[Senate Report 107-66]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 165
107th Congress                                                   Report
                                 SENATE
 1st Session                                                     107-66

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



 
EXPRESSING THE POLICY OF THE UNITED STATES REGARDING THE UNITED STATES 
  RELATIONSHIP WITH NATIVE HAWAIIANS AND TO PROVIDE A PROCESS FOR THE 
  RECOGNITION BY THE UNITED STATES OF THE NATIVE HAWAIIAN GOVERNING 
  ENTITY, AND FOR OTHER PURPOSES

                                _______
                                

               September 21, 2001.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 746]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 746) expressing the policy of the United States 
regarding the United States relationship with Native Hawaiians 
and to provide a process for the recognition by the United 
States of the Native Hawaiian governing entity, and for other 
purposes, having considered the same, reports favorably thereon 
with an amendment and recommends that the bill, as amended, do 
pass.

                         purpose and background

    The purpose of S. 746 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, the government of the Kingdom of 
Hawai`i was overthrown by a group of American citizens and 
others, who acted with the support of U.S. Minister John 
Stephens and a contingent of U.S. Marines from the U.S.S. 
Boston. One hundred years later, a resolution extending an 
apology on behalf of the United States to Native Hawaiians for 
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) (``Apology Resolution''). The Apology Resolution 
acknowledges that the overthrow of the Kingdom of Hawai`i 
occurred with the active participation of agents and citizens 
of the United States and 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 Hawai`i and culminating in two days of open dialogue. 
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 
report, entitled ``From Mauka to Makai: The River of Justice 
Must Flow Freely, (``Reconciliation Report'') was issued by the 
two departments on October 23, 2000. The principal 
recommendation contained in the Reconciliation 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.

Id., at 17.

    S. 746 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 and 
the indigenous, native people of the United States, S. 746 
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

