commerce 
Clause, U.S. Const. Art. I., Sec. 3, cl. 8, and the Treaty 
Clause, id. Art. II, Sec. 2, cl. 2, granted Congress broad 
power to regulate Indian affairs. These provisions permitted 
the United States to fulfill its obligations to the dependent 
Indian ``nations'' that were its ``wards.'' Cherokee Nation, 30 
U.S. (5 Pet.) at 17-18; Worcester, 31 U.S. (6 Pet.) at 558-59. 
As ``guardian,'' Congress had both the obligation and the power 
to enact legislation protecting the Indian nations. See 
Worcester, 31 U.S. (6 Pet.) at 560-61; accord Cherokee Nation, 
30 U.S. (5 Pet.) at 17 (``[t]hey look to our government for 
protection; rely upon its kindness and its power; appeal to it 
for relief to their wants'').
    Marshall defined ``Indians'' broadly to include all of the 
``original inhabitants'' or ``natives'' who occupied America 
when it was discovered by ``the great nations of Europe.'' 
Johnson, 21 U.S. (8 Wheat.) at 572-74; Worcester, 31 U.S. (6 
Pet.) at 544 (1832) (Indians are ``those already in possession 
[of land], either as aboriginal occupants, or as occupants by 
virtue of a discovery made before the memory of man'').\77\
---------------------------------------------------------------------------
    \77\ See Johnson, 21 U.S. (8 Wheat.) at 575 (Indians in French 
Canada); id. at 581 (Indians in Nova Scotia); id. at 584-87 (Indians in 
Virginia, Kentucky, the Louisiana Purchase, and Florida). Marshall 
noted the United States had dealt with variously organized ``tribes'' 
or ``confederacies.'' See id. at 546-49.
---------------------------------------------------------------------------
    He also conceived of ``tribes'' in broad, inclusive terms. 
He used ``tribe'' and ``nation'' interchangeably: A ``tribe or 
nation,'' he noted, ``means a people distinct from others''--a 
``distinct community.'' Worcester, 31 U.S. (6 Pet.) at 599, 
561.\78\ Like the Founders, Marshall defined an ``Indian 
tribe'' as nothing more than a community, large or small, or 
descendants of the peoples who inhabited the New World before 
the Europeans.
---------------------------------------------------------------------------
    \78\ See also Cherokee Nation, 30 U.S. (5 Pet.,) at 20 (``an Indian 
tribe or nation within the United States''); Johnson, 21 U.S. (8 
Wheat.) at 590 (``the tribes of Indians inhabiting this country'').
---------------------------------------------------------------------------
    Although the aboriginal ``tribes'' or ``nations'' or 
``peoples'' were defined in part by common ancestry--or, as 
petitioner likes to say, by ``blood''--their constitutional 
significance lay in their separate existence as ``independent 
political communities.'' Id. At 559 (emphasis added). The 
``race'' of Indian peoples was constitutionally irrelevant. 
Native peoples were ``nations,'' id. At 559-60, and the 
relationship between the United States and the Natives 
reflected a political settlement between conquered and 
conquering nations.
    The Supreme Court has kept faith with Marshall's 
conception. The Indian nations have always been defined by 
ancestry and political affiliation. In the Native cultures, the 
two are inextricably intertwined. The Court's definition is 
legal, and the Native American's self-definition is historic, 
religious or cultural; but the two reduce to the same elements: 
``Indians'' are (i) the descendants of aboriginal peoples who 
(ii) belong to some Native American ``people,'' ``nation,'' 
``tribe,'' or ``community,'' as the founding generation 
understood those terms.\79\
---------------------------------------------------------------------------
    \79\ See, e.g., Montoya v. United States, 180 U.S. 261, 266 (1901) 
(``a body of Indians of the same or a similar race, united in a 
community under one leadership or government, and inhabiting a 
particular though sometimes ill-defined territory''); United States v. 
Candelaria, 271 U.S. 432, 442 (1926); see Oklahoma Tax Comm'n v. Sac & 
Fox Nation, 508 U.S. 114, 123 (1993); United States v. Antelope, 430 
U.S. 641, 657 n.7 (1977) (individuals ``anthropologically'' classified 
as Indians may be outside Congress' Indian commerce power if they sever 
relations with tribe).
---------------------------------------------------------------------------
    These interwoven qualifications reflect the Supreme Court's 
consistent understanding that constitutionally relevant Indian 
status, while based in part on ancestry, is a political 
classification. United States v. Antelope, 430 U.S. 641, 646-47 
(1977). It is an individual's membership in a ``political 
community'' of Indians--even a community in the making--and not 
solely his or her racial identity, that brings him or her 
within Congress' broad authority to regulate Indian affairs. 
Id. At 646.
    Nor does the use of blood quantum as part of the formula to 
determine who is and is not a Native American constitute an 
impermissible ``racial'' discrimination. The Supreme Court has 
repeatedly made clear that Indian tribes are the political and 
familial heirs to ``once-sovereign political communities''--not 
``racial groups.'' \80\ The Court has long recognized that a 
tribe's ``right to determine its own membership'' is ``central 
to its existence as an independent political community.'' \81\ 
From time immemorial, Native American communities have defined 
themselves at least in part by family and ancestry.\82\ Kinship 
and ancestry is part of what it means to be an ``Indian.'' 
Indians by ancestry or blood is what the Framers meant by 
``Indians.'' It is what Chief Justice Marshall meant by 
``Indians.'' It is what the Framers of the Fourteenth Amendment 
meant by ``Indians.'' This central conception of ``Indian'' 
identity is woven into the Constitution and the entire body of 
law that has grown up in reliance on that conception.
---------------------------------------------------------------------------
    \80\ Antelope, 430 U.S. At 646; see Fisher v. District Court, 424 
U.S. 382, 389 (1976); Morton v. Mancari, 417 U.S. 535, 553-54 (1974); 
see also Sac & Fox Nation, 508 U.S. At 123; United States v. Mazruie, 
419 U.S. 544, 557 (1975).
    \81\ Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978); 
Cherokee Intermarriage Cases, 203 U.S. 76, 95 (1906); Boff v. Burney, 
168 U.S. 218, 222-23 (1897).
    \82\ See Indian Policy Report at 108-09 (``the tribe, as a 
political institution, has primary responsibility to determine tribal 
membership for purposes of voting in tribal elections . . . and other 
rights arising from tribal membership. Many tribal provisions call for 
one-fourth degree of blood of the particular tribe but tribal 
provisions vary widely. A few tribes require as much as one-half degree 
of tribal blood * * *); accord Felix S. Cohen, ``Handbook of Federal 
Indian Law'' 22-23 & n. 27 (1982 ed.).
---------------------------------------------------------------------------
    Congressional authority to use such traditional 
requirements for tribal membership or benefits has never been 
doubted. In John, the Supreme Court approved Congress' creation 
of an Indian reservation for the benefit of ``Chocktaw Indians 
of one-half or more Indian blood, resident in Mississippi,'' 
437 U.S. At 646. The Court unhesitatingly applied the 
definition of ``Indian'' that appears in the Indian 
Reorganization Act, which has governed Indian Tribes for most 
of this century: `` `all other persons of one-half or more 
Indian blood.' '' Id. At 650 (quoting 25 U.S.C. Sec. 479). 
Similarly, the Alaska Native Claims Settlement Act's use of a 
blood quantum formula as one factor in determining ``Native'' 
status is a valid method of defining those belonging to the 
group eligible for statutory benefits, and the use of the blood 
quantum ``does not detract from the political nature of the 
classification.'' \83\ The use of blood ties is integral to the 
nature of the political deal struck between the conquering 
Europeans and the Native peoples, as they set out to maintain 
partially separate existences while inhabiting the same 
country.
---------------------------------------------------------------------------
    \83\ Alaska Chapter v. Pierce, 694 F.2d 1162, 1168-69 n. 10 (9th 
Cir. 1982) (noting absence of other practicable methods, like tribal 
rolls or proximity to reservations).
---------------------------------------------------------------------------
    The constitutional text and historic relationship gives 
Congress not just the ``right'' to discriminate between Native 
Americans and others, but the responsibility to do so. As the 
Supreme Court has long recognized, from the relationship 
between these former sovereign peoples and the ``superior 
nation'' that conquered them arises ``the power and the duty'' 
of the United States to ``exercis[e] a fostering care and 
protection over all dependent Indian communities within its 
borders. * * *'' \84\ Recently, the Supreme Court acknowledged 
the continued significance of this historic trust 
relationship.\85\
---------------------------------------------------------------------------
    \84\ United States v. Kagama, 118 U.S. 375, 384-85 (1886) (emphasis 
added); see Seminole Nation v. United States, 316 U.S. 286, 296 (1942) 
(the government owes a ``distinctive obligation of trust'' to Indians).
    \85\ See Greater New Orleans Broadcasting Ass'n v. United States, 
119 S. Ct. 1923, 1934 (1999) (recognizing ``special federal interest in 
protecting the welfare of Native Americans'').
---------------------------------------------------------------------------
    The Supreme Court has repeatedly applied the concepts of 
``Indian'' and ``Tribe'' to a wide variety of Native American 
communities, recognizing the constant evolution of Native 
community life and that the questions whether and how to treat 
with these changing communities are assigned by the 
Constitution to Congress. In The Kansas Indians, the Court 
recognized that the Ohio Shawnees remained a ``tribe,'' even 
though tribal property was no longer owned communally and the 
tribe had abandoned Indiancustoms ``owing to the proximity of 
their white neighbors.'' 72 U.S. 737, 755-57 (1866).
    Fifty year later, the Court approved similar tribal 
designation for the Pueblo Indians of New Mexico. After long 
experience under Spanish rule, the Pueblo Indians seemed little 
like the ``savages'' of James Fennimore Cooper. The Pueblo 
Indians lived in villages with organized municipal governments; 
they cultivated the soil and raised livestock; they spoke 
Spanish, worshiped in the Roman Catholic Church; prior to the 
acquisition of New Mexico by the United States, they enjoyed 
full Mexican citizenship. See United States v. Joseph, 94 U.S. 
(4 Otto.) 614, 616 (1877). Nevertheless, the Pueblo Indians 
lived in ``distinctly Indian communities,'' and Congress acted 
properly under the Indian Commerce Clause in determining that 
they were ``dependent communities entitled to its aid and 
protection, like other Indian tribes.'' United States v. 
Sandoval, 231 U.S. 28, 46-47 (1913); United States v. 
Candelaria, 271 U.S. 432, 439, 442-43 (1926). For Native 
American ``communities,'' the Court held that ``the questions 
whether, to what extent, and for what time they shall be 
recognized and dealt with as dependent tribes requiring the 
guardianship and protection of the United States are to be 
determined by Congress. * * *'' Sandoval, 231 U.S. At 46; 
accord Tiger v. Western Inv. Co., 221 U.S. 286, 315 (1911).
    Sixty years later, in United States v. John, the Court 
recognized Congress' authority to create a reservation for the 
benefit of Choctaw Indians in Mississippi, even though (1) they 
were ``merely a remnant of a larger group of Indians'' that had 
moved to Oklahoma; (2) ``federal supervision over them had not 
been continuous''; and (3) they had resided in Mississippi for 
more than a century and had become fully integrated into the 
political and social life of the State. 437 U.S. At 652-53. The 
Mississippi Choctaw were Indians. They has recently organized 
into a distinctly Indian community. The Court therefore 
deferred to Congress' determination that they were a ``tribe 
for the purposes of federal Indian law.'' Id. At 650 n.20; 652-
53.
    Similarly, the Supreme Court has recognized Congress' broad 
authority to deal with individual ``Indians'' \86\ or large 
organizations comprised of numerous ``Tribes.'' \87\ Congress 
may create or recognize new aggregations of Native Americans, 
so long as such legislation is rationally related to the 
fulfillment of Congress' trust obligation to the historic 
Indian peoples.\88\ Congress' treatment of the Alaska Native 
peoples--including the creation of unique regional corporations 
whose shareholders comprise numerous Native Villages--has 
properly been upheld as within Congress' special power over and 
responsibility for the Native American peoples.\89\
---------------------------------------------------------------------------
    \86\ United States v. Holliday, 70 U.S. (3 Wall) 407, 417, (1865) 
(regulation of ``commerce with the Indian tribes means'' regulation of 
``commerce with the individuals composing those tribes''); see Morton 
v. Ruiz, 415 U.S. 199, 230-38 (1974) (addressing the scope of federal 
Indian welfare benefits for individuals living in Indian communities); 
Mancari, 417 U.S. At 551-55.
    \87\ See Cherokee Nation v. Journeycake, 155 U.S. 196 (1894) 
(Delaware Indians entitled to rights of Cherokee Nation which Delawares 
had joined); United States v. Blackfeather, 155 U.S. 218 (1894) (same 
for Shawnee).
    \88\ See John, 437 U.S. At 652-53; Moe v. Confederated Salish & 
Kootenai Tribes, 425 U.S. 463, 480 (1976).
    \89\ Although the Alaska Natives' situation is ``distinctly 
different from that of other American Indians,'' Alaska Chapter, 694 
F.2d at 1168-69 n. 10; see Metlakatla Indian Community v. Egan, 369 
U.S. 45, 50-51 (1962), it is ``well established'' that Althabascan 
Indians, Eskimos, and Aleuts are ``dependent Indian people'' within the 
meaning of the Constitution. Alaska Pacific Fisheries v. United States, 
248 U.S. 78, 87-89 (1918); see also, Pence v. Kleppe, 529 F.2d 135, 
138-39 n.5 (9th Cir. 1976) (``Indian'' means ``the aborigines of 
America'' and includes Eskimos and Aleuts in Alaska); United States v. 
Native Village of Unalakleet, 411 F.2d 1255, 1256-57 (Ct. Cl. 1969) 
(`'Eskimos and Aleuts are Alaskan aborigines'' and, therefore, 
``Indians'').
---------------------------------------------------------------------------

