[Senate Report 108-405]
[From the U.S. Government Publishing Office]
Calendar No. 796
108th Congress Report
SENATE
2d Session 108-405
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AMENDING THE NATIVE HAWAIIAN HEALTH CARE IMPROVEMENT ACT TO REVISE AND
EXTEND THAT ACT
_______
November 10, 2004.--Ordered to be printed
Filed, under authority of the order of the Senate of October 11, 2004
_______
Mr. Campbell, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 702]
The Committee on Indian Affairs, to which was referred the
bill (S. 702), a bill to amend the Native Hawaiian Health Care
Improvement Act to revise and extend that Act, having
considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.
Purpose
The purpose of S. 702, a bill to provide for the
reauthorization of the Native Hawaiian Health Care Improvement
Act, is to improve the health status of Native Hawaiians
through the continuation of a comprehensive health promotion
and disease prevention effort that involves health education in
Native Hawaiian communities, and the provision of health
services using health care providers trained in western
medicine and traditional Native Hawaiian healers. In areas
where there is an underutilization of existing health care
delivery systems that have the capacity to provide culturally-
relevant health care services, S. 702 provides authority for
the Secretary of the Department of Health and Human Services to
enter into contracts with Native Hawaiian health care systems
to provide health care referral services to Native Hawaiian
patients. S. 702 is intended to assure the continuity of the
health care programs that are provided to Native Hawaiians
under the authority of Public Law 100-579.
As enacted in 1988, the Native Hawaiian Health Care
Improvement Act is premised upon the findings and
recommendations of the Native Hawaiian Health Research
Consortium report to the Secretary of the Department of Health
and Human Services of December, 1985. That report clearly
indicates that the underutilization of existing health care
services by Native Hawaiians can be traced to the absence of
culturally-relevant services in which traditional Native
Hawaiian concepts of healing are lacking, as well as to a
general perception in the Native Hawaiian community that health
care services, which are fundamentally based on concepts of
Western medicine, will not effect the healing or cure of
diseases and illnesses afflicting Native Hawaiian people.
Historical Background
The islands that now compose the State of Hawai`i were
governed by a monarchy of Native Hawaiians until 1893. The
Native Hawaiian government was recognized as an independent
sovereign nation by foreign governments, and treaty
relationships were established with the United States (Treaty
of Friendship, Commerce, and Navigation of 1849; Treaty of
Commercial Reciprocity, January 30, 1875.) Expanded trade with
the United States resulted in increased western influence in
the islands, and in 1893, the government of the Kingdom of
Hawai`i was overthrown in an insurrection engineered by a group
of western businessmen in an effort to secure the annexation of
Hawai`i to the United States. The United States minister in
Hawai`i ordered one company of marines and two companies of
sailors to be landed, and the minister then recognized a new
provisional government even before Queen Liliuokalani's lines
of defense had surrendered. Although the provisional government
sought immediate annexation by the United States, President
Grover Cleveland refused to submit a treaty of annexation to
the Senate, finding that the provisional government lacked the
popular support of the Native Hawaiian population and that the
government would not have been established but for the lawless
and unauthorized military intervention of the United States
(see Pub. L. No. 103-150). Upon the inauguration of William
McKinley as the new President of the United States in 1897,
however, the western businessmen that sought annexation were
able to change the official U.S. position, and in 1898, Hawai`i
became a territory of the United States.