    Since 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 Hawai`i 
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 Hawai`i upon its admission into the Union of States. The 
dedication of these revenues reflects the provisions of the 
1959 Hawai`i Admissions Act which provides that the ceded lands 
and the revenues derived therefrom should be held by the State 
of Hawai`i 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, 528 U.S. 495 
(2000). The Supreme Court held that because the Office of 
Hawaiian Affairs is an agency of the State of Hawai`i, 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 Hawai`i who are 
otherwise eligible to vote in statewide elections. Upon remand 
from the U.S. Supreme Court and the Ninth Circuit Court of 
Appeals, and by order of the U.S. District Court for the 
District of Hawai`i, 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 Hawai`i may vote for 
the candidates that register to run for the nine trustee 
positions.
    The native people of Hawai`i have thus been divested of the 
mechanism that was established under the Hawai`i State 
Constitution that, since 1978, has enabled them to give 
expression to their rights as indigenous, native people of the 
United States to self-determination and self-governance. S. 746 
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 Branch 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 
Hawai`i 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 
Hawai`i. See Haw. Const. Art. XVI, Sec. 7; Hawai`i Admission 
Act, Pub. L. No. 83-3, Sec. 4,73 Stat. 4, 5 (1959) (``Hawaii 
Admission Act''). In addition, the State agreed to the 
imposition of a public trust upon all of the lands ceded to the 
State upon admission. See Hawai`i Admission Act, Sec. 5(f); 
Haw. Const., Art. XII, Sec. 4. 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[.]'' Hawai`i 
Admission Act, Sec. 5(f). 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 carrier out. ID. Sec. Sec. 4 & 5 (f).
    In 1978, the citizens of the State of Hawai`i 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 Hawai`i.
    Hawai`i'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 or 
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 roots from 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 to America call 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 
``discoveries'' 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 peoples' 
inherent sovereignty informed the course of the newcomers' 
dealings with them. Spanish law of the 1500's and 1600's 
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 other 
native people of Alaska, and later, the indigenous, native 
people of Hawai`i.
    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 Fourteenth and Fifteenth Amendments were 
designed to address, the Supreme Court had recognized the 
unique status of America's native peoples under the 
Constitution and laws of the United States.
    Native Hawaiians are the indigenous, aboriginal people of 
the island group that is today the State of Hawai`i. Hawai`i 
was originally settled by voyagers from central and eastern 
Polynesia, traveling immense distances in double-hulled 
voyaging canoes and arriving in Hawai`i perhaps as early as 300 
A.D. The original Hawaiians were thus part of the Polynesian 
family of peoples, which includes the Maori, Samoans, Tongans, 
Tahitians, Cook Islanders, Marquesans, and Easter 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 Hawai`i 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 the pinnacle of the political, economic, and social 
structure 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, Hawai`i 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`a into `ili, 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. Chinen, 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. at 4. The authority of the mo`i 
or king was derived from the gods, and he was a trustee of the 
land and other natural resources of the island. Id. Chiefs owed 
military service, 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, Hawai`i: 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 mele (songs) 
of various kinds, genealogies and honorific stories * * * [much 
of which] was used as an accompaniment to the hula.'' 1 
Kuykendall, supra at 10-11. Hawaiians also had 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 M. Van Dyke, The Political 
Status of the Native Hawaiian People, 17 Yale L. & Pol'y Rev. 
95, 95 (1998) (citing, e.g., Joseph Feher, Hawai`i: A Pictorial 
History 36-132 (1969)).
    The communal nature of the economy and the caste structure 
of the society resulted in values strikingly 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.
    Hawai`i 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 Hawai`i'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 
Hawai`i on the Eve of Western Contact 59 (1989).
---------------------------------------------------------------------------
    Hawai`i was ``discovered'' by the west in 1778, when the 
first haole or white foreigner, Captain James Cook of the 
British Royal Navy, landed. Because he arrived during a 
festival associated with Lono in a ship whose profile resembled 
Lono's symbol, he was greeted as that long-departed god. Other 
western ships soon followed on journeys of exploration or 
trade. E.S. & Elizabeth G. Handy, Native Planters in Old 
Hawai`i 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 Hawai`i. King Kamehameha I 
won control of the Big Island of Hawai`i, and then successfully 
invaded Maui, Lana`i, Moloka`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 Native Hawaiian population. By 1866 only 57,000 
Native 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 Hawaiian kapu 
(taboos) or religion and were beyond the reach of the priests. 
The chiefs began to imitate the foreigners whose ships and arms 
were so superior to their own. The kapu were abolished soon 
after Kamehameha I died. See Fuchs, supra at 8-9. Christianity, 
principally represented by American missionaries, quickly 
flowed into the breach. Christianity condemned not only the 
native religion, but the world view, 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 
Hawai`i'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 Hawai`i'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 non-native 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 
Hawai`i, bolstered by Western warships which intervened at 
critical times, exerted enormous political influence[.]''). 
These influential westerners sought to limit the absolute power 
of the Hawaiian king over their legal rights and to implement 
property law so that they could accumulate and control land.
    By dint of foreign pressure, these goals were achieved. See 
e.g., Mackenzie, supra, at 6; 1 Kuykendall, supra, at 206-26. 
In 1840, King 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--the 
beginning of the division of Hawai`i's communal land which led 
to the transfer of substantial amounts of land to western 
hands.
    In the 1848 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 Hawai`i (``Government Lands''). All 
land remained subject to the rights of native tenants. In 1850, 
after the division was accomplished, an act was passed 
permitting non-natives to purchase land in fee simple. The 
expectation was that commoners would receive a substantial 
portion of the lands that were distributed 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 (commoners) 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. Id. at 8.
---------------------------------------------------------------------------
    Soon after the Mahele, there was a dramatic concentration 
of land ownership in plantations, estates, and ranches owned by 
non-natives. 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 Native 
Hawaiian people. The communal land system of subsistence 
farming was replaced by an economic dominated by western-owned 
plantation agriculture, and water formerly used for taro 
cultivation was increasingly diverted for irrigation of sugar 
plantations. Native Hawaiian 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 Native 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 Hawai`i, 
1991 Senate Journal 25-26). Native Hawaiians developed a 
debilitating sense of inferiority, and descended to the bottom 
tier of the economy and the society of Hawai`i.
    The mutual interests of Americans living in Hawai`i and the 
United States became increasingly clear as the 19th century 
progressed. American merchants and planters in Hawai`i wanted 
access to mainland markets and protection from European and 
Asian domination. The United States developed a military and 
economic interest in placing Hawai`i within its sphere of 
influence. In 1826, the United States and Hawai`i 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 Hawai`i in 1842) and the French (who forced an 
unfavorable treaty on Hawai`i 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 Hawai`i 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 Hawai`i 
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 Hawai`i and virtually all tariffs that Hawai`i had 
placed on American products. Critically, it also prohibited 
Hawai`i 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 Hawai`i'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 
to work the plantations.
    Matters came to a head in 1887, when King Kalakaua 
appointed a prime minister who had the strong support of the 
Hawaiian people and who opposed granting a base at Peal 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 non-native military group, 
the Honolulu Rifles, forced the prime minister's resignation 
and the enactment of a new constitution. The new constitution--
often referred to as the Bayonet Constitution--reduced the king 
to a figure of minor importance. It extended the right to vote 
to western males whether or not they were citizens of the 
Hawaiian Kingdom, and disenfranchised almost all native voters 
by giving only residents with a specified income level or 
amount of property the right to vote for members of the House 
of Nobles. The representatives of propertied westerners took 
control of the legislature. A suspected native revolt in favor 
of the King's younger sister, Princess Lili`uokalani, and a new 
constitution were quelled when the American minister summoned 
Marines from an American warship of Honolulu. Westerners 
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 Nobels 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 
westerners recognized that the Hawaiian monarchy posed a 
continuing threat to the unimpeded pursuit of their interests. 
They formed a Committee of Public Safety to overthrow the 
Kingdom. 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 United States' Minister in Hawai`i, 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 Hawai`i are unique 
because ``Hawai`i has been all the time under a virtual 
suzerainty of the United States.'' S. Rep. No. 53-277, at 21 
(1894) (emphasis supplied).
    As a result of this impasse, the United States government 
neither restored the Queen nor annexed Hawai`i. 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 
Hawai`i 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. 
MacKenzie, supra at 13; Fuchs, supra at 34-35.
---------------------------------------------------------------------------
    The election of President McKinley in 1896 gave the 
annexation movement new vigor. Another annexation treaty was 
sent to the Senate. Simultaneously, the Native 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 required only a simple 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 Hawai`i.'' Fuchs, supra at 36.
---------------------------------------------------------------------------
    \4\ The resolutions were signed by 21,269 people, representing more 
than 50% of the Native Hawaiian population in Hawai`i at that time. See 
Van Dyke, supra at 103 & n.48 (citing Dan Nakaso, Anti-Annexation 
Petition Rings Clear, Honolulu Advertiser, Aug. 5, 1998, at 1); Tom 
Coffman, Nation Within: The Story of America's Annexation of the Nation 
of Hawai`i 273-82 (1998).
---------------------------------------------------------------------------
    On August 12, 1898, the Republic of Hawai`i 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 Hawai`i's territorial government. And, in 1959 
Congress admitted Hawai'i 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 Native Hawaiian people and a trust obligation with respect 
to the public lands of Hawai`i.\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 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 also required that 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 Native 
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) (``Hawaiian Homes Commission 
Act'').
    In 1826 it was estimated that there were 142,650 full-
blooded Native Hawaiians in the Hawaiian islands. By 1919 their 
numbers had been reduced to 22,600. Historically, the Native 
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's. 
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 Native 
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 Hawai'i 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 the trust 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 Hawai'i, 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 now 
        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 Hose 
Committee on the Territories' report to the full U.S. House of 
Representatives.

    Prince Jonah Kuhio Kalanian'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 the Nation 
must provide similar remedies.\9\
---------------------------------------------------------------------------
    \8\ 59 Cong. Rec. 7453 (1920) (statement of Prince Jonah Kuhio 
Kalanianaole).
    \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 the Congress to enact the 
Hawaiian Homes Commission Act on July 9, 1921. The Act sets 
aside approximately 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, Sec. 203. 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 had been 
short-changed in prior land distribution schemes. Prince Kuhio 
further testified before the U.S. House of Representatives that 
Hawaiians had an equitable interests in the unregistered lands 
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 Hawai`i * * 
        *. 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 you 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 two decades 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 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 constitutes an 
express affirmation of the United States' trust responsibility 
to the Native Hawaiian people.

Hawai`i Admission Act

    As a condition of statehood, the Hawai`i 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 
Hawai`i by which Hawai`i 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 for 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.

Hawai`i Admission Act, Sec. 4, 73 Stat. at 5.

        The lands granted to the State of Hawai`i 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 from the sale or other disposition of 
        any such lands and the income therefrom, 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 Hawaiians, 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 provision 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.

Id Sec. 5(f), 73 Stat. at 6.