            demograpphics of the native hawaiian population

Housing

    Within the last several years, three recent studies have 
documented the poor housing conditions that confront Native 
Hawaiians who either reside on the Hawaiian home lands or who 
are eligible to reside on the home lands.
    In 1992, the National Commission on American Indian, Alaska 
Native, and Native Hawaiian Housing issued its final report to 
the Congress, ``Building the Future: A Blueprint for Change.'' 
The Commission's study compared housing data for Native 
Hawaiians with housing information for other citizens in the 
State of Hawaii. The commission found that native Hawaiians, 
like American Indians and Alaska Natives, lacked access to 
conventional mortgage lending and home financing because of the 
trust status of the Hawaiian home lands, and that Native 
Hawaiians had the worst housing conditions in the State of 
Hawaii and the highest percentage of homelessness, representing 
over 30 percent of the State's homeless population.
    The Commission concluded that the unique circumstances of 
Native Hawaiians require the enactment of new legislation to 
alleviate and address the severe housing needs of native 
Hawaiians, and recommended that the Congress extend to Native 
Hawaiians the same federal housing assistance programs that are 
provided to American Indians andAlaska Natives under the Low-
Income Rental, Mutual Help, Loan Guarantee Program and Community 
Development Block Grant programs. Subsequently, the Community 
Development Block Grant program authority was amended to address the 
housing needs of Native Hawaiians.
    In 1995, the U.S. Department of Housing and Urban 
Development (HUD) issued a report entitled, ``Housing Problems 
and Needs of Native Hawaiians.'' The HUD report was 
particularly helpful because it compared the data on Native 
Hawaiian housing conditions with housing conditions nationally 
and with the housing conditions of American Indians and Alaska 
Natives.
    The most alarming finding of the HUD report was that Native 
Hawaiians experience the highest percentage of housing problems 
in the nation--49 percent--higher than even that of American 
Indians and Alaska Natives revising on reservations (44 
percent) and substantially higher than that of all U.S. 
households (27 percent). Additionally, the HUD study found that 
the percentage of overcrowding in the Native Hawaiian 
population is 36 percent as compared to 3 percent for all other 
households in the United States.
    Applying the HUD guidelines, 70.8 percent of Native 
Hawaiians who either reside or who are eligible to reside on 
the Hawaiian home lands have incomes which fall below the 
median family income in the United States, and 50 percent of 
those Native Hawaiians have incomes below 30 percent of the 
median family income in the United States.
    Also in 1995, the Hawaii State Department of Hawaiian Home 
Lands published a Beneficiary Needs Study as a result of 
research conducted by an independent research group. This study 
found that among the Native Hawaiian population, the needs of 
Native Hawaiians eligible to reside on the Hawaiian home lands 
are the most severe--with 95 percent of home lands applicants 
(16,000) in need of housing, and with one-half of those 
applicant households facing overcrowding and one-third paying 
more than 30 percent of their income for shelter.

Health status

    Language contained in the 1984 Supplemental Appropriations 
Act, Public Law 98-396, directed the Department of Health and 
Human Services to conduct a comprehensive study of the health 
care needs of Native Hawaiians. The study was conducted under 
the aegis of Region IX of the Department by a consortium of 
health care providers and professionals from the State of 
Hawaii in a predominantly volunteer effort, organized by Alu 
Like, Inc., a Native Hawaiian organization. An island-wide 
conference was held in November of 1985 in Honolulu to provide 
an opportunity for members of the Native Hawaiian community to 
review the study's findings. Recommended changes were 
incorporated in the final report of the Native Hawaiian Health 
Research Consortium, and the study was formally submitted to 
the Department of Health and Human Services in December of 
1985. The Department submitted the report to the Congress on 
July 21, 1986, and the report was referred to the Select 
Committee on Indian Affairs.
    Because the Consortium report's findings as to the health 
status of Native Hawaiians was compared only to other 
populations within the State of Hawaii, the Select Committee 
requested that the Office of Technology Assessment (OTA), an 
independent agency of the Congress, undertake an analysis of 
Native Hawaiian health statistics as they compared to national 
data in other United States populations. Using the same 
population projection model that was employed in OTA's April 
1986 report on ``Indian Health Care to American Indian and 
Alaska Native Populations,'' and based on additional 
information provided by the Department of Health and the Office 
of Hawaiian Affairs of the State of Hawaii, the Office of 
Technology Assessment report contains the following findings:
    The Native Hawaiian population living in Hawaii consists of 
two groups, Hawaiians and part-Hawaiians, who are distinctly 
different in both age distributions and mortality rates. 
Hawaiians comprise less than five percent of the total Native 
Hawaiian population and are much older than the young and 
growing part-Hawaiian populations.
    Overall, Native Hawaiians have a death rate that is thirty-
four percent higher than the death rate for the United States. 
All races, but this composite masks the great differences that 
exist between Hawaiians and part-Hawaiians. Hawaiians have a 
death rate that is 146 percent higher than the U.S. All races 
rate. Part-Hawaiians also have a higher death rate, but only 17 
percent greater. A comparison of age-adjusted death rates for 
Hawaiians and part-Hawaiians reveals the Hawaiians die at a 
rate 110 percent higher than part-Hawaiians, and this pattern 
persists for all except one of the 13 leading causes of death 
that are common to both groups.
    As in the case of the U.S. All races population, Hawaiian 
and part-Hawaiian males have higher death rates than their 
female counterparts. However, when Hawaiian and part-Hawaiian 
males and females are compared to their U.S. All races 
counterparts, females are found to have more excess deaths than 
males. Most of these excess deaths are accounted for by 
diseases of the heart and cancers, with lesser contributions 
from cerebrovascular diseases and diabetes mellitus.
    Diseases of the heart and cancers account for more than 
half of all deaths in the U.S. All races population, and this 
pattern is also found in both the Hawaiian andpart-Hawaiian 
populations, whether grouped by both sexes or by male or female. 
However, Hawaiians and part-Hawaiians have significantly higher death 
rates than their U.S. All races counterparts, with the exception of 
part-Hawaiian males, for whom the death rate from all causes is 
approximately equal to that of U.S. All races males.
    One disease that is particularly pervasive is diabetes 
mellitus, for which even part-Hawaiian males have a death rate 
128 percent higher than the rate for U.S. All races males. 
Overall, Native Hawaiians die from diabetes at a rate that is 
222 percent higher than for the U.S. All races. When compared 
to their U.S. All races counterparts, deaths from diabetes 
mellitus range from 630 percent higher for Hawaiian females and 
538 percent higher for Hawaiian males, to 127 percent higher 
for part-Hawaiian females and 128 percent higher for part-
Hawaiian males.''
    There is thus little doubt that the health status of Native 
Hawaiians is far below that of other U.S. population groups, 
and that in a number of areas, the evidence is compelling that 
Native Hawaiians constitute a population group for whom the 
mortality rate associated with certain disease exceed that for 
other U.S. populations in alarming proportions.
    Native Hawaiians premise the high mortality rates and the 
incidence of disease that far exceed that of other populations 
in the United States upon the breakdown of the Hawaiian culture 
and belief systems, including traditional healing practices, 
that was brought about by western settlement, and the influx of 
western diseases to which the native people of the Hawaiian 
Islands lacked immune systems. Further, Native Hawaiians 
predicate the high incidence of mental illness and emotional 
disorders in the Native Hawaiian population as evidence of the 
cultural isolation and alienation of the native peoples, in a 
statewide population in which they now constitute only 20 
percent. Settlement from both the east and the west have not 
only brought new diseases which decimated the Native Hawaiian 
population, but which devalued the customs and traditions of 
Native Hawaiians, and which eventually resulted in Native 
Hawaiians being prohibited from speaking their native tongue in 
school, and in many instances, at all.
    In 1998, Papa Ola Lokahi, the Native Hawaiian health care 
organization that oversees the work of the Native Hawaiian 
health care systems and is responsible for preparing and 
updating the Native Hawaiian health care master plan, updated 
the health care statistics from the original E Ola Mau report. 
In addition, on an annual basis, Papa Ola Lokahi extrapolates 
the data on Native Hawaiians gathered yearly by the Hawaii 
State Department of Health from the Department's behavioral 
risk assessment and health surveillance survey. The findings 
from those assessments revealed that--
    With respect to cancer, Native Hawaiians have the highest 
cancer mortality rates in the State of Hawaii (231 out of every 
100,000 residents), 45 percent higher than that for the total 
State population. Native Hawaiian males have the highest cancer 
mortality rates in the State of Hawaii for cancers of the lung, 
liver and pancreas and for all cancers combined, and the 
highest years of productive life lost from cancer in the State 
of Hawaii. Native Hawaiian females ranked highest in the State 
of Hawaii for cancers of the lung, liver, pancreas, breast, 
cervix uteri, corpus uteri, stomach, and rectum, and for all 
cancers combines.
    With respect to breast cancer, Native Hawaiians have the 
highest mortality rates in the State of Hawaii, and nationally, 
Native Hawaiians have the third highest mortality rate due to 
breast cancer.
    Native Hawaiians have the highest mortality rates from 
cancer of the cervix and lung cancer in the State of Hawaii, 
and Native Hawaiian males have the second highest mortality 
rates due to prostate cancer in the State.
    For the years 1989 through 1991, Native Hawaiians had the 
highest mortality rate due to diabetes mellitus in the State of 
Hawaii, with full-blood Hawaiians having a mortality rate that 
is 518 percent higher than the rate for the statewide 
population of all other races, and Native Hawaiians who are 
less than full-blood having a mortality rate that is 79 percent 
having than the rate for the statewide population of all other 
races.
    In 1990, Native Hawaiians represented 44 percent of all 
asthma cases in the State of Hawaii for those 18 years of age 
and younger, and 35 percent of all asthma cases reported, and 
in 1992, the Native Hawaiian rate for asthma was 73 percent 
higher than the rate for the total statewide population.
    With respect to heart disease, the death rate for Native 
Hawaiians from heart disease is 66 percent higher than for the 
entire State of Hawaii, and Native Hawaiian males have the 
greatest years of productive life lost in the State of Hawaii. 
The death rate for Native Hawaiians from hypertension is 84 
percent higher than that for the entire State, and the death 
rate from stroke for Native Hawaiians is 13 percent higher than 
for the entire State.
    Native Hawaiians have the lowest life expectancy of all 
population groups in the State of Hawaii. Between 1910 and 
1980, the life expectancy of Native Hawaiians from birth has 
ranged from 5 to 10 years less than that of the overall State 
population average, and the most recent data for 1990 indicates 
that Native Hawaiian life expectancy at birth is approximately 
5 years less than that of the total State population.
    With respect to prenatal care, as of 1996, Native Hawaiian 
women have the highest prevalence of having had no prenatal 
care during their first trimester of pregnancy, representing 44 
percent of all such women statewide. Over 65 percent of the 
referrals to Healthy Start in fiscal year 1996 and 1997 were 
native Hawaiian newborns, and in every region of the State of 
Hawaii, many Native Hawaiian newborns begin life in a 
potentially hazardous circumstance.
    In 1996, 45 percent of the live births to Native Hawaiian 
mothers were infants born to single mothers. Statistics 
indicated that infants born to single mothers have a higher 
risk of low birth weight and infant mortality. Of all low birth 
weight babies born to single mothers in the State of Hawaii, 44 
percent were Native Hawaiians.
    In 1996, Native Hawaiian fetal mortality rates comprised 15 
percent of all fetal deaths for the State of Hawaii. Thirty-two 
percent of all fetal deaths occurring in mothers under the age 
of 18 years were Native Hawaiians, and for mothers 18 through 
24 years, 28 percent were Native Hawaiians.