Prior to European contact, it was estimated that there were
400,000 Native Hawaiians in the Hawaiian Islands. By 1919, the
Native Hawaiian population had been reduced to 22,600, and many
were concluding that the native people of Hawai`i were a
``dying race,'' (see S. Rep. No. 108-85, at 13-14 (2004)) and
that if they were to be saved from extinction, they must have
the means of regaining their connection to the land, the
`aina.' Accordingly, in 1920, the Hawaiian Homes Commission Act
was enacted into law by the U.S. Congress, establishing a land
base that could serve as a permanent homeland for Native
Hawaiians and encouraging agricultural pursuits. The Act placed
approximately 203,000 acres under the jurisdiction of the
Hawaiian Homes Commission, a branch of the territorial
government established for the purpose of ``rehabilitating''
persons of at least fifty percent Native Hawaiian ancestry
through a return to pastoral life. The Act also authorized the
Commission to undertake ``activities having to do with the
economic and social welfare of the homesteaders.'' (See
generally Hawaiian Homes Commission Act, 42 Stat. 108 (July 9,
1921))
Hawai`i was admitted into the Union of States in 1959.
Under the Hawaii Admission Act, the title to the lands set
aside under the Hawaiian Homes Commission Act was transferred
from the United States to the State of Hawai`i. The Admissions
Act requires the State to hold the lands ``as a public trust *
* * for the betterment of the conditions of Native Hawaiians *
* * and their use for any other object shall constitute a
breach of trust for which suit may be brought by the United
States'' (Hawaii Statehood Admissions Act, Pub. L. No. 86-3,
Sec. 5(f), 73 Stat. 4 (Mar. 18, 1959)).
Background
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 (S. Rep. No. 108-85 (2004)).
Because the Consortium report's findings as to the health
status of Native Hawaiians were 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 (U.S. Congress, Office of
Technology Assessment, Indian Health Care, OTA-H-290
(Washington, DC: U.S. Government Printing Office, April 1986))
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 five
percent of the total Native Hawaiian population and are
much older than the young and growing part-Hawaiian
populations.
Overall, Native Hawaiians have a death rate that is
thirty-four percent higher than the death rate for the
United States all races, but this composite masks the
great differences that exist between Hawaiians and
part-Hawaiians. Hawaiians have a death rate that is 146
percent higher than the U.S. all races rate. Part-
Hawaiians also have a higher death rate, but only 17
percent greater. A comparison of age-adjusted death
rates for Hawaiians and part-Hawaiians reveals 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 this 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. (Id.)
These findings clearly establish that the health status of
Native Hawaiians is significantly worse than 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 the banning of the use of
traditional healing practices, that was brought about by
western settlement, as well as the influx of western diseases
to which the native people of the Hawaiian Islands lacked
immunities.
In 1998, an organization of Native Hawaiian health care
providers, Papa Ola Lokahi, updated the health care statistics
from the original E Ola Mau report. Additionally Papa Ola
Lokahi extrapolates the data that the Hawai`i State Department
of Health annually gathers on Native Hawaiians 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
(216.8 out of every 100,000 male residents and 191.6
out of every 100,000 female residents), rates that are
21 percent higher than that for the total State male
population (179.0 out of every 100,000 residents) and
64 percent higher than that for the total State female
population (117.0 per 100,000). Native Hawaiian males
have the higher cancer mortality rates in the State of
Hawai`i for cancers of the lung, colon, rectum,
colorectum, and for all cancers combined, and the
highest years of productive life lost from cancer in
the State of Hawai`i. Native Hawaiian females have the
highest cancer mortality rates in the State of Hawai`i
for cancers of the lung, liver, pancreas, breast,
corpus uteri, stomach, colon, 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 third highest mortality
rates due to prostate cancer in the State.
For the year 2000, Native Hawaiians had the highest
mortality rate due to diabetes mellitus in the State of
Hawai`i, with full-blood Hawaiians having a mortality
rate that is 518 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 18
years of age and younger, and 35 percent of all asthma
cases reported, and in 1999, the Native Hawaiian
prevalence rate for asthma was 69 percent higher than
the rate for the total statewide population.
With respect to heart disease, the death rate for
Native Hawaiians is 68 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 20 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 5 to 10 years less than that
of the overall State population average, and the most
recent data for 1990 indicates that Native Hawaiian
life expectancy at birth is approximately 5 years less
than that of the total State population.