    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. 
Sections 4 and 5(f) of the Hawai`i Admission Act, quoted above, 
clearly contemplate a continuing Federal role, as do sections 
204 and 223 of the Hawaiian Homes Commission Act, which provide 
that the consent of the Secretary of the Interior must be 
obtained for certain exchanges of trust lands and reserve to 
congress the right to amend that Act. The Federal and State 
courts have repeatedly noted that the United States retains the 
authority to bring an enforcement action against the State of 
Hawai`i for breach of the section 5(f) trust. Han v. United 
States, 45 F3d 333 (9th Cir. 1995); Pele Defense Fund v. Paty, 
837 P2d 1247 (Hawai`i, 1992).
    Despite the overthrow and annexation of the Hawaiian 
Nation, Native Hawaiian culture has survived, and the Native 
Hawaiian people have a unique culture that continues today.
    Aloha `Aina (Love of the Land)--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 efforts 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 Register of Historic Places, and is the 
subject of a massive Federal clean-up project.\11\
---------------------------------------------------------------------------
    \10\ The State's motto reflects this concept: ``Ua mau ke 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 Hawai`i 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 Hawai`i's 
historic lands and has a long, documented history of cultural and 
natural significance to the people of Hawai`i. 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 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 Hawai`i and the federal government recognize a sovereign 
Hawaiian entity. Id. at Sec. 6K-9.
---------------------------------------------------------------------------
    Subsistence--Ancient Native 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 patterns 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\ Hawai`i 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 
Hawai`i 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 Hawai`i. 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).
---------------------------------------------------------------------------
    Kalo (Taro Cultivation)--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, Native Hawaiians have reclaimed and restored 
ancient taro fields, and formed a statewide association of 
native planters, `Onipa`a Na Hui Kalo.
---------------------------------------------------------------------------
    \14\ Lilikala Kame`elehiaw, 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 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, 
Halao, 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).
---------------------------------------------------------------------------
    `Ohana (Extended Family)--In the earliest era of Hawaiian 
settlement, governance was a function of the family.\16\ For 
Native 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 Hawai`i 
courts. See, e.g., Leong v. Takasaki, 520 P.2d 758, 766 (Haw. 1976); 
Estate of Emanuel S. Cunha, 414 P.2d 925-129 (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); 
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, in distinctly private ways, through `ohana 
lines.\18\
---------------------------------------------------------------------------
    \18\ McGregor, supra, at 9.
---------------------------------------------------------------------------
    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.''
    `Iwi (Bones)--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 Native Hawaiians. The State of 
Hawai`i has recognized the importance of protecting Native 
Hawaiian burial sites, and has established a Hawaiian Burial 
Council to ensure the `iwi of Hawaiian ancestors are treated 
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 Hawai`i Nei. See http://www.pixi.com/huimalam.
---------------------------------------------------------------------------
    Wahi Kapu (Sacred Places)--Ancient Hawaiians also 
recognized certain places as sacred, and took extraordinary 
measures to prevent their desecration. A contemporary example 
of this concept is found at Mauna `Ala on the island of O`ahu, 
where the remains of Hawai`i'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.
    `Olelo Hawai`i (Hawaiian Language)--``I ka `olelo no ke 
ola; i ka `olelo no ka make. With language rests life, with 
language rests death.'' \20\ The Hawaiian language was banned 
from the schools in 1896.\21\
---------------------------------------------------------------------------
    \20\ Ka`u: University of Hawai`i Hawaiian Studies Task Force 
Report, 23 (Dec. 1986). These anti-Hawaiian language efforts 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 Hawai`i 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). Hawaiian language 
newspapers, which were the primary medium for communication in Hawai`i 
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 time of the Republic and territorial period, the 
speaking of the Native Hawaiian language was strictly forbidden 
anywhere within school yards 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 ashamed of their cultural 
heritage and feel inferior to the haole American elite in Hawai`i.'').
---------------------------------------------------------------------------
    The language was kept alive in rural Hawaiian families and 
in the mele oli (songs and chants) of native speakers.\23\ In 
1978, the Hawai`i 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 Hawaiian 
community located on the isolated island of Ni`iahu, 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, 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 Hawai`i 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.
---------------------------------------------------------------------------
    Ho`oponopono (Conflict Resolution) \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 (185).
---------------------------------------------------------------------------
    Civic Association--Prior to Annexation, Native Hawaiians 
were active participants in the political life of the Islands. 
Political associations were organized to protests against the 
Bayonet Constitution of 1787 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 Hawai`i'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 Kalaiaina, 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. 3 Kuykendall, supra, at 448; Noenoe Silva, Kanaka Maoli 
Resistance to Annexation, 1 O`iwi: A Native Hawaiian Journal 45 (1998).
    \30\ Davianna Pomaika`i McGregor, `Aina Ho `opulapula: Hawaiian 
Homesteading, 24 The Hawaiian Journal of History 1, 4-5 (1990).
---------------------------------------------------------------------------
    La`au Lapa`au (Hawaiian Healing)--Quietly practiced over 
the past two centuries following European contact, Native 
Hawaiian medicine has always been an important alternative to 
western medical care. Today it is a 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 regimen of care.
---------------------------------------------------------------------------
    \31\ Isabella Aiona Abbott, La`au Hawai`i: 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. 11701e, et seq.).
---------------------------------------------------------------------------
    Halau Hula (Hula Academies)--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) (codified at Haw. Rev. Stat. 
Chapter Sec. 5-21).
---------------------------------------------------------------------------
    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 Native Hawaiians formed the 
Polynesian Voyaging Society. The Society researched Polynesian 
canoe-making and navigating traditions, and commissioned the 
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.\35\ The art of voyaging is 
alive and well in modern Hawai`i, 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 Hawai`iloa 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 Hawai`i 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.
---------------------------------------------------------------------------
    Native 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 most significant actions of the United States as 
they relate to the native people of Hawai`i 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 Indian 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 wherewithal to pay the taxes on the land, 
found their lands seized and 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 Hawai`i 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 Hawai`i was admitted into the 
Union, the Federal policy toward the native peoples of America 
was designed 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 transferred most of its 
responsibilities related to the administration of the Hawaiian 
Homes Commission Act to the new State of Hawai`i, 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 ``plenary,'' Morton v. Mancari, 427 U.S. 535 (1974), the 
Supreme Court has addressed the broad scope of the Congress' 
authority. Delaware Tribal Business Council 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 the Supreme 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. Hitchock, 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 
Business Council v. Weeks, 430 U.S. 73 (1977); United States v. John, 
437 U.S. 634 (1979).
---------------------------------------------------------------------------
    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.
    It has been suggested that the scope of constitutional 
authority vested in the Congress is constrained by the manner 
in which the native people organize themselves. Under this 
theory, 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 States. 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 Federal Convention 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 foederal 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 
Congress, but as descriptions of the native people who occupied 
and possessed the lands that were later 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 ever 
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 Native 
Hawaiians, 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 Hawai`i) 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 exercised the power to 
promote the welfare of all Native American peoples, and to 
foster the ever-evolving means and methods of Native Americans 
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 
people, Native Hawaiians 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 people 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 ``Esquimaux'' 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 Green 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\ Others theorized the Indians were the ``lost 
tribes'' of Israel.\42\
---------------------------------------------------------------------------
    \41\ A.M. Joseph, Jr., The Indian Heritage of America 40 (rev. ed. 
1991).
    \42\ Id.; 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 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. at 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, at 226.
---------------------------------------------------------------------------
    Modern scholars might be ``puzzled whether they [Eskimos] 
were Indians, or a separate and somewhat mysteriously distinct 
people on earth * * *'' \45\ Others might question whether the 
native people of Hawai`i are ``Indians.'' Efforts to draw 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. Indeed, as one 
historian reports, Captain James Cook, the English 
``discoverer'' of the Hawaiian islands and a contemporary of 
the Founders, referred to the inhabitants of the Hawaiian 
Islands as ``Indians.'' \46\ 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\ Joseph, Supra, at 57; see also Oxford English Dictionary (1st 
ed.) (``OED''), ``Indian'' (``The Eskimos * * * are usually excluded 
from the term * * *'').
    \46\ Gavan Daws, Shoal of Time, A History of the Hawaiian Islands 
2, 19, 23, 52 (1968) (Cook ``spent several years among the savages of 
the Pacific, ``Indians,'' as he and everyone else called them.''). 
Multiple references in logs and diaries of Captain Cook and his 
officers refer to the indigenous people they found in the Hawaiian 
Islands as ``Indians.'' For example, Cook wrote that his first mate 
``attempted to land but was prevented by the Indians coming down to the 
boat in great numbers.'' J.C. Beaglehole, The Journal of Captain James 
Cook on His Voyages of Discovery III 267 (1967). David Samwell, the 
surgeon on Cook's flagship Discovery, wrote, ``The Indians opened and 
made a lane from the Marines to pass.'' id., at 1161.
---------------------------------------------------------------------------
    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.\47\
---------------------------------------------------------------------------
    \47\ Robert F. Berkhofer, Jr., The White Man's Indian 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.'' \48\ 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.'' \49\ The early Greeks and Romans were 
``tribes.'' Welshmen belonged to tribes.\50\
---------------------------------------------------------------------------
    \48\ Alexander Fisher, A Journal of a Voyage of Discovery (1821) 
(``all the Esquimaux tribes'') (quotes in Oswalt, Supra, at 74); The 
Private Journal of Captain G.F. Lyon, (1824) (an Eskimo ``tribe'') 
(quoted in Oswalt, Supra, at 19); 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), 
at 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 1-5 (1875) (describing small 
and large divisions of Eskimos as ``tribes'').
    \49\ Id., Vol. 1 at 33 (describing the ``tribes of Britons'' who 
``took up arms with savage fierceness'' and the ``love of freedom 
without the spirit of union.'')
    \50\ OED, ``Tribe,'' def. 2.a-d. 38
---------------------------------------------------------------------------
    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.\51\ 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, 
were the ``tribes'' lived in a unified Kingdom under Kings 
David and Solomon.\52\ 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'': ``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.'' \53\
---------------------------------------------------------------------------
    \51\ OED, ``Tribe'' (application of the word ``to the tribes of 
Israel. . .from its biblical use, was the earliest use in English'').
    \52\ 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 from league under King David); 1 
Chronicles 11:1-3 (same); Psalm 122 (David expresses joy for the house 
of God, where tribes give thanks).
    \53\ 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.'' \54\ Throughout all this history, through the 
unification and monarchical periods, through the revolt and 
diaspora, the Bible taught that the people of Israel remained 
``tribes,'' led by their ``chief fathers,'' \55\ In the New 
Testament, all the peoples of the earth were ``tribes.'' \56\ 
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.
---------------------------------------------------------------------------
    \54\ See 1 Kings 12:2 Chronicles 10-11, 36; 2 Kings 17, 25
    \55\ Ezra 1:5.
    \56\ 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.\57\ 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.\58\ 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.
---------------------------------------------------------------------------
    \57\ Jefferson, Notes, at 221.
    \58\ 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 Treaty of Forth 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.'' \59\ 
all creation came in tribes. Mankind was organized in tribes, 
the Animal Kingdom was organized in ``tribes,'' the ``Vegetable 
Kingdom'' was organized in ``Tribes.'' \60\ To every kind its 
tribe.
---------------------------------------------------------------------------
    \59\ Adams, July 1756 (emphasis added), L.H. Butterfield, et al., 
eds., Diary and Autobiography of John Adams (Cambridge, Mass., 1961), 
I:39.
    \60\ 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 States' power ended and Congress' power began. The 
sole stated purpose of the 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 any 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.'' \61\ 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.
---------------------------------------------------------------------------
    \61\ Federalist 42, in XIV Documentary History of the Ratification 
of the Constitution (J. Kaminiski, ed., 1983) (``Documentary 
History''), 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.'' \62\ 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.'' \63\ 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.\64\ On August 31st, the Convention referred various 
``parts of the Constitution'' (including the Commerce Clause) 
to a ``Committee of eleven,'' including Madison.\65\ Without 
recorded discussion, the Committee recommended that the 
language be simplified to commerce ``with the Indian tribes.'' 
\66\ The Convention accepted the recommendation without debate 
or dissent.\67\
---------------------------------------------------------------------------
    \62\ ``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.
    \63\ 2 Federal Convention, at 321, 324; see also id. at 143 
(Rutledge noted that ``Indian affairs'' should be added to Congress' 
powers).
    \64\ 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.
    \65\ Id. at 481.
    \66\ Id. at 493, 496-97, 503 (emphasis added).
    \67\ 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.'' 
\68\ 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.\69\ 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.
---------------------------------------------------------------------------
    \68\ Federalist 40, 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.
    \69\ 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.'' \70\ Congress understood its power to 
``operate immediately on the persons and interests of 
individual citizens.'' \71\ The actions of the new government 
also show that even when the Framers 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.'' \72\ 
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.
---------------------------------------------------------------------------
    \70\ ``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.
    \71\ Madison, Federalist 40, in documentary History, XV: 406.
    \72\ 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.'' \73\ 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.
---------------------------------------------------------------------------
    \73\ 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 relationships 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 people. Before and after the 
Amendment, Indians were not citizens, they did not vote, they 
did not count for apportionment, 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 people 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,\74\ and Indian nations were treated like alien peoples 
not fully within the jurisdiction of the government:
---------------------------------------------------------------------------
    \74\ 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.\75\
---------------------------------------------------------------------------
    \75\ Cong. Globe, 39th Congress, 1st Sess. 2895.