Education

    In 1981, the Senate instructed the Office of Education to 
submit to Congress a comprehensive report on Native Hawaiian 
education. The report, entitled the ``Native Hawaiian 
Educational Assessment Project,'' was released in 1983 and 
documented that Native Hawaiians scored below parity with 
regard to national norms on standardized achievement tests, 
were disproportionately represented in many negative social and 
physical statistics, indicative of special educational needs, 
and had educational needs that were related to their unique 
cultural situation, such as different learning styles and low 
self-image.
    In recognition of the educational needs of Native 
Hawaiians, in 1988, Congress enacted title IV of the Augustus 
F. Hawkins-Robert T. Stafford Elementary and Secondary School 
Improvement Amendments of 1988 (102 Stat. 130) to authorize and 
develop supplemental educational programs to benefit Native 
Hawaiians.
    In 1993, the Kamehameha Schools/Bishop Estate released a 
10-year update of findings of the Native Hawaiian Educational 
Assessment Project, which found that despite the successes of 
the programs established under title IV of the Augustus F. 
Hawkins-Robert T. Stafford Elementary and Secondary School 
Improvement Amendments of 1988, many of the same educational 
needs still existed for Native Hawaiians. Subsequent reports by 
the Kamehameha Schools Bishop Estate and other organizations 
have generally confirmed those findings. For example--
    (A) educational risk factors begin even before birth for 
many Native Hawaiian children, including--
          (i) late or no prenatal care:
          (ii) high rates of births by native Hawaiian women 
        who are unmarried; and
          (iii) high rates of births to teenage parents;
    (B) Native Hawaiian students continue to begin their school 
experience lagging behind other students in terms of readiness 
factors such as vocabulary test scores;
    (C) Native Hawaiian students continue to score below 
national norms on standardized education achievement tests at 
all grade levels;
    (D) both public and private schools continue to show a 
pattern of lower percentages of Native Hawaiian students in the 
uppermost achievement levels and in gifted and talented 
programs;
    (E) Native Hawaiian students continue to be overrepresented 
among students qualifying for special education programs 
provided to students with learning disabilities, mild mental 
retardation, emotional impairment, and other such disabilities;
    (F) Native Hawaiians continue to be underrepresented in 
institutions of higher education and among adults who have 
completed 4 or more years of college;
    (G) Native Hawaiians continue to be disproportionately 
represented in many negative social and physical statistics, 
indicative of special educational needs, as demonstrated by the 
fact that--
          (i) Native Hawaiian students are more likely to be 
        retained in grade level and to be excessively absent in 
        secondary school;
          (ii) Native Hawaiian students are the highest users 
        of drugs and alcohol in the State of Hawaii; and
          (iii) Native Hawaiian children continue to be 
        disproportionately victimized by child abuse and 
        neglect; and
    (H) Native Hawaiians now comprise over 23 percent of the 
students served by the State of Hawaii Department of Education, 
and there are and will continue to be geographically rural, 
isolated areas with a high Native Hawaiian population density.
    In the 1998 National Assessment of Educational Progress, 
Hawaiian fourth-graders ranked 39th among groups of students 
from 39 States and the District of Columbia in reading. Given 
that Hawaiian students rank among the lowest groups of students 
nationally in reading, and that Native Hawaiian students rank 
the lowest among Hawaiian students in reading, it is imperative 
that greater focus be placed on beginning reading and early 
education and literacy in Hawaii.
    The findings of S. 2899 focus on the history of Native 
Hawaiians and United States policy as it relates to Native 
Hawaiians, including the enactment of over 160 public laws to 
address the conditions of Native Hawaiians. S. 2899 provides a 
process for the reorganization of a Native Hawaiian government 
and recognition of the Native Hawaiian government by the United 
States for purposes of carrying on a government-to-government 
relationship.
    The bill authorizes a roll to be developed of those Native 
Hawaiians who wish to participate in the reorganization of a 
Native Hawaiian government. A commission appointed by the 
Secretary of the Interior would certify that those on the roll 
meet the definition of ``Native Hawaiian'' that is contained in 
S. 2899. Upon the commission's certification, the commission 
submits the roll to the Interior Secretary for his 
certification that the roll is consistent with Federal law, and 
thereafter the Secretary is authorized to published the final 
roll. A process for appeal for anyone who believes that they 
have been wrongfully excluded from the roll, or to challenge 
the inclusion of the name of a person on the roll who does not 
meet the definition of Native Hawaiian is also authorized.
    S. 2899 authorizes the formation of a Native Hawaiian 
Interim Governing Council through the election of 
representative by the adult members listed on the roll. The 
first responsibility of the Council is to conduct a referendum 
of all adult members listed on the roll to determine the 
elements of organic governing documents for the Native Hawaiian 
government. Thereafter, the Council is authorized to develop 
organic governing documents that would be subject to 
ratification through an election in which the adult members 
listed on the roll would vote. Once the organic governing 
documents are ratified, and election of officers to the Native 
Hawaiian government would be held. That election and those who 
would be eligible to participate in such an election are to be 
determined by the organic governing documents.
    Upon the ratification of the organic governing documents 
and the election of officers to the Native Hawaiian government, 
the governing documents are to be submitted to the Secretary of 
the Interior for certification that they are consistent with 
Federal law and the special trust relationship between the 
United States and native people. The Secretary is also 
authorized to certify that the governing documents provide for 
the protection of the civil rights of the citizens of the 
Native Hawaiian government and any others who would come within 
the jurisdiction of the government. Once the Secretary has made 
this certification, the bill authority for the United States' 
recognition of the Native Hawaiian government. Upon 
recognition, the definition of ``Native Hawaiian'' for purposes 
of Federal law, would be as provided for in the organic 
governing documents of the Native Hawaiian government.
    S. 2899 also provides authority for the establishment of a 
United States Office of Native Hawaiian Affairs within the 
Office of the Secretary of the U.S. Department of the Interior. 
The Office is to be the principal entity through which the 
United States will carry on relations with the Native Hawaiian 
people unit a Native Hawaiian government is formed. The Office 
is authorized to enter into contracts or make grants to 
facilitate the development of the roll referenced above and to 
assist in the elections that would be conducted by the Native 
Hawaiian Interim Governing Council, if the Office is called 
upon to provide such assistance. The Office would also serve as 
the primary agent of ongoing efforts to effect the 
reconciliation that is authorized in the Apology Resolution. 
Together with the Office of Tribal Justice in the U.S. 
Department of Justice, the two offices would serve as lead 
agencies for the work of a Native Hawaiian Interagency Task 
Force that is authorized to be established in S. 2899.

               Indian and Native Hawaiian Program Funding

    As referenced above, since 1910, the Congress has enacted 
over 160 statutes designed to address the conditions of Native 
Hawaiians. Appropriations for Native Hawaiian programs have 
always been separately secured and have had no impact on 
program funding for American Indians or Alaska Natives. 
Consistent with this practice, S. 2899 provides authority for a 
separate and distinct appropriation that does not impact in any 
way on existing authorizations for American Indian and Alaska 
Native programs. It is also important to note that Federal 
programs addressing health care, education, job training, 
graves protection, arts and culture, and language preservation 
for Native Hawaiians are already in place. Accordingly, new 
impacts on the Federal budget that might otherwise be 
anticipated with the Federal recognition of a native government 
will not be forthcoming as a result of the reorganization of 
the Native Hawaiian government.S. 2899 does authorize 
appropriations for the establishment of the U.S. Office of Native 
Hawaiian within the Department of the Interior, and for a three-year 
period for grants to assist Native Hawaiians in reorganizing a Native 
government, but the costs associated with these activities are not 
expected to be significant.

                                 gaming

    Some have questioned whether the reorganization of a Native 
Hawaiian government might have implications for gaming that is 
conducted under the authority of the Indian Gaming Regulatory 
Act.
    The Indian Gaming Regulatory Act authorizes Indian tribal 
governments to conduct gaming on Indian reservations and lands 
held in trust by the United States for Indian tribes. The scope 
of gaming that can be conducted under the Act is determined by 
the law of the state in which the Indian lands are located. The 
U.S. Supreme Court has held that state laws which criminally 
prohibit certain forms of gaming apply on Indian lands.
    There are no Indian tribes in the State of Hawaii, nor are 
there any Indian reservations or Indian lands. Hawaii is one of 
only two states in the Union (the other is Utah) that 
criminally prohibit all forms of gaming. Accordingly, a 
reorganized Native Hawaiian government could not conduct any 
form of gaming in the State of Hawaii.

                   resolutions of support for s. 2899

    The resolution of the Hawaii State Legislature in the form 
of House Concurrent Resolution No. 41, is set forth below.
    In addition, the resolution of the Board of Directors of 
the Alaska Federation of Natives, Inc., in the form of Board 
Resolution 00-05, adopted on May 8, 2000 is set forth below.
    The National Congress of American Indians adopted two 
resolutions--Resolution JUN-00-032, adopted at the Congress' 
2000 Mid-Year Session, and Resolution PSC-99-042, adopted at 
the Congress' 1999 Annual Session--both of which are set forth 
below.
    The resolution of the Japanese American Citizens League, 
adopted at the League's 36th Biennial National Convention, is 
set forth below.


                 SECTION-BY-SECTION ANALYSIS OF S. 2899

Section 1. Findings

    This section set forth the Congress' findings. Findings (1) 
through 4 reflect Congress' recognition of Native Hawaiians as 
the native people of the United States and the State of Hawaii. 
Findings (5) through (7) reflect Congress's determination of 
the need to address conditions of Native Hawaiians through the 
Hawaiian Homes Commission Act of 1920. Findings (8) and (9) 
reflect Congress' establishment of the ceded lands trust as a 
condition of statehood for the State of Hawaii. Findings (9) 
through (11) reflect the importance of the Hawaiian Home Lands 
and Ceded Lands to Native Hawaiians as a foundation for the 
Native Hawaiian community for the survival of the Native 
Hawaiian people. Findings (12) through (14) reflect the effect 
of the Apology Resolution. Findings (15) through (19) reflect 
the Native Hawaiian community as a ``distinctly'' native 
community. Finding (20) reflects the legal position of the 
United States before the U.S. Supreme Court in the case of Rice 
v. Cayetano. Findings (21) and (22) reaffirm the special trust 
relationship between the Native Hawaiian people and the United 
States.