With respect to prenatal care, as of 1998, 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
Hawaiians 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 2000, Native Hawaiians had the highest number of
fetal deaths in Hawai`i. Twenty-one percent of all
fetal deaths in the State were associated with
expectant Native Hawaiian mothers and 37 percent of
those Native Hawaiian mothers were under the age of 25
years.
These and other health status statistics contained in the
findings section of S. 702 clearly establish that the health
care challenges that the Native Hawaiian health care systems
were established to address require reauthorization of the
Native Hawaiian Health Care Improvement Act.
Native Hawaiian Health Care Master Plan and Native Hawaiian Health Care
Systems
The concepts embodied in S. 702 are the result of the
Committee's work with Native Hawaiian health care professionals
and others who are dedicated to improving the health status of
Native Hawaiians. It is based on the beliefs of those with whom
the Committee has consulted, that to insure that Native
Hawaiians are able to achieve the healthful harmony of the self
(body, mind, and spirit) or lokahi, with others and all of
nature, and to assure that Native Hawaiians are able to
function effectively as citizens and leaders in their own
homeland, there must be a restoration of cultural traditions,
an integration of traditional healing methods in the health
care delivery system, and a collective effort to restore to the
Native Hawaiian, a sense of self-esteem and self-worth, for his
or her culture, as well as for the individual.
E Ola Mau, a group of Native Hawaiian health care
professionals, proposed that this effort begin with the
development of a health care master plan, based on a bio-
psycho-socio-cultural-political model that would be aimed at
identifying significant events and factors related to specific
health care needs and issues. E Ola Mau proposed that this
master plan be implemented at every societal level (individual,
household, community, county, and state) in the Hawaiian
Islands. It is its goal to have this Native Hawaiian way of
dealing with health, eventually become an institutional part of
the State's health policy for both Native Hawaiian and other
citizens of the State of Hawai`i.
After much debate and careful consideration in the Native
Hawaiian community and amongst those concerned with the health
status of Native Hawaiians, a consensus was reached that Papa
Ola Lokahi, the Native Hawaiian Health Board, should be the
mechanism through which Native Hawaiian health care systems
would be developed, coordinated, administered, monitored, and
continually revised to meet the changing health care needs of
the Native Hawaiian population. Papa Ola Lokahi is currently
composed of five organizations:
(1) The Office of Hawaiian Affairs, an agency of the
State which was established pursuant to the authority
of amendments made to the Constitution of the State of
Hawai`i in 1978 to assure the well-being and to advance
the interests of Native Hawaiians;
(2) E Ola Mau, a nonprofit organization of Native
Hawaiian professionals dedicated to insuring that
Native Hawaiians achieve a healthful harmony of self
(body, mind, and spirit) with others and all of nature,
and become productive citizens and leaders in their
homeland;
(3) Alu Like, a Federally-funded Native Hawaiian
agency that promotes vocational training and the
founding of community-based organizations that promote
health, education, and economic development for Native
Hawaiians;
(4) The University of Hawai`i; and the
(5) The Office of Hawaiian Health within the State
Department of Health.
Papa Ola Lokahi has assumed the primary responsibility of
overseeing the development and maintenance of a Native Hawaiian
Comprehensive Health Care Master Plan. Papa Ola Lokahi also is
the entity responsible for certifying to the Secretary of
Health and Human Services the qualifications and capabilities
of Native Hawaiian organizations that petition the Secretary to
carry out, pursuant to contracts with the Secretary, the
provisions of the Act.
The Native Hawaiian Health Care Act of 1988, Pub. L. No.