    Congress debated what language to adopt in order to make 
certain that the special status of the Indian tribes was 
preserved.\76\ 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.\77\
---------------------------------------------------------------------------
    \76\ 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'').
    \77\ 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 board 
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'').\78\
---------------------------------------------------------------------------
    \78\ See Johbnson, 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'' interchangeable: A ``tribe or 
nation,'' he noted, ``means a people distinct from others''--a 
``distinct community,'' Worcester; 31 U.S. (6 Pet.) at 559, 
561.\79\ Like the Founders, Marshall defined an ``Indian 
tribe'' as nothing more than a community, large or small, of 
descendants of the peoples who inhabited the New World before 
the Europeans.
---------------------------------------------------------------------------
    \79\ 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, 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 Supreme 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.\80\
---------------------------------------------------------------------------
    \80\ 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. 
Candelarid, 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, 647 n.7 (1977) (individuals ``anthropologically'' classified 
an 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 identify, 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.'' \81\ 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.'' \82\ 
From time immemorial, Native American communities have defined 
themselves at least in part by family and ancestry.\83\ 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.
---------------------------------------------------------------------------
    \81\ Antelope, 430 U.S. at 646; see Fisher v. District Court, 424 
U.S. 382, 389 (1976); Mancari, 417 U.S. at 553-54; see also Sac & Fox 
Nation, 508 U.S. at 123; United States v. Mazurie, 419 U.S. 544, 557 
(1975).
    \82\ 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).
    \83\ 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,'' 
id., 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 since 
1934: `` `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.'' 
\84\ 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.
---------------------------------------------------------------------------
    \84\ 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. * * *'' \85\ Recently, the Supreme Court acknowledged 
the continued significance of this historic trust 
relationship.\86\
---------------------------------------------------------------------------
    \85\ 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).
    \86\ See Greater New Orleans Broadcasting Ass'n v. United States, 
527 U.S. 173, 193 (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, 72 U.S. 737 
(1866), the Court recognized that the Ohio Shawnees remained a 
``tribe,'' even though tribal property was no longer owned 
communally and the tribe had abandoned Indian customs ``owing 
to the proximity of their white neighbors.'' Id., 72 U.S. at 
755-57.
    Fifty years 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); Candelaria, 271 U.S. at 
439-40, 442--43. 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, 437 U.S. 634 
(1978) 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 had 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'' \87\ or large 
organizations comprised of numerous ``tribes.'' \88\ 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.\89\ Congress' treatment of the Alaska native 
people--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.\90\
---------------------------------------------------------------------------
    \87\ 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.
    \88\ 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.)
    \89\ See John, 437 U.S. at 652-53; Moe v. Confederated Salish & 
Kootenai Tribes, 425 U.S. 463, 480 (1976).
    \90\ Although the Alaska natives' situation is ``distinctly 
different from that of other American Indians,'' Alaska Chapter, 694 
F.2d at 1168-69 n. 10l see Metlakatla Indian Community v. Egan, 369 
U.S. 45, 50-51 (1962), it is ``well established'' that Athabascan 
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'').
---------------------------------------------------------------------------