Section 2. Definitions

    This section sets forth definitions of terms used in the 
bill. Defined terms are Aboriginal, Indigenous, Native People; 
Adult Members; Apology Resolution; Ceded Lands; Commission; 
Indigenous, Native People; Native Hawaiian; Native Hawaiian 
Government; Native Hawaiian Interim Governing Council; Roll; 
Secretary; and Task Force.
    Native Hawaiian--It is the intent of the Committee that the 
definition of Native Hawaiian, for the purposes of membership 
in the government, be determined by Native Hawaiians. The 
Committee recognizes the longstanding issues surrounding the 
definition of ``Native Hawaiian'' and acknowledges the Native 
Hawaiian community's desire to address the definition of Native 
Hawaiian. The legislation provides for this flexibility by 
first identifying those Native Hawaiians eligible to 
participate in the reorganization of the Native Hawaiian 
government. The legislation further provides that once the 
Native Hawaiian government addresses this issue in its organic 
governing documents, that the definition established by the 
Native Hawaiian governments will serve as the definition of 
Native Hawaiian for purposes of this Federal law.
    Roll--It is the intent of the Committee that the roll be 
used for the purposes of identifying those individuals who meet 
the definition of Native Hawaiian as defined in section 7(a)(1) 
to participate in the reorganization of the Native Hawaiian 
government. Once the roll has been established, the members on 
the roll have the flexibility to retain the roll should they 
determine it necessary for additional purpose.

Section 3. The United States policy and purpose

    This section reaffirms that Native Hawaiians are an 
aboriginal, indigenous, native people with whom the United 
States has a trust relationship. It also affirms that Native 
Hawaiians have the right to self-determination and that it is 
Congress' intent to provide a process for the reorganization of 
a Native Hawaiian government and for Federal recognition of the 
Native Hawaiian government for purposes of continuing a 
government to government relationship.

Section 4. Establishment of the United States Office of Native Hawaiian 
        Affairs

    This provision provides authority for the establishment of 
the United States Office for Native Hawaiian Affairs within the 
Office of Secretary of the Department of Interior. This Office 
is charged with: (1) effectuating and coordinating the special 
trust relationship between the Native Hawaiian people and the 
United States; (2) conducting meaningful, regular, and 
appropriate consultation with the Native Hawaiian people 
regarding any action that may affect traditional or current 
practices and matters that significantly or uniquely impact 
Native Hawaiian resources, rights, or lands; (3) consulting 
with the Native Hawaiian Interagency Task Force, other Federal 
agencies, and with the State of Hawaii on policies, practices, 
and proposed actions affecting Native Hawaiian resources, 
rights, or lands; (4) preparing and submitting to the Senate 
Committee on Indian Affairs, Senate Committee on Energy and 
Natural Resources, and House Resources Committee an annual 
report detailing the Interagency Task Force's activities 
regarding the reconciliation process, consultation with the 
Native Hawaiian people, and recommendations of necessary 
changes to existing Federal statutes; (5) continuing the 
process of reconciliation with the Native Hawaiian people; and 
(6) assisting the Native Hawaiian people in facilitating a 
process for self-determination, the organization of a Native 
Hawaiian Interim Governing Council, and recognition of the 
Native Hawaiian government. Once the Native Hawaiian government 
is formed, the Native Hawaiian government, rather than 
individual Native Hawaiians.
    The Office is also authorized to enter into contracts and 
grants for the purposes of the activities authorized in section 
7 for a period of 3 years.
    It is the intent of the Committee that the United States 
Office for Native Hawaiian Affairs serve as a liaison between 
the Native Hawaiian people and the United States forthe 
purposes of assisting with the reorganization of the Native Hawaiian 
government, continuing the reconciliation process, and ensuring proper 
consultation with the Native Hawaiian people for any Federal policy 
impacting Native Hawaiians. The Committee does not intend for the 
United States Office for Native Hawaiian Affairs to assume the 
responsibility or authority for any of the Federal programs established 
to address the conditions of Native Hawaiians. All Federal programs 
established and administered by Federal agencies will remain with those 
agencies.

Section 5. Designation of Department of Justice representative

    This section requires the United States Attorney General to 
designate an appropriate official within the Department of 
Justice to assist the U.S. Office of Native Hawaiian Affairs in 
implementing and protecting the rights of Native Hawaiians and 
their political, legal, and trust relationship with the United 
States and, upon recognition of the Native Hawaiian government, 
the rights of the Native Hawaiian government and its political, 
legal, and trust relationship with the United States.

Section 6. Native Hawaiian interagency task force

    This section authorizes the establishment of an Interagency 
Task Force composed of officials from each Federal agency, to 
be designated by the President, a representative from the U.S. 
Office of Native Hawaiian Affairs, and a representative from 
the Executive Office of the President. The Departments of 
Justice and Interior will serve as the lead agencies of the 
Task Force, and the Attorney General's designee and the head of 
the U.S. Office of Native Hawaiian Affairs will serve as co-
chairs. The primary responsibility of the Task Force to 
coordinate Federal policies or acts that affect Native 
Hawaiians or impact Native Hawaiian resources, rights, or 
lands. The Task Force is also charged with assuring that each 
Federal agency develop a Native Hawaiian consultation policy 
and participate in the development of the report to Congress.

Section 7. Process for the development of a roll for the organization 
        of a Native Hawaiian interim governing council, for the 
        organization of a Native Hawaiian interim governing council and 
        a Native Hawaiian government, and for the Federal recognition 
        of the Native Hawaiian government

    a. Roll. This provision authorizes the U.S. Office of 
Native Hawaiian Affairs to assist the adult members of the 
Native Hawaiian community who wish to participate in the 
reorganization of a Native Hawaiian government in preparing a 
roll for the purpose of organizating a Native Hawaiian Interim 
Governing Council. The roll shall include the names of the 
adult members of the Native Hawaiian community who wish to 
voluntarily become citizens of a Native Hawaiian government and 
who are the lineal descendants of the aboriginal, indigenous, 
native people who resided in the islands that now comprise the 
State of Hawaii on or before January 1, 1893, and who occupied 
and exercised sovereignty in the Hawaiian archipelago, 
including all Native Hawaiians who were eligible in 1921 for 
the programs authorized by the Hawaiian Homes Commission Act 
and their lineal descendants. The roll may also include the 
names of the children of the adult members who wish to 
participate in the reorganization of a Native Hawaiian 
government. Participation in the reorganization of the 
government, however, is limited to the adult members listed on 
the roll.
    A nine-member Commission is authorized to be established. 
The Commission is to be made up of Native Hawaiians appointed 
by the Secretary. In appointing members of the Commission, the 
Secretary may choose such members from among 5 suggested 
candidates submitted by the Majority and Minority Leaders of 
the Senate and 4 suggested candidates submitted by the Speaker 
of the House of Representatives and the Minority Leader of the 
House of Representatives. The Secretary may appoint members who 
are not on either list submitted by the Senate or the House of 
Representatives. In making appointments to the Commission, the 
Committee would encourage the Secretary to select Native 
Hawaiians who are either skilled in the translation of legal 
and genealogical documents that are written in the Native 
Hawaiian language, or who are recognized as having expertise in 
the research and documentation of Native Hawaiian genealogies, 
or who are generally recognized and accepted as genealogical 
experts by the Native Hawaiian community. Any vacancy on the 
Commission shall not affect its powers and shall be filled in 
the same manner as the original appointment.
    The Commission is charged with certifying that the adult 
members of the Native Hawaiian community who wish to be listed 
on the roll and participate in the organization of the Native 
Hawaiian Interim Governing Council (Council) meet the 
definition of ``Native Hawaiian'' as established in this Act.
    The Secretary shall certify that the roll is consistent 
with applicable federal law. If the Secretary fails to certify 
the roll within 90 days, the roll shall be deemed certified by 
the Secretary and the Commission shall publish the final roll. 
The Secretary is also authorized to establish an appeal 
mechanism to address the exclusion of the name of a person who 
meets the definition of Native Hawaiian or to address a 
challenge to the inclusion of the name of a person on the roll 
on the grounds that the person does not meet the definition of 
Native Hawaiian.
    After certifying that the roll is consistent with 
applicable Federal law, the Secretary shall publish the final 
roll. The roll may be published even though appeals are 
pending,however, the Secretary must update the final roll upon 
final disposition of any appeal. The final roll shall serve as the 
basis for the eligibility of adult members to participate in all 
referenda and elections associated with the organization of the Council 
and the Native Hawaiian government.
    b. Recognition of Rights. This provision recognizes the 
right of Native Hawaiians to organize for their common welfare 
and to adopt appropriate organic governing documents.
    c. Organization of the Native Hawaiian interim Governing 
Council. This subsection authorizes the adult members of the 
roll to develop the criteria for candidates and the structure 
of the Council. The committee intends for the adult members of 
the roll to determine how the Native Hawaiian Interim Governing 
Council should be structured. The Committee anticipates that 
the adult members may consider a number of methods of 
representation which could include representation by island, 
district, ahupua`a, family, or any other form.
    Upon request of the adult members listed on the roll, the 
U.S. Office of Native Hawaiian Affairs is authorized to provide 
assistance in the conduct of an election by secret ballot to 
elect the membership of the Council. The provision is intended 
to allow the adult members the flexibility to hold the election 
themselves or to request the assistance of the U.S. Office of 
Native Hawaiian Affairs.
    The Council is authorized to represent those on the roll in 
implementing the Act and is to have no power other than those 
authorized by S. 2899. The Council is authorized to enter into 
contracts or grants to carry out is activities, to assist in 
the conduct of a referendum on the Native Hawaiian government's 
form, powers, and the proposed organic governing documents. 
Thereafter, the Council is authorized to conduct an election 
for the purpose of ratifying the organic governing documents 
and, upon ratification of the organic governing documents, to 
elect the Native Hawaiian government officers.
    d. Recognition of the Native Hawaiian Government. The duly 
elected officers of the Native Hawaiian government shall submit 
the organic government documents to the Secretary for 
certification that the organic governing documents were adopted 
by a majority vote of those eligible to vote; are consistent 
with applicable Federal law and the special trust relationship 
between the United States and Native Hawaiians; provide for the 
exercise of those governmental authorities that are recognized 
by the United States as the powers and authorities that are 
exercised by other governments representing the inidgenous, 
native people of the United States; provides for the protection 
of the civil rights of the citizens of the Native Hawaiian 
government and those subject to the authority of the Native 
Hawaiian government; prevents the sale, disposition, lease or 
encumbrance of lands, interests in lands, or other assets of 
the Native Hawaiian government without the consent of the 
Native Hawaiian government; sets forth the citizenship criteria 
of the Native Hawaiian government; and authorizes the Native 
Hawaiian government to negotiate with Federal, State, and local 
governments. The organic governing documents will be deemed 
certified if the Secretary fails to certify them within 90 days 
of the date the Native Hawaiian government submitted the 
documents.
    If the Secretary determines that any provision of the 
organic governing documents does not comply with applicable 
Federal law, the Secretary shall return the organic governing 
documents to the Native Hawaiian government identifying each 
provision that is inconsistent with applicable Federal law and 
providing a justification for each finding that a provision is 
inconsistent with applicable Federal law. The Native Hawaiian 
government is authorized to amend the organic governing 
documents to assure their compliance with applicable Federal 
law. After the organic governing documents are amended, the 
Native Hawaiian government may resubmit the organic governing 
documents to the Secretary for certification.
    e. Federal Recognition. This provision specifies that upon 
election of the Native Hawaiian government officers and the 
certifications (or deemed certifications) by the Secretary, 
Federal recognition is extended to the Native Hawaiian 
government. This provision also provides that nothing contained 
in the Act shall diminish, alter or amended any rights or 
privileges the Native Hawaiian people enjoy that are not 
inconsistent with the provisions of the Act.