             demographics 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 Hawai`i. The Commission found that Native Hawaiians, 
like American Indians and Alaska Native, 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 
Hawai`i 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 and Alaska 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 residing 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 thirty-six percent as compared to three 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 
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 thirty percent of the 
median family income in the United States.
    Also in 1995, the Hawai`i 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 
Hawai`i 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 the health 
status of Native Hawaiians was compared only to other 
populations within the State of Hawai`i, 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 Hawai`i, the Office of 
Technology Assessment report contains the following findings:

          The Native Hawaiian population living in Hawai`i 
        consists of two groups, Hawaiians and part-Hawaiians, 
        who are distinctly different in both age distributions 
        and mortality rates. Hawaiians comprise less than 5 
        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 
        34 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 that 
        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 their pattern is also found in both the 
        Hawaiian and part-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 diseases 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, a Native Hawaiian organization 
which oversees the administration of the Federally-authorized 
Native Hawaiian health care systems, 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 Hawai`i 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 Hawai`i (231 out 
of every 100,000 residents), 45 percent higher than that for 
the total State population. Native Hawaiian males have the 
higher cancer mortality rates in the State of Hawai`i 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 Hawai`i. Native Hawaiian females ranked 
highest in the State of Hawai`i for cancers of the lung, liver, 
pancreas, breast, cervix uteri, corpus uteri, stomach, and 
rectum, and for all cancers combined.
     With respect to breast cancer, Native Hawaiians 
have the highest mortality rates in the State of Hawai`i, and 
nationally Native Hawaiians have the third highest mortality 
rates due to breast cancer.
     Native Hawaiians have the highest mortality rates 
from cancer of the cervix and lung cancer in the State of 
Hawai`i, 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 Hawai`i, with full-blooded 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 higher 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 Hawai`i for those eighteen 
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 mortality rate 
for Native Hawaiians from heart disease is 66 percent higher 
than for the entire State of Hawai`i, and Native Hawaiian males 
have the greatest years of productive life lost in the State of 
Hawai`i. 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 Hawai`i. Between 1910 
and 1980, the life expectancy of Native Hawaiians from birth 
has ranged from five to ten years less than that of the overall 
State population average, and the most recent data for 1990 
indicates that Native Hawaiians life expectancy at birth is 
approximately five 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 Hawai`i, 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 
Hawai`i, 44 percent were Native Hawaiians.
     In 1996, Native Hawaiian fetal mortality rates 
comprised 15 percent of all fetal deaths for the State of 
Hawai`i. 32 percent of all fetal deaths occurring in mothers 
under the age of eighteen years were Native Hawaiians, and for 
mothers eighteen through twenty-four 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 achievements 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, the Congress in 1988 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 
ten-year update of findings for the Native Hawaiian Educational 
Assessment Project, finding 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 continue to start 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 over 
        represented 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 under represented 
        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 
                Hawai`i; 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 Hawai`i 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, 
Native Hawaiian fourth-graders ranked thirty-ninth among groups 
of students from thirty-nine States and the District of 
Columbia in reading. Given that Native Hawaiian students rank 
among the lowest groups of students nationally in reading, and 
that Native Hawaiian students rank the lowest among Hawai`i 
students in reading, it is imperative that greater focus be 
placed on beginning reading and early education and literacy in 
Hawai`i.

                                 S. 746

    S. 746 was introduced on April 6, 2001, by Senator Daniel 
Akaka, for himself and Senator Daniel Inouye, and was referred 
to the Committee on Indian Affairs. A House companion measure, 
H.R. 617, was introduced in the House of Representatives by 
Representative Neil Abercrombie, for himself and 
Representatives Patsy Mink, Eni Faleomavaega, James Hansen, 
Dale Kildee, Nick Rahall, and Don Young, and was referred to 
the Committee on Resources.
    In the 106th session of the Congress, a bill which was 
similar in purpose to S. 746, S. 2899, was introduced by 
Senator Akaka, for himself and Senator Inouye, and was referred 
to the Committee on Indian Affairs. A House companion measure 
to S. 2899, H.R. 4904, was introduced in the House of 
Representatives in the 106th session of the Congress. In 
addition to the provisions now contained in S. 746 and H.R. 
617, both bills that were introduced in the 106th Congress 
addressed a specific and detailed process for the 
reorganization of a Native Hawaiian government, in a manner 
similar to that addressed in the Indian Reorganization Act of 
1934.
    For instance, the bills provided for the development of a 
roll of those Native Hawaiians who wished to be involved in the 
organization of a Native Hawaiian government and the 
certification of that roll by the Secretary of the Interior. 
Secondly, the bill provided authority for the Secretary to 
conduct an election for a Native Hawaiian Interim Governing 
Council that would be charged with the development of organic 
governing documents. Once the organic governing documents were 
finalized, the bills provided authority for the Secretary to 
conduct a referendum for the adoption of the organic governing 
documents, and thereafter, authority for the Secretary to 
conduct an election for the election of officers to the Native 
Hawaiian government.
    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 Hawai`i from Monday, August 28, 
2000 through Friday, September 1, 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 ordered favorably reported by the House 
Resources Committee and passed the House on September 26, 2000. 
H.R. 4904 failed to pass the Senate before the sine die 
adjournment of the 106th session of the Congress.
    The findings of S. 746 focus on the history of Native 
Hawaiians and the 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. 746 provides a 
process for the recognition of a Native Hawaiian government by 
the United States for purposes of carrying on a government-to-
government relationship.
    Native Hawaiians are actively engaged in a process of 
reorganizing a Native Hawaiian government. 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. Further, the Secretary is 
to certify that the State of Hawai`i supports the recognition 
by the United States of a Native Hawaiian government for 
purposes of entering into a government-to-government 
relationship. Resolutions of support for legislation which 
provides for the Federal recognition of a Native Hawaiian 
government have been enacted by the Hawai`i state legislature 
in the several sessions of the legislature.\91\ Once the 
Secretary has made these certifications, the bill provides 
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.
---------------------------------------------------------------------------
    \91\ The Hawai`i State Senate and House of Representatives each 
passed resolutions in 2000 and 2001 supporting the recognition of an 
official political relationship between the United States government 
and the Native Hawaiian people, as well as the need to develop a 
government-to-government relationship between a native Hawaiian nation 
and he United States. See H. Con. Res. 41 (2000); S. Res. 45 (2000); H. 
Con. Res. 23 (2001); S. Res. 97 (2001) (reprinted in Appendix A 
hereto).
---------------------------------------------------------------------------
    S. 746 also provides authority for the establishment of a 
United States Office of Native Hawaiian Relations 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 until a Native Hawaiian government is formed. The Office 
would also serve as the primary agent of ongoing efforts to 
effect the reconciliation that is authorized in the Apology 
Resolution. The Office would also serve as lead agency for the 
work of a Native Hawaiian Interagency task Force that is 
authorized to be established in S. 746.

               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. 746 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 recognition of a 
Native Hawaiian government. S. 746 does authorize 
appropriations for the establishment of the U.S. Office of 
Native Hawaiian Relations within the Department of the 
Interior, 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 Act authorizes Indian tribal governments to conduct 
gaming on Indian reservations and lands held in trust by the 
United States for Indian tribes and over which a tribal 
government exercises jurisdiction. 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 Hawai`i, no 
Indian reservations or Indian lands, nor are there any Indian 
reservations or Indian lands over which a tribal government 
exercises jurisdiction. Hawai`i 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 
Hawai`i under the authority of the Indian Gaming Regulatory 
Act.
    In an effort to address concerns about the application of 
the Indian Gaming Regulatory Act, S. 746 provides that nothing 
in S. 746 is to be construed as an authorization for the Native 
Hawaiian government to conduct gaming activities under the 
authority of the Indian Gaming Regulatory Act.