Section 8. Authorization of appropriations

    This section authorizes the appropriation of such sums as 
may be necessary to carry out the activities authorized.

Section 9. Reaffirmation of delegation of Federal Authority; 
        negotiations

    This section reaffirms the United States' delegation of 
authority to the State of Hawaii in the Admissions Act to 
address the conditions of Native Hawaiians. Upon Federal 
recognition of the Native Hawaiian government, the United 
States is authorized to negotiate with the State of Hawaii and 
the Native Hawaiian government regarding the transfer to the 
Native Hawaiian government of lands, resources and assets 
dedicated to Native Hawaiian use under existing law.

Section 10. Disclaimer

    This section provides that nothing in this Act is intended 
to serve as a settlement of any claim against the United 
States, or affects the rights of the Native Hawaiian people 
under international law.

Section 11. Regulations

    This section authorizes the Secretary to make such rules 
and regulations and to delegate such authority, as the 
Secretary deems necessary.

Section 12. Severability Clause

    This section provides that should any section or provision 
of this Act be deemed invalid, the remaining sections, 
provisions, and amendments shall continue in full force and 
effect.

                          legislative history

    S. 2899 was introduced in the Senate on July 20, 2000 by 
Senators Akaka and Inouye, and was referred to the Committee on 
Indian Affairs. A companion measure, H.R. 4904, was introduced 
by Congressman Abercrombie on July 20, 2000, and was referred 
to the Committee on Resources. Five days of hearings were held 
on S. 2899 and H.R. 4904 in joint hearings of the House 
Resources Committee and the Senate Indian Affairs Committee in 
Hawaii from Monday, August 28th, 2000 through Friday, September 
1st, 2000. An additional hearing on S. 2899 was held in 
Washington, D.C. on September 13, 2000. S. 2899 was ordered 
favorably reported to the full Senate by the Senate Committee 
on Indian Affairs on September 13, 2000. H.R. 4904 was 
favorably reported to the House of Representatives by the House 
Resources Committee on September 20, 2000.

            committee recommendation and tabulation of vote

    On September 13, 2000, the Committee on Indian Affairs, in 
an open business session, adopted an amendment in the nature of 
a substitute to S. 2899 by voice vote and ordered the bill, as 
amended, reported favorably to the Senate.

                   cost and budgetary considerations

    The cost estimate for S. 2899, as calculated by the 
Congressional Budget Office, is set forth below:

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 25, 2000.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2899, a bill to 
express the policy of the United States regarding the United 
States' relationship with Native Hawaiians, to provide a 
process for the reorganization of a Native Hawaiian government 
and the recognition by the United States of the Native Hawaiian 
government, and for other purposes.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Lanette J. 
Keith (for federal costs) and Marjorie Miller (for the impact 
on state, local, and tribal governments).
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

               CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

S. 2899--A bill to express the policy of the United States regarding 
        the United States' relationship with Native Hawaiians, to 
        provide a process for the reorganization of a Native Hawaiian 
        government and the recognition by the United States of the 
        Native Hawaiian government, and for other purposes

    S. 2899 would establish a process for a Native Hawaiian 
government to be constituted and recognized by the federal 
government. CBO estimates that implementing S. 2899 would cost 
$5 million over the 2001-2003 period, assuming the 
appropriation of the necessary amounts. The bill would not 
affect direct spending or receipts, so pay-as-you-go procedures 
would not apply. S. 2899 contains no intergovernmental or 
private-sector mandates as defined in the Unfunded Mandates 
Reform Act and would impose no costs on state, local, or tribal 
governments. Enactment of this legislation could lead to the 
creation of a new government to represent native Hawaiians. The 
transfer of any lands or other assets to this new government, 
including lands now controlled by the state of Hawaii, would be 
the subject of future negotiations. Similarly, federal payments 
to native Hawaiians following recognition of a Native Hawaiian 
government would depend on future legislation.
    The bill would establish the United States Office for 
Native Hawaiian Affairs within the Department of the Interior 
(DOI) to coordinate services to native Hawaiians, as defined in 
the bill. The bill would authorize the office to assist in 
developing a list of individuals who meet that definition. 
Based on information from DOI, CBO estimates that this work 
would cost $2 million over the 2001-2003 period. In addition, 
the bill would establish a commission to verify that those 
listed meet the bill's criteria for native Hawaiians. Based on 
information for DOI, we estimate that commission costs would 
total about $1 million each year over the three-year period.
    On September 25, 2000, CBO transmitted a cost estimate for 
H.R. 4904, as ordered reported by the House Committee on 
Resources on September 20, 2000. These two bills are identical, 
as are our cost estimates.
    The CBO staff contacts are Lanette J. Keith (for federal 
costs) and Marjorie Miller (for the impact on state, local, and 
tribal governments). This estimate was approved by Peter H. 
Fontaine, Deputy Assistant Director for Budget Analysis.

                    REGULATORY AND PAPERWORK IMPACT

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires that each report accompanying a bill evaluate 
the regulatory and paperwork impact that would be incurred in 
implementing the legislation. S. 2899 authorizes the Secretary 
of the Interior to promulgate rules and regulations to carry 
out the provisions of the Act, thus the enactment of S. 2899 
will have an impact on the Department's regulations and 
paperwork.

                        EXECUTIVE COMMUNICATIONS

    The testimony of the representatives of the Departments of 
Justice and Interior on S. 2899 are set forth below:

Statement of Robert T. Anderson, Counselor to the Secretary, Department 
                            of the Interior


                              introduction


    Good morning, Mr. Chairman and members of both Committees. 
I am Robert Anderson, Counselor to the Secretary of the 
Department of the Interior. It is my pleasure to be here today 
to present the Department's views on S. 2899 and H.R. 4904.
    Mr. Chairman, the Administration supports the purposes of 
S. 2899 and H.R. 4904 that are before both Committees. The 
Department believes that the Bills appropriately affirm and 
acknowledge the political relationship between the United 
States and Native Hawaiians. Our recommended change is set out 
below, along with our general comments.


                               background


    The Native Hawaiian people are the aboriginal, indigenous, 
native people of Hawaii. They have lived in Hawai'i for over 
1,000 years, and their culture was based on a well developed 
system of agriculture and acquaculture. Native Hawaiians made 
remarkable artistic, cultural, and scientific advances, 
including amazing feats of navigation, prior to the first 
contact with Europeans in 1778. In 1810, King Kamehameha I 
established the unified Kingdom of Hawai'i to govern the Native 
Hawaiian people. Over the next 60 years, the United States 
entered into several treaties of peace, friendship and commerce 
with the kingdom of Hawaii, recognizing its status as an 
independent sovereign.
    During the 1880s, western influence over the Kingdom of 
Hawai'i increased, and in 1893, as Queen Lili'uokalani sought 
to restore the full authority of the Native Hawaiian monarchy, 
the American and European plantation owners acting in concert 
with the U.S. Minister and military forces overthrew the 
Kingdom. The Provisional Republic of Hawaii, formed by the 
plantation owners, then seized the Crown and public lands of 
the Kingdom of Hawaii, including one-third of Hawai'i that was 
impressed with a trust for the Native Hawaiian common people. 
Although President Cleveland initially opposed the overthrow, 
President McKinley supported the call of the Republic of 
Hawai'i for annexation. Congress annexed Hawai'i in 1898, 
without the consent of the Native Hawaiian people. As a result 
of the overthrow, laws suppressing Hawaiian culture and 
language, and displacement from the land, the Native Hawaiian 
people suffered mortality, disease, economic deprivation, 
social distress, and population decline.
    The Territory of Hawai'i recognized that the conditions of 
the Native Hawaiian people continued to deteriorate, and 
members of the territorial legislature proposed that Congress 
enact a measure to rehabilitate the Native Hawaiian people by 
returning them to the land and promoting agriculture under 
Federal protections. In congressional hearings, the Secretary 
of the Interior acknowledged that the Native Hawaiian people 
were suffering a decline and that the Federal Government had a 
special responsibility to promote their welfare. In 1920, 
relying in part on the precedent of the General Allotment Act, 
which provided individual lands for American Indians under 
Federal protections, Congress enacted the Hawaiian Homes 
Commission Act to rehabilitate the Native Hawaiian people by 
setting aside for Native Hawaiian settlement and agriculture 
use 200,000 acres of the ``ceded'' lands, i.e., the former 
Crown and public lands of the Kingdom of Hawaii. Later, in the 
State Admissions Act, Congress set aside the balance of the 
ceded lands, not reserved for Federal purposes, in a public 
trust to be held and administered by the State for five 
purposes, including the betterment of the Native Hawaiians.
    The Hawaiian Homeland settlements throughout the Hawaiian 
Islands assisted the Native Hawaiian people in maintaining 
their historic ties to the land and distinctly native 
settlements. In addition, through Native Hawaiian social and 
political institutions, such as the Native Hawaiian civil 
clubs, the Kamehameha schools, and the Lili'uokalani Hawaiian 
Children's Foundation, the Native Hawaiian community has 
maintained its distinct character as an aboriginal, native 
people. In recent years, overcoming a legacy of cultural 
suppression, Native Hawaiians have revitalized their language, 
culture, traditions, and aspiration for self-determination 
through Native Hawaiian language immersion programs, cultural 
education programs, restoration of traditional agriculture and 
aquaculture, creation of new social institutions and quasi-
governmental service providers and the Native Hawaiian 
sovereignty movement, among other things. And, Native Hawaiians 
have made clear their desire for self-determination, i.e., 
increased Native Hawaiian control of Native Hawaiian affairs, 
resources, and lands.
    Nevertheless, the Native Hawaiian people, as a native 
community, continue to suffer from economic deprivation, low 
educational attainment, poor health status, substandard 
housing, and social dislocation. In response, since the early 
1970s, Congress has enacted statutes that recognize these 
problems among Native Hawaiians and establish programs to 
address them. For example, the Native Hawaiian Education Act 
refers to studies that show that Native Hawaiian students face 
educational risk factors start before birth, stemming from 
substandard prenatal care and high rates of teen births, and 
continue to score below national average at all grade levels. 
20 U.S.C. sec. 7902. This Act provides funding to Native 
Hawaiian schools and education councils to promote special 
education programs for Native Hawaiian students. The Native 
Hawaiian Health Care Act finds that ``the unmet health needs of 
the Native Hawaiian people are severe and the health status of 
Native Hawaiians continues to be far below that of the general 
population of the United States.'' 42 U.S.C. sec. 11701. This 
Act provides funding to Native Hawaiian health care providers 
to provide preventative health care to the Native Hawaiian 
community. The Native Hawaiian Housing Bill, S. 225, finds that 
Native Hawaiians face the most severe housing shortage of any 
group in the Nation, and if enacted, would provide low income 
housing to Native Hawaiians on Hawaiian Home lands.