                       explanation of amendments

    As referenced above, in the 106th session of the Congress, 
S. 2899, the bill which was the predecessor bill to s. 746, was 
the subject of six hearings, five in Hawai`i and one in 
Washington, D.C. Following the customary practice of Senate 
committees, the bill was revised based on testimony received 
from those hearings and was introduced as S. 746.
    In section five of S. 746, the Committee responded to 
testimony received on S. 2899 advocating an administratively 
more feasible process for the conduct of the work of the 
Interagency Coordinating Group by designating the Interior 
Department as the single lead agency for the Interagency 
Coordinating Group.
    In S. 2899, a detailed process for the reorganization of a 
Native Hawaiian government was set forth in section 7 of the 
bill. Testimony received by the Committee indicated that it was 
the view of most Native Hawaiians that the process for the 
reorganization of a Native Hawaiian government should be 
determined by the Native Hawaiian people, consistent with the 
Federal policy of self-determination and self-governance for 
the native peoples of the United States. Accordingly, the 
detailed process for the reorganization of a Native Hawaiian 
government was omitted from S. 746.
    Further, because the legislature of the State of Hawai`i 
has consistently adopted resolutions supporting the recognition 
by the United States of a Native Hawaiian governing entity, the 
Committee included a provision which is intended only to 
provide the necessary assurances to the United States that the 
State of Hawai`i supports Federal recognition of a Native 
Hawaiian government. The Committee does not intend that the 
State of Hawai`i have any role in determining the Native 
Hawaiian governing entity that is to be recognized by the 
United States.
    Although, as stated above, the Committee does not believe 
that the Indian Gaming Regulatory Act has any application in 
the State of Hawai`i, language was added to S. 746 to clarify 
the application of the Act. In addition, to address concerns 
that the recognition of a Native Hawaiian government might in 
some way make Native Hawaiians eligible for the programs and 
services provided by the Bureau of Indian Affairs to American 
Indians and Alaska Natives, the Committee has added language to 
make clear that nothing in the Act is to be construed as an 
authorization for eligibility to participate in any programs 
and services provided by the Bureau of Indian Affairs for any 
persons who are not otherwise eligible for such programs or 
services.
    S. 2899 also contained a section ten, which provided that 
``Nothing in this Act is intended to serve as a settlement of 
any claims against the United States, or to affect the rights 
of the Native Hawaiian people under international law.'' While 
S. 746 retains the language of S. 2899 regarding the fact that 
nothing in the Act is intended to serve as a settlement of any 
claims against the United States, the language addressing the 
rights of the Native Hawaiian people under international law 
was removed based upon a legal assessment that the laws of the 
United States do not affect the rights of any American citizens 
under international law.

                      section-by-section analysis

Section 1. Findings

    This section sets 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 Hawai`i. Findings (5) through (7) reflect Congress' 
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 
Hawai`i. 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 that once the Native 
Hawaiian government addresses this issue in its organic 
governing documents, that the definition established by the 
Native Hawaiian government will serve as the definition of 
Native Hawaiian for purposes of this Federal law.
    Ceded Lands--The term ``ceded lands'' is intended to 
include submerged lands and natural resources.

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 for Native 
        Hawaiian Relations

    This provision provides authority for the establishment of 
the United States Office for Native Hawaiian Relations within 
the Office of the 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) continuing the process of 
reconciliation with the Native Hawaiian people, and upon 
recognition of the Native Hawaiian governing entity by the 
United States, continuing the process of reconciliation with 
the Native Hawaiian governing entity; (3) fully integrating the 
principle and practice of meaningful, regular, and appropriate 
consultation with the Native Hawaiian people and the Native 
Hawaiian governing entity prior to taking any actions that may 
have the potential to significantly affect Native Hawaiian 
resources, rights, or lands; (4) consulting with the Native 
Hawaiian Interagency Coordinating Group, other Federal 
agencies, and with relevant agencies of the State of Hawai`i on 
policies, practices, and proposed actions affecting Native 
Hawaiian resources, rights, or lands; and (5) preparing and 
submitting to the Senate Committee on Indian Affairs, Senate 
Committee on Energy and Natural Resources, and House Resources 
Committee on annual report detailing the Interagency 
Coordinating Group that are undertaken with respect to the 
continuing process of reconciliation and to effect meaningful 
consultation with the Native Hawaiian governing entity and 
providing recommendations for any necessary changes to existing 
Federal statutes or regulations promulgated under the authority 
of Federal law.
    It is the intent of the Committee that the United States 
Office for Native Hawaiian Relations serve as a liaison between 
the Native Hawaiian people and the United States for the 
purposes of 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 
Relations 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. Native Hawaiian Interagency Coordinating Group

    This section authorizes the establishment of an Interagency 
Coordinating Group composed of officials from each Federal 
agency, to be designated by the President, and a representative 
from the U.S. Office of Native Hawaiian Relations. The 
Department of Interior is to serve as the lead agency of the 
Coordinating Group. The primary responsibility of the 
Interagency Coordinating Group is to coordinate Federal 
policies or acts that affect Native Hawaiians or impact Native 
Hawaiian resources, rights, or lands. The Coordinating Group is 
also charged with assuring that each Federal agency develops a 
Native Hawaiian consultation policy and participates in the 
development of the report to Congress authorized in section 4.

Section 6. Process for the Federal recognition of the Native Hawaiian 
        governing entity

    Subsection (a) sets forth the recognition by the United 
States that the native Hawaiian people have the right to 
organize for their common welfare and to adopt appropriate 
organic governing documents.
    It is anticipated that in the process of reorganizing a 
Native Hawaiian government, those adult members of the Native 
Hawaiian community who wish to participate in the 
reorganization of a Native Hawaiian government would prepare a 
roll for the purpose of organizing a Native Hawaiian Interim 
Governing Council. The roll would likely 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 Hawai'i 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 might 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, would likely be limited to the adult 
members listed on the roll. It is the intent of the Committee 
that the determination of who is a Native Hawaiian be resolved 
by Native Hawaiians.
    It is also anticipated though not required by Federal law, 
that the adult members on the roll will develop the criteria 
for candidates and the structure of the Interim Governing 
Council. 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.
    The Council might be authorized to represent those on the 
roll in implementing the Act. The Council could be authorized 
to enter into contracts or grants to carry out its 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 might be 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 officers of a Native Hawaiian 
governing entity.
    Subsection (b) sets forth the process for securing Federal 
recognition. Subsection (1) provides that following the 
organization of the Native Hawaiian governing entity, the 
adoption of organic governing documents, and the election of 
officers of the Native Hawaiian governing entity, the duly 
elected officers of the Native Hawaiian governing entity are to 
submit the organic governing documents to the Secretary of the 
Department of the Interior for certification. Subsection (2) 
provides that the Secretary shall make the following 
certifications within 90 days of the date that the duly elected 
officers of the Native Hawaiian governing entity submit the 
organic governing documents to the Secretary:
           That the organic governing documents 
        establish criteria for citizenship in the Native 
        Hawaiian governing entity;
           That the organic governing documents were 
        adopted by a majority of the citizens of the Native 
        Hawaiian governing entity;
           That the organic governing documents provide 
        for the exercise of governmental authorities by the 
        Native Hawaiian governing entity;
           That the organic governing documents provide 
        authority for the Native Hawaiian governing entity to 
        negotiate with Federal, State, and local governments, 
        and other entities;
           That the organic governing documents prevent 
        the sale, disposition, lease, or encumbrance of lands, 
        interests in lands, or other assets of the Native 
        Hawaiian governing entity without the consent of the 
        Native Hawaiian governing entity;
           That the organic governing documents provide 
        for the protection of the civil rights of the citizens 
        of the Native Hawaiian governing entity and all persons 
        subject to the authority of the Native Hawaiian 
        governing entity, and ensure that he Native Hawaiian 
        governing entity exercises its authority consistent 
        with the requirements of section 202 of the Act of 
        April 11, 1968, (25 U.S.C. Sec. 1302); and
          That the organic governing documents are 
        consistent with applicable Federal law and the special 
        trust relationship between the United States and the 
        indigenous native people of the United States.
    If the Secretary determines that any provision of the 
organic governing documents does not comply with applicable 
Federal law, the Secretary shall resubmit the organic governing 
documents to the duly elected officers of the Native Hawaiian 
governing entity along with a justification for each of the 
Secretary's findings as to why he believes the provisions are 
not consistent with such law. The Native Hawaiian governing 
entity is authorized to amend the organic governing documents 
to ensure their compliance with applicable Federal law. After 
the organic governing documents are amended, the Native 
Hawaiian governing entity may resubmit the organic governing 
documents to the Secretary for certification.
    The certifications shall be deemed to have been made if the 
Secretary has not acted within 90 days of the date that the 
duly elected officers of the Native Hawaiian governing entity 
have submitted the organic governing documents of the Native 
Hawaiian governing entity to the Secretary.
    Upon election of the Native Hawaiian governing entity's 
officers and the certifications (or deemed certifications) by 
the Secretary, Federal recognition is extended to the Native 
Hawaiian governing entity.
    Subsection (3) provides 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.