          the reconciliation process under public law 103-150


    Against this background in 1993, Congress enacted Public 
Law 103-150, the Native Hawaiian Apology Resolution, which 
acknowledged the role of United States' officers in the 
overthrow of the Kingdom of Hawai'i and called on the Executive 
Branch to undertake special efforts to promote reconciliation 
between the United States and the Native Hawaiian people. The 
passage of the Apology Resolution was the first step in this 
reconciliation process.
    In March of 1999, Senator Daniel K. Akaka asked Secretary 
of the Interior Bruce Rabbit and Attorney General Janet Reno to 
designate officials to represent their respective Departments 
in efforts of reconciliation between the Federal Government and 
Native Hawaiians. Secretary Babbitt designated John Berry, 
Assistant Secretary, Policy Management and Budget, for the 
Department of the Interior, and Attorney General Reno 
designated Mark Van Norman, Director, Office of Tribal Justice, 
for the Department of Justice, to take the next steps in the 
reconciliation process.
    Informal meetings was held on O'ahu in August 1999, and 
public consultations with Mr. Berry and Mr. Van Norman 
commenced in December 1999, when meetings with the Native 
Hawaiian community were held on Kaua'i, Maui, Moloka'i, and 
Lana'i, and in Hilo, Waimea and Kona on Hawai'i. These public 
consultations ended in two days of formal hearings held on 
O'ahu. Oliver forty hours of public testimony was received. 
During their visit to Hawai'i, Mr. Berry and Mr. Van Norman 
also visited Native Hawaiian homestead communities, taro farms, 
Hawaiian language immersion schools, and Native Hawaiian fish 
ponds in the process of being restored, and observed numerous 
programs designed to benefit Native Hawaiians. Throughout the 
meetings, Native Hawaiians repeatedly expressed the desire for 
increased self-determination concerning Native Hawaiian 
affairs, resources, and lands. As a result of the process, the 
Departments recently issued a report outlining recommendations 
with respect to the continuation of the reconciliation process, 
including federal recognition, self-determination, and self-
governance, to help the Native Hawaiians provide a better 
future for their members and community. The Report will be 
finalized after the public has had an opportunity to comment.
    Native Hawaiians also have called upon the United States to 
assist them in improving economic opportunities educational 
attainment, health status, and housing. Specifically, the 
Native Hawaiian people requested that the Administration 
support and Congress enact S. 225, the Native Hawaiian Housing 
Act and reauthorize the Native Hawaiian Education Act and the 
Native Hawaiian Health Care Act.
    Within the framework of Federal law, there are established 
precedents to accommodate the Native Hawaiian people's desire 
for increased self-determination. American Indian tribes and 
Alaska Native villages exercise self-determination over native 
institutions, such as schools and health care institutions; 
over native affairs, such as language and cultural 
preservation; and over native lands and resources. They do so 
through recognized tribal governments and federally chartered 
native corporations in the context of the Federal policy of 
recognizing the unique government-to-government and special 
relationships that exist between the United States and its 
native peoples. American Indian and Alaska Native peoples value 
self-determination as an avenue for addressing their 
communities, economic, educational, health, and social needs. 
Indeed, American Indian and Alaska Native peoples view the 
Federal Indian self-determination policy as recognizing their 
legitimate aspiration to transmit their distinct native values, 
traditions, beliefs, and aboriginal lands to their future 
generations.
    In furtherance of reconciliation process, the Native 
Hawaiian people seek to re-organize a native governing body. A 
Native Hawaiian governing body, organized against the 
background of established precedent, would serve as a 
representative voice for the Native Hawaiian people, focus 
community goals, provide governmental services to improve 
community welfare, and recognize the legitimate aspiration of 
the Native Hawaiian people to transmit their values, 
traditions, and beliefs to their future generations.
    The United States has a unique legal relationship with 
Indian tribal governments as set forth in the Constitution of 
the United States, treaties, statutes, Executive orders, and 
court decisions. Since the formation of the Union, the United 
States has recognized Indian tribes as domestic dependent 
nations under its protection. In treaties and under Federal 
common law, our Nation has guaranteed the right of Indian 
tribes to self-government. As domestic dependent nations, 
Indian tribes exercise inherent sovereign powers over their 
members and territory. The United States continues to work with 
Indian tribes on a government-to-government basis to address 
issues concerning Indian tribal self-government, trust 
resources, and Indian tribal treaty and other rights.
    Traditionally, most aspects of the trust responsibility 
were delegated by Congress to the Department of the Interior 
and the Department of Justice, the latter of which has 
litigated many court cases on behalf of Indian tribes and 
individuals. As Federal programs for Indians have proliferated 
in modern times, many other Federal agencies have become 
involved in Indian affairs and they, too, must comply with the 
duties imposed by the trust relationship.
    In the Department of the Interior, the Bureau of Indian 
Affairs (BIA) is the principal bureau within the Federal 
Government responsible for the administration of Federal 
programs for Federally recognized Indian tribes, and for 
promoting Indian self-determination. In addition, the BIA, like 
all Federal agencies, has a trust responsibility emanating from 
treaties, statutes, judicial decisions and agreements with 
tribal governments. The mission of the BIA is to enhance the 
quality of life, to promote economic opportunity, and to carry 
out the responsibility to protect and properly manage the trust 
assets of Indian tribes and Alaska Natives. The BIA provides 
resources and delivers services to support tribal government 
operations similar to those provided by state, city, and 
municipal governments. These services include, but are not 
limited to: law enforcement, social services, education, 
housing improvements, loan opportunities for Indian businesses, 
and leasing of land.
    The BIA currently provides Federal services to 
approximately 1.2 million American Indians and Alaska Natives 
who are members of more than 550 Federally recognized Indian 
tribes in the 48 contiguous States and in Alaska. The BIA also 
has a trust responsibility for more than 43 million acres of 
tribally-owned land and more than 10 million acres of 
individually-owned land. The BIA is headed by the Assistant 
Secretary-Indian Affairs, who is responsible for BIA policy.


                          trust responsibility


    The courts consistently have upheld exercises of 
congressional power over Indian affairs, as specifically 
provided under the Indian Commerce Clause. U.S. Constitution, 
Article I, Section 8, clause 3. Pursuant to that authority, the 
Congress has enacted many statutes for the benefit of Native 
Hawaiians.
    The concept of the Federal Indian trust responsibility was 
evident in the Trade and Intercourse Acts and other late 18th 
and 19th-century Federal laws protecting Indian land 
transactions and regulating trade with the tribes. The doctrine 
was first announced in Chief Justice Marshall's opinion in 
Cherokee Nation v. Georgia (1831). The Cherokee Nation had 
filed suit in the United States Supreme Court to enjoin the 
state of Georgia from enforcing state laws on lands guaranteed 
to the tribe by treaties. The Court concluded that the tribe 
was neither a state nor a foreign nation under the Constitution 
and therefore was not entitled to bring the suit initially in 
the Supreme Court. Chief Justice Marshall, however, concluded 
that Indian tribes ``may, more correctly, perhaps, be 
denominated domestic dependent nations'' and that ``[t]heir 
relation to the United States resembles that of a ward to his 
guardian.'' The courts consistently have upheld exercises of 
congressional power over Indian affairs, often relying on the 
trust relationship.
    The Supreme Court's subsequent decision in Worcester v. 
Georgia (1832) reaffirmed the status of Indian tribes as self-
governing entities. Chief Justice Marshall construed the 
treaties and the Indian Trade and Intercourse Acts as 
protecting the tribes' status as distinct political communities 
possessing self-government authority within their boundaries. 
Thus, Georgia state law could not be applied on Cherokee lands 
because, as a matter of Federal law, the United States had 
recognized tribal self-governing powers by entering into a 
treaty with the Cherokees. In spite of its government status, 
however, the Cherokee Nation was placed expressly by the 
treaties ``under the protection of the United States.''
    Under the special relationship, Indian tribes receive some 
benefits not available to other citizens. For example, in the 
1974 Morton v. Mancari decision, the Supreme Court upheld a BIA 
Indian hiring preference because, like special health and 
education benefits flowing from the trust relationship, the 
preference is not based on race; rather, Federal programs 
dealing with Indians derive from the government-to-government 
relationship between the United States and Indian tribes. The 
same reasoning applies to off-reservation Indian hunting and 
fishing rights; they trace to treaties with specific tribal 
governments.


                          federal recognition


    The rights, duties and obligations that make up the trust 
relationship as exercised through the Secretary of the Interior 
exist only between the United States and those Indian tribes 
``recognized'' by the United States. Once Federal recognition 
is found to exist, it results in the establishment of a 
government-to-government relationship with the tribe.
    An Indian group is a federally recognized tribe if: (1) 
Congress or the executive created a reservation for the group 
either by treaty, by statutorily expressed agreement, or by 
executive order or other valid administrative action; and (2) 
the United States has some continuing political relationship 
with the group, such as providing services through the BIA. 
Accordingly, Indian groups situated on Federally maintained 
reservations are considered tribes under virtually every 
statute that refers to Indian tribes. In addition, tribes have 
been recognized by the United States based on the existence of 
treaty relations or other continuous dealings with the Federal 
Government, despite the lack of a reservation.
    In 1978, in order to resolve doubts about the status of 
those tribes lacking Federal recognition, the Department of the 
Interior issued regulations entitled ``Procedures for 
Establishing that an American Indian Group Exists as an Indian 
Tribe,'' now codified at 25 CFR 83. The regulations ``establish 
a departmental procedure and policy for acknowledging that 
certain American Indian tribes exist.''
    Such acknowledgement of tribal existence by the Department 
is a prerequisite to the protection, services, and benefits 
from the Federal Government available to Indian tribes. Such 
acknowledgment also means that the tribe is entitled to the 
immunities and privileges available to other Federally 
acknowledged Indian tribes by virtue of their status as Indian 
tribes as well as the responsibilities and obligations of such 
tribes. Acknowledgment subjects the Indian tribe to the same 
authority of Congress and the United States to which other 
Federally acknowledged tribes are subjected. 25 CFR 83.2.
    Under the procedures, groups not recognized as tribes by 
the Federal Government may apply for Federal acknowledgement. 
Tribes, bands, pueblos or communities already acknowledged as 
such and receiving services from the Bureau of Indian Affairs 
were not required to seek acknowledgment anew. 25 CFR 83.3 (a), 
(b). To assist groups in determining whether they were required 
to apply, the procedures provided for the publication within 90 
days of a list of ``all Indian tribes which are recognized and 
receiving services from the Bureau of Indian Affairs.'' 25 CFR 
83.6(b). This list is to be updated annually. Federally 
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.


              department comments on s. 2899 and h.r. 4904


    The Department has recommended a reconciliation process 
that would result in an official confirmation of a political, 
government-to-government relationship between Native Hawaiians 
and the Federal Government, similar to the relationship enjoyed 
by other native people in the United States. The Senate and 
House Bills would enable the Native Hawaiians to establish a 
representative governing body through a process that has 
precedent in the federal recognition of Indian tribes.
    The Department has recommend the establishment of an office 
under the Assistant Secretary of Indian Affairs to address 
Native Hawaiian issues. The Bills, however, would establish a 
new Interior Office of Special Trustee for Native Hawaiian 
Affairs.
    The Department has recommended the creation of a Native 
Hawaiian Advisory Commission to consult with Interior bureaus 
that manage land in Hawaii affecting Native Hawaiians. The 
Bills would also establish a Native Hawaiian Interagency Task 
Force for the government-wide coordination of federal policies 
affecting Native Hawaiians, including consultations with the 
Native Hawaiian governing body.
    We have carefully reviewed the definition of ``Native 
Hawaiians'' in the Bills and consulted with the Department of 
Justice. We concur in the recommendations made by the 
Department of Justice with respect to that definition.


                               conclusion


    The Department of the Interior generally supports the 
legislation and is committed to working with the Native 
Hawaiian people and the Congress, upon enactment of this 
legislation, to address successfully the steps to federal 
recognition, self-governance, and self-determination of the 
Native Hawaiian people. There are a number of prospective 
matters that the Federal Government may have to work out with 
the Native Hawaiian governing body and the State of Hawai'i, 
through future legislation. These challenges may include:
          Potential land claims that Native Hawaiians may 
        assert against the United States, the State of Hawai'i 
        or private landowners;
          The nature and extent of the rights, obligations and 
        benefits in extending Federal recognition to Native 
        Hawaiians under the Native American Indian statutes;
          The Federal Government's trust and fiduciary 
        responsibilities for any federal lands that may be 
        transferred to the Native Hawaiian community; and
          The relative responsibilities of Native Hawaiian 
        community and the State of Hawai'i and its local 
        governments in providing schools, law enforcement, and 
        other public services.
    With the permission of the Committees, the Department 
intends to supplement this testimony with additional views on 
S. 2899 and H.R. 4904 before the record is closed. This 
concludes my prepared statement. I will be happy to answer any 
questions the Committee members may have.
                                ------                                


   Testimony of Jacqueline Agtuca, Acting Director, Office of Tribal 
                  Justice, U.S. Department of Justice

    Vice Chairman Inouye, Senator Akaka, and Representatives 
Abercrombie and Faleomavaega, my name is Jacqueline Agtuca. I 
am the Acting Director of the Office of Tribal Justice in the 
United States Department of Justice. Thank you for the 
opportunity to present views on S. 2899 and H.R. 4904.
    At the outset, I should explain that the Office of Tribal 
Justice coordinates Department policy on its dealings with 
American Indians, Alaska Natives, and Native Hawaiians. 
Department of Justice policy recognizes the principle of 
government-to-government relations in its work with tribal 
governments. See Department of Justice Policy on Indian 
Sovereignty and Government-to-Government Relations with Indian 
Tribes, at 1 (June 1, 1995); http://www.usdoj.gov/otj/
sovtrb.htm. Pursuant to this policy, the Office of Tribal 
Justice has been integrally involved in the Reconciliation 
Process between the United States and the Native Hawaiian 
people pursuant to Public Law 103-150 (S.J. Res. 19), 107 Stat. 
1510 (1993), the Native Hawaiian Apology Resolution. S. 2899 
and H.R. 4904 would provide the Native Hawaiian people with an 
opportunity to reorganize a representative, self-governing body 
to promote Native Hawaiian interests.
    I will begin with a brief background of the relevant 
history of United States-Native Hawaiian relations and a 
discussion of the Reconciliation Process under Public Law 103-
150 before turning to some of our specific comments on the 
identical Senate and House bills.


        i. background of native hawaiian-united states relations


    The Native Hawaiian people are the indigenous people of 
Hawaii. Historically, the Native Hawaiian people lived in a 
highly organized, self-sufficient, subsistence social system 
based on communal land tenure. The Native Hawaiians have a 
highly developed and distinctive language, culture, and 
religion. The first encounter between Native Hawaiians and 
Europeans occurred when Captain James Cook sailed into Hawaiian 
waters in 1778. At that time, even though indigenous Hawaiians 
were all one people, the eight islands were governed by four 
independent Hawaiian chiefdoms.
    In 1810, King Kamehameha I united the islands into the 
Kingdom of Hawaii. Between 1826 and 1893, the United States 
recognized the Kingdom as a sovereign nation and entered into 
several treaties with it. During that same period, Americans 
gained control of most of Hawaii's commerce and began to 
dominate the Kingdom's political affairs. Resulting social and 
economic changes had a ``devastating'' effect on the Native 
Hawaiian population and on their ``health and well-being.'' 
Public Law 103-150, 107 Stat. 1510, 1512.
    In 1893, Queen Lili'uokalani sought to re-establish Native 
Hawaiian control over the Kingdom's governmental affairs 
through constitutional reform. Fearing a loss of power, a group 
representing American commercial interests overthrew the 
Kingdom with the unauthorized aid of the United States Minister 
to Hawaii, who caused an armed U.S. naval force to invade 
Hawaii. Under this threat of military force, Queen 
Lili'oukalani abdicated her throne. A provisional government 
was established, which immediately sought Hawaii's annexation 
by the United States. President Cleveland refused to recognize 
the provisional government and called for restoration of the 
monarchy. However, Congress later enacted a joint resolution 
annexing Hawaii, which President McKinley signed into law in 
1898. As part of annexation, the provisional government, 
without compensation to the Native Hawaiian people, ceded 1.8 
million acres of the Kingdom's former crown, government, and 
public lands to the United States (the ``ceded lands'').
    After annexation, the conditions of Native Hawaiians 
continued to deteriorate, and in 1920, territorial 
representatives sought assistance for the Native Hawaiian 
people from Congress. Explaining that the Native Hawaiian 
people had been ``frozen out of their lands and driven into the 
cities,'' and that the ``Hawaiian people are dying,'' the 
representatives recommended allotting land to the Native 
Hawaiians so that they could reestablish their traditional 
agricultural way of life. H.R. Rep. 839, 66th Cong., 2d Sess. 4 
(1920). Recognizing the unique relationship between the United 
States and the Native Hawaiian people, the Secretary of the 
Interior joined in the recommendation, stating that Native 
Hawaiians are ``our wards * * * for whom in a sense we are 
trustees,'' that they were ``falling off rapidly in numbers,'' 
and that ``many of them are in poverty.'' Id. Additionally, 
Congress found constitutional precedent for the HHCA in part in 
previous enactments that allotted individual lands to American 
Indians. The recommendations led to the enactment of the 
Hawaiian Homes Commission Act (``HHCA''), Pub. L. No. 67-34, 42 
Stat. 108 (July 9, 1921), which designated 200,000 acres of 
lands as homelands for ``Native Hawaiians'' of \1/2\ blood or 
more.
    In 1959, Hawaii was admitted as a State. In the Hawaii 
Admissions Act, Pub. L. No. 86-3, 73 Stat. 4 (1959), Congress 
required the new State of Hawaii to adopt the HHCA as part of 
its constitution and transferred federal authority over 
administration of the HHCA lands to the State. Congress also 
placed an additional 1.2 million acres of the ceded lands into 
a trust to be managed by the State for five specified purposes, 
including ``the betterment of the conditions of native 
Hawaiians.'' Id Sec. 5(f), 73 Stat. at 6.
    The admission of Hawaii as a State did not alter the status 
of Native Hawaiians as an indigenous people, and thus, did not 
alter the political relationship between the United States and 
the Native Hawaiian people. After passage of the Hawaii 
Admission Act, Congress continued to recognize its special 
responsibility for the welfare of Native Hawaiians. Congress 
has established programs for the benefit of Native Hawaiians in 
the areas of health care, education, employment, and loans. 
Congress has also enacted statutes to preserve Native Hawaiian 
culture, language, and historical sites. Native Hawaiians have 
been classified as Native Americans in a number of federal 
statutes. These laws reflect Congress's view that its 
``authority * * * under the United States Constitution to 
legislate in matters affecting the aboriginal or indigenous 
peoples of the United States includes the authority to 
legislate in matters affecting the native peoples of * * * 
Hawaii.'' 42 U.S.C. Sec. 11701(17). This acknowledgment of a 
distinct political relationship between the United States and 
the Native Hawaiians arose out of these historical events I 
have just described.
    In 1980, Congress authorized a Native Hawaiians Study 
Commission to assess the cultural needs and concerns of Native 
Hawaiians (Public Law 96-565, Title III). The Commission, 
comprised of three Hawaiian residents, six federal officials, 
and support staff, conducted public meetings and other fact-
finding activities throughout Hawaii during January-June 1982. 
The Commission's final, two-volume report was submitted to 
Congress on June 23, 1983. The social and economic conditions 
of the Native Hawaiian population has not improved 
significantly since this 1983 study. Their employment, income, 
education, and health levels have remained lower than other 
ethnic groups in Hawaii. The Commission recommended coordinated 
actions by the federal, state, and local governments and 
private organizations to address specific needs of Native 
Hawaiians.
    The Senate and House bills that are being considered today 
would begin this process of restoring self-governance to Native 
Hawaiians so they may better address their social, economic and 
cultural needs.


            ii. the reconciliation process under public law


                                103-150


    In 1993, Congress enacted a Joint Resolution to acknowledge 
the 100th anniversary of the overthrow of the Kingdom of Hawaii 
and to apologize to the Native Hawaiian people for the role of 
the United States in that overthrow. In the Joint Resolution, 
Congress acknowledged that the overthrow of the Kingdom 
``resulted in the suppression of the inherent sovereignty of 
the Native Hawaiian people,'' that ``the indigenous Hawaiian 
people never directly relinquished their claims to their 
inherent sovereignty as a people or over their national lands 
to the United States,'' and that ``the Native Hawaiian people 
are determined to preserve, develop and transmit to future 
generations their ancestral territory, and their cultural 
identity in accordance with their own spiritual and traditional 
beliefs, customs, practices, language, and social 
institutions.'' Pub. 103-150 (S.J. Res. 19), 107 Stat. at 1512, 
1513 (1993). The Joint Resolution calls upon the President to 
promote further reconciliation between the United States and 
the Native Hawaiian people.
    In March 1999, Senator Akaka wrote to the Attorney General, 
requesting that an office by designated within the Department 
of Justice to work in cooperation with the Department of the 
Interior to promote reconciliation between the United States 
and the Native Hawaiian people. The Attorney General designated 
the Office of Tribal Justice to work with the Department of the 
Interior on the Reconciliation Process. In December 1999, the 
Interior Department Assistant Secretary for Policy, Management 
and Budget and the Director of the Office of Tribal Justice 
visited Native Hawaiian sites and held a series of meetings 
with the Native Hawaiian people to promote reconciliation.
    The site visits demonstrated to the Interior-Justice 
delegation the continuing, distinctly native character and 
culture of the Native Hawaiian people. The delegation visited 
Aha Punana Leo, a Native Hawaiian language immersion school on 
the Island of Hawaii. They were greeted by Native Hawaiian 
students with traditional Native Hawaiian songs, and they 
toured the campus grounds, which included areas planted with 
Taro, the traditional Native Hawaiian staple, and a fish 
hatchery, reflecting traditional aquaculture. Students had also 
planted native trees and plants on the campus to establish a 
conservation area. On the Island of Kauai, the delegation met 
with Native Hawaiian parents and students at Ni'ihau, a school 
run by Native Hawaiian teachers from Ni'ihau and Kauai. The 
Ni'ihau parents explained that their children learned Hawaiian 
as a first language in the home, so the focus at the school was 
on teaching the students to speak, read, and write English to 
ensure that the children are able to interact with non-Natives 
when they travel to neighboring islands. On the Island of 
Molokai, the delegation visited a Native Hawaiian group that is 
restoring a fish pond that is hundreds of years old for 
subsistence use. On Molokai, the delegation met with a Native 
Hawaiian kindergarden class, where all of the students are 
fluent in both Hawaiian and English, and visited with Native 
Hawaiian kupuna (elders), who explained the importance of being 
raised in a Hawaiian Homestead community in terms of language 
and cultural preservation. The delegation also met with and 
visited a number of Native Hawaiian organizations, including: 
the Alu Like, the Native Hawaiian Education advocacy 
organization; members of Native Hawaiian organizations 
advocating for self-governance; a Native Hawaiian Health Care 
Center; the Kamehameha schools; Hawaiian Home Land communities 
and land areas on Kauai, Oahu, and Maui; and several other 
distinctly Native Hawaiian communities. In addition, the 
delegation held public meetings and heard statements from 
several hundred Native Hawaiians.
    Throughout these delegation site visits and public 
meetings, two things were made clear. First, the Native 
Hawaiians and a distinctly native community with a vibrant 
culture, traditions, and language and active social and 
political organizations. We learned from Native Hawaiians that 
Hawaiian Home Land settlements helped to maintain Hawaiian 
language and culture, which was particularly important from the 
1920s through the 1960s when the use of the Native Hawaiian 
language and the practice of Native Hawaiian culture were often 
discouraged by state institutions. We also learned that since 
the 1960s, a number of Native Hawaiian advocacy groups have 
actively promoted Hawaiian language and culture and these 
efforts have gone hand-in-hand with efforts to enhance Native 
Hawaiian self-governance. To foster these efforts, the Native 
Hawaiian people maintain both social and quasi-governmental 
institutions, such as the Native Hawaiian Civic Clubs, Alu 
Like--the Native Hawaiian education organization, Papa Ola 
Lokahi--the Native Hawaiian health care organization, Native 
Hawaiian schools, and Native Hawaiian traditional justice 
programs, among others.
    Second, the delegation heard the clear call of the Native 
Hawaiian people for self-governance. A majority of Native 
Hawaiians, from whom the delegation heard, support increased 
self-governance over their lands, resources, and affairs.\1\ 
Some of the critical subjects that the Native Hawaiian people 
identified are increased control of Native Hawaiian lands and 
resources, education programs, health care delivery, Native 
Hawaiian housing, and an increased ability to engage the 
Federal Government in an ongoing dialogue concerning Native 
Hawaiian issues.
---------------------------------------------------------------------------
    \1\ While most Native Hawaiians appear to support increased Native 
Hawaiian control over native lands, resources, and affairs within the 
framework of Federal law, some members of the Native Hawaiian community 
have called for restoration of the Kingdom of Hawaii or another form of 
independence from the United States. The Interior-Justice delegation 
explained that its mission was to promote reconciliation within the 
framework of Federal law, and the Reconciliation Process does not have 
any bearing or implication concerning international law matters.
---------------------------------------------------------------------------