Section 7. Authorization of appropriations

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

Section 8. Reaffirmation of delegation of Federal authority; 
        negotiations

    This section reaffirms the United States' delegation of 
authority to the State of Hawai`i 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 Hawai`i 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. It is the 
Committee's intent that the reference to ``lands, resources and 
assets dedicated to Native Hawaiian use'' include, but not be 
limited to lands set aside under the Hawaiian Homes Commission 
Act and ceded lands as defined in section 2. The Committee 
believes that if an inventory of the ceded lands is required to 
facilitate negotiations addressing ceded lands, then such an 
inventory should be conducted.

Section 9. Applicability of certain Federal laws

    This section provides that nothing is this Act shall be 
construed as an authorization for the Native Hawaiian governing 
entity to conduct gaming activities under the authority of the 
Indian Gaming Regulatory Act or for eligibility to participate 
in any programs and services provided by the Bureau of Indian 
Affairs.

Section 10. 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. 746 was introduced on April 6, 2001, by Senator Daniel 
Akaka, for himself and Senator Daniel Inouye, and was referred 
to the Committee on Indian Affairs. A House companion measure, 
H.R. 617, was introduced in the House of Representatives by 
Representative Neil Abercrombie, for himself and 
Representatives Patsy Mink, Eni Faleomavaega, James Hansen, 
Dale Kildee, Nick Rahall, and Don Young, and was referred to 
the Committee on Resources.
    In the 106th session of the Congress, a bill which was 
similar in purpose to S. 746, S. 2899, was introduced by 
Senator Akaka, for himself and Senator Inouye, and was referred 
to the Committee on Indian Affairs. A House companion measure 
to S. 2899, H.R. 4904, was introduced in the House of 
Representatives in the 106th session of the Congress.
    Five days of hearings were held on S. 2899 and H.R. 4904 in 
joint hearing of the House Resources Committee and the Senate 
Indian Affairs Committee in Hawai`i 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 ordered favorably reported by the House 
Resources Committee, and passed the House on September 26, 
2000. H.R. 4904 failed to pass the Senate before the sine die 
adjournment of the 106th session of the Congress.
    S. 746 was ordered favorably reported to the full Senate by 
the Committee on Indian Affairs on July 24, 2001. H.R. 617 was 
ordered favorably reported to the full House of Representatives 
by the House Committee on Resources on May 16, 2001.

            committee recommendation and tabulation of vote

    The Committee on Indian Affairs, on July 24, 2001, in an 
open business meeting, recommended that the Senate pass S. 746, 
a bill expressing the policy of the United States regarding the 
United States relationship with Native Hawaiians and to provide 
a process for the recognition by the United States of the 
Native Hawaiian governing entity, and for other purposes.

                   cost and budgetary considerations

    The cost estimate of the Congressional Budget Office on S. 
746 is set forth below:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 27, 2001.
Hon. Daniel K. Inouye,
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. 746, a bill 
expressing the policy of the United States regarding the United 
States' relationship with Native Hawaiians and to provide a 
process for the reorganization by the United States of the 
Native Hawaiian governing entity, 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. 
Walker (for federal costs), and Majorie Miller (for the impact 
on state, local, and tribal governments).
            Sincerely,
                                           Steven Lieberman
                                    (For Dan L. Crippen, Director).
    Enclosure.

S. 746--A bill expressing the policy of the United States regarding the 
        United States' relationship with Native Hawaiians and to 
        provide a process for the reorganization by the United States 
        of the Native Hawaiian governing entity, and for other purposes

    S. 746 would establish a process for a Native Hawaiian 
government to be constituted and recognized by the federal 
government. CBO estimates that implementing S. 746 would have 
no significant impact on the federal budget. The bill would not 
affect direct spending or receipts, so pay-as-you-go procedures 
would not apply. S. 746 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. Enacting 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. In addition, 
S. 746 would establish the Native Hawaiian Interagency 
Coordinating Group to coordinate federal programs and policies 
that affect native Hawaiians. Based on information from DOI, 
CBO expects that the agency would require up to five additional 
employees to implement the bill. Therefore, CBO estimates that 
implementing S. 746 would cost less than $500,000 a year, 
subject to the availability of appropriated funds.
    On May 23, 2001, CBO transmitted a cost estimate for H.R. 
617, a similar bill that was ordered reported by the House 
Committee on Resources on May 16, 2001. The two cost estimates 
are identical.
    The CBO staff contacts for this estimate are Lanette J. 
Walker (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.

                        EXECUTIVE COMMUNICATIONS

    Although the Committee requested the views of the 
Administration on S. 746 in March of 2001, the Committee has 
not received a communication from the Administration on S. 746.

                    REGULATORY AND PAPERWORK IMPACT

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate require each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 746 will 
have a minimal impact on regulatory or paperwork requirements.

                        CHANGES IN EXISTING LAW

    The provisions of S. 746 do not effect any change in 
existing law.
      
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                               APPENDIX A

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