                 iii. comments on s. 2899 and h.r. 4904


    The overthrow of the Kingdom of Hawaii frustrated the right 
of Native Hawaiians to control their own affairs. While 
Congress has enacted a number of measures to promote the 
welfare of the Native Hawaiian people, and Native Hawaiians 
have themselves worked to maintain their own distinct 
community, culture, language, and social and political 
institutions, they have not been afforded a clear opportunity 
to control their own affairs since 1893. These bills would 
enable the Native Hawaiians in reorganizing their own 
representative governing body, which will promote control over 
their own affairs.
A. Goals of this legislation
    It is evident from the documentation, statements, and views 
received during the Reconciliation Process undertaken by the 
Interior-Justice delegation that the Native Hawaiian people 
continue to maintain a distinct community and certain 
governmental structures, and they desire to increase their 
control over their own affairs. For generations, the United 
States has recognized the unique relationship that exists 
between the United States and the Native Hawaiians, and has 
promoted the welfare of Native Hawaiians as an indigenous 
people within our Nation through legislation, administrative 
action and policy statements. The proposed legislation, by 
clarifying the political status of Native Hawaiians, would 
extend to Native Hawaiians the right of self-governance over 
their cultural resources and internal affairs.
    The proposed process of reorganizing a Native Hawaiian 
governing body has precedent in Federal legislation promoting 
self-governance for American Indian and Alaska Native peoples. 
The government-to-government relationship that exists between 
the United States and American Indian and Alaska Native 
communities is firmly established in federal law and policy. 
From its earliest days, the United States recognized the 
sovereign status of Indian tribes. Indian tribes were 
independent self-governing societies long before their contact 
with European nations. See National Farmers Union Ins. Co. v. 
Crow Tribe of Indians, 471 U.S. 845, 851 (1985); F. Cohen, 
``Handbook of Federal Indian law,'' 229 (Strickland ed. 1982). 
The retention of inherent sovereignty forms the basis for the 
exercise of tribal power. Today American Indian tribes and 
Alaska Native villages and corporations control many programs 
affecting their communities, including, for example, programs 
affecting their lands and natural resources, schools and 
colleges, health, housing, water, sewer, and sanitation 
services, public safety, and transportation infrastructure on 
native lands. In addition, acknowledged governmental leaders 
facilitate the government-to-government relationship, which 
enables tribal governments to advocate effectively for their 
community interests.
    The proposed bills respond to the call of the Native 
Hawaiian people for increased self-governance within the 
framework of domestic Federal law. It recognizes that Native 
Hawaiians were a elf-governing people prior to contact with the 
European nations, and that the clarification of their political 
status vis-a-vis the United States is a legitimate exercise of 
Congress' Indian affairs power. The reorganization of a Native 
Hawaiian governing body that the bill affords the Native 
Hawaiian people to constitute could assist the Native Hawaiians 
to better address their community needs and goals in the 
context of federal law, and could facilitate the government-to-
government relationship between the Federal Government and the 
Native Hawaiian community. Enhancing the government-to-
government relationship between the Native Hawaiians and the 
United States could ensure that the Native Hawaiian people have 
greater control over activities affecting their rights and 
resources. See Executive Memorandum on Government-to-Government 
Relations with Native American Tribal Governments (April 29, 
1994).
B. Findings
    The bills' legislative findings establish Congress' intent 
to exercise authority pursuant to its Indian affairs power. 
Section 1(1) states that ``the Constitution vests Congress with 
the authority to address the conditions of the indigenous, 
native peoples of the United States.'' Subsections (2) and (3) 
find that the Native Hawaiian people are an aboriginal, 
indigenous, native people with a special trust relationship to 
the United States and that Congress has legislated on behalf of 
the Native Hawaiian people as such. The legislative findings 
concerning the Hawaiian Homes Commission Act are important 
because they reflect an early congressional effort to promote 
the welfare of the Native Hawaiian people by fostering the 
continuation of traditional Native Hawaiian agricultural 
endeavors on aboriginal lands under the protection of Federal 
law. The HHCA embodies a congressional determination that the 
Native Hawaiians, as defined in that Act, are an indigenous, 
aboriginal people under the protection of the United States. 
The legislative findings also reflect the fact that the Native 
Hawaiian people today maintain a continuing, distinctly Native 
Hawaiian culture, language, social and political institutions, 
and community. These policy declaration make clear that 
Congress intends to reaffirm the right of Native Hawaiians to 
self-governance, within the framework of Federal law, and 
intends to continue to promote reconciliation between the 
United States and the Native Hawaiian people.
C. Definition of Native Hawaiian
    In modern Federal legislation dealing with American Indians 
Alaska Natives, Congress commonly relies on a tribe's 
determination of its own membership. However, because the 
Native Hawaiian governing body has not yet been reorganized, an 
interim Federal law definition of ``Native Hawaiian'' is 
necessary for the operation of the legislation.
    We have several comments on the definition of ``Native 
Hawaiian'' set forth in section 2(6), and section 7. First, the 
Department finds it important that the definition includes only 
those Native Hawaiians who voluntarily choose to affiliate with 
the Native Hawaiian governing body. Section 7(a)(1)(A) does 
exactly this by establishing a roll that includes the names of 
``the adult members of the Native Hawaiian community who wish 
to become members of a Native Hawaiian governing body.''
    Second, the interim definition of Native Hawaiian set forth 
in section 7(a) ties membership to ``lineal descendants of the 
aboriginal, indigenous, native people who resided in the 
islands that now comprise the State of Hawaii on January 1, 
1893, and who occupied and exercised sovereignty in the 
Hawaiian archipelago.''
    The Supreme Court's decision in Rice v. Cayetano, 120 S. 
Ct. 1044 (2000) left open the question ``whether Congress may 
treat the native Hawaiians as it does the Indian tribes.'' 
Rice, 120 S. Ct. at 1057. Accordingly, in invoking its 
established constitutional authority with respect to Indian 
Tribes in the present context--namely, by providing Native 
Hawaiians with much the same opportunity to reorganize and 
establish a self-governing body that Congress has furnished to 
the Indian Tribes elsewhere in the United States that the Court 
referred to--it would make the most sense to adopt an interim 
definition that draws upon past practices under Congress's 
Indian affairs power.
    Thus, we recommend an alternative interim definition that 
references the Hawaiian Homes Commission Act (HHCA), Pub. L. 
No. 67-34, 42 Stat. 108 (1921). There are several reasons for 
this recommendation. First, the HHCA was itself an exercise of 
Congress' Indian affairs power not long after annexation, and 
it thus represents an established Federal law process for 
determining who is a Native Hawaiian for federal purposes. See 
H.R. Rep. 839, 66th Cong., 2d Sess. 4 (1920) (statement of 
Secretary Lane expressly mentioning the trust relationship that 
exists between the United States and Native Hawaiians). Second, 
the HHCA presents a definition that is tied to those Native 
Hawaiians who are eligible to reside on distinctly native 
Hawaiian lands, and which can reasonably serve as an indication 
of those Native Hawaiians who maintain close ties to the Native 
Hawaiian community. Third, insofar as lineal descendancy is 
concerned, this definition traces to 1778, the date of European 
contact, rather than 1893, after the arrival of Europeans and 
Americans. Finally, the Department of Hawaiian Home Lands 
maintains a record keeping system regarding eligibility for 
HHCA lands, which will make the interim reorganizational 
process more definitive and thus less complicated. This 
recommendation is intended to ensure that this legislation 
serves as an enduring measure to provide a strong foundation 
for Native Hawaiian self-governance within the framework of 
federal law.
    Accordingly, we recommend the following interim definition 
of the term Native Hawaiian:
    A Native Hawaiian is any person:
          (a)(i) who is eligible to hold Hawaiian Home lands as 
        a Native Hawaiian directly or by devise under the 
        Hawaiian Homes Commission Act, Public Law 67-34, 42 
        Stat. 108, as amended, and (ii) who voluntarily 
        affiliates with the Native Hawaiian people as a 
        political community; or
          (b)(i) who is a lineal descendant of a Native 
        Hawaiian who is or was eligible to hold Hawaiian Home 
        Lands directly or by devise under Public Law 67-34, 42 
        Stat. 108, as amended, (ii) who is recognized by the 
        Native Hawaiian community as a Native Hawaiian, and 
        (iii) who voluntarily affiliates with the Native 
        Hawaiian people as a political community.
    Finally, it is important to note that the purpose of the 
interim definition is to provide a means of implementing this 
legislation, which first seeks to establish a Native Hawaiian 
Interim Governing Council. Once that is accomplished, the 
Native Hawaiian people may then determine their own membership 
just as other native communities. A tribe's ``right to define 
its own membership for tribal purposes has long been recognized 
as central to its existence as an independent political 
community.'' Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 
n.32 (1978). Section 7(c)(7)(D) expressly states that the 
organic documents of the governing body will vest it with the 
power to ``determine the membership in the Native Hawaiian 
governing body.''
D. Transfer of authority over HHCA and ceded lands trust to the Native 
        Hawaiian governing body
    Section 9(a) of the bills reaffirms the delegation of 
authority by the United States to the State of Hawaii over the 
HHCA in Hawaii's Admissions Act. Section 9(b) then authorizes 
the United States to negotiate an agreement between the State 
and the Native Hawaiian governing body that would transfer 
authority over ``lands, resources, and assets dedicated to 
Native Hawaiian use under existing law'' to the Native Hawaiian 
governing body. We support the premise of providing the Native 
Hawaiian governing body with primary authority over these 
programs.
    However, we recommend an alternative provision that would 
authorize the State and the Native Hawaiian governing body to 
negotiate a transfer of authority over governmental services 
provided by the State to the Native Hawaiian governing body, 
subject to the approval of the Secretary. This alternative 
provision would better serve the Native Hawaiian community 
because the State is, at present, the administrator of the HHCA 
and the ceded lands, trust, not the United States. Our 
alternative provision would also provide express protection for 
the justified expectations of Native Hawaiians under the HHCA.


                               conclusion


    In conclusion, the Department of Justice generally 
supports, S. 2899 and H.R. 4904, and is committed to working 
closely with the Native Hawaiian people and the Congress, upon 
enactment of this legislation, to address successfully the 
steps to Federal recognition, self-determination, and self-
governance for the Native Hawaiian people. There are a number 
of prospective matters that the Federal Government may have to 
work out with the Native Hawaiian governing body and the State 
of Hawaii, through future legislation. These challenges may 
include:
          Potential land claims that Native Hawaiians may 
        assert against the United States, the State of Hawaii, 
        or private landowners;
          The nature and extent of the rights, obligations and 
        benefits in extending Federal recognition to Native 
        Hawaiians under the Native American Indian statues;
          The Federal Government's trust and fiduciary 
        responsibilities for any federal lands that may be 
        transferred to the Native Hawaiian community; and
          The relative responsibilities of the Native Hawaiian 
        community and the State of Hawaii and its local 
        governments in providing schools, law enforcement, and 
        other public services.
    The the permission of the Committees, the Department 
intends to supplement this testimony with additional views on 
S. 2899 and H.R. 4904 before the record is closed. Once again, 
thank you for this opportunity to present views on this 
important legislation.

                        CHANGES IN EXISTING LAW

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee finds that 
enactment of S. 2899 will not effect any changes in existing 
law.

                                  