100-579, 102 Stat. 2916, authorized Papa Ola Lokahi, the Native
Hawaiian Health Board, to--
Designate a chairman and vice-chairman from
among its member organizations and such other officers
as may be deemed necessary to carry out its
responsibilities under the Act;
Adopt bylaws and such other internal
regulations or procedures as may be deemed necessary to
carry out its responsibilities under the Act;
Certify to the Secretary that a Native
Hawaiian organization meets the definition of ``Native
Hawaiian organization'' as set forth in the Act;
Certify to the Secretary that a Native
Hawaiian organization has the qualifications and
capacity to provide the services or perform contract
requirements pursuant to a contract with the Secretary;
Oversee the development of a comprehensive
Native Hawaiian health care master plan;
Assure the conduct of health status and
health care needs assessments of Native Hawaiian
communities desiring to participate in Native Hawaiian
health care programs; and
Coordinate the activities and functions of
all Native Hawaiian organizations operating health care
programs pursuant to contracts with the Secretary.
The Native Hawaiian Health Care Act of 1988, Pub. L. No.
100-579, 102 Stat. 2916 (Oct. 31, 1988) envisions a
comprehensive health care system that is community-based,
building upon the Native Hawaiian `ohana system\1\ and
incorporating traditional healing (la `au lapa `au) practices
with western medical services to provide a health care system
that will be culturally sensitive and responsive to the needs
of Native Hawaiian communities.
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\1\ The `ohana system is based upon the fundamental unit of
societal interaction for Native Hawaiians in which a family or an
organization is led by a haku (the recognized leader), whose function
is to coordinate and facilitate the expertise and resources of the
various households or affiliated organizations in order to accomplish a
task or resolve a problem. The households or affiliated organizations
are in turn led by a po`o (the head of the household or designated
leader of the organization).
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As originally enacted, Public Law 100-579 authorized the
establishment of Native Hawaiian Healing Centers on each of the
islands comprising the State of Hawai`i, upon the acceptance of
and in consultation with the Native Hawaiian communities on
those islands, and wherever possible, using existing health
care facilities and health care providers now serving the
Native Hawaiian communities on those islands. These centers
were intended to lead and coordinate the development and
implementation of a statewide Native Hawaiian health care
system which would include: (1) a research and monitoring
staff, state-certified neighborhood counselors, outreach
workers and health educators, traditional Native Hawaiian
healers, and Native Hawaiian cultural educators; (2) primary
health care providers; (3) primary health care facilities,
using existing health care facilities where practicable and
acceptable to the local Native Hawaiian community; (4)
participation by the State Department of Health, Office of
Hawaiian Health in the provision of disease prevention and
health promotion programs, as well as a multidisciplinary
approach to Native Hawaiian health care which would include
nursing, dental hygiene, nutrition education, maternal and
infant child care education; and (5) other Federal, State,
county, community, and private organizations and agencies that
could provide services which meet the health care needs of
their respective communities.
The development of the master plan by Papa Ola Lokahi was
intended to include:
(1) Work with Native Hawaiian communities which
support the establishment of a Native Hawaiian Health
Center;
(2) Conducting a community health needs assessment
survey for participating communities;
(3) Facilitating the development, establishment, and
effective functioning of such Centers on the islands of
O`ahu, Moloka`i, Maui, Hawai`i, Lana`i, Kaua`i and
Ni`ihau; and
(4) Coordinating the work of relevant agencies and
organizations to provide participating communities
with:
(a) Direct health care services and health
education, including maternal and child health
care and mental health care;
(b) Instruction in the Native Hawaiian
language, cultural beliefs, and traditions with
an emphasis on health concepts and practices;
(c) Training and education of health care
providers and educators and cultural educators
in health promotion and disease prevention;
(d) Basic and applied research and monitoring
of Native Hawaiian health care approaches to
validate outcomes and create standards of
quality care;
(e) Development of health care services,
training and education that would have a Native
Hawaiian perspective as its primary focus;
(f) Development of Native Hawaiian community
health counselors, outreach workers, educators,
and community health aide training programs;
(g) Prevention-oriented health care services
in medical, dental, nutrition, mental health,
and in other designated areas as needs
assessments may identify as necessary;
(h) Data collection related to prevention of
diseases and illnesses among Native Hawaiians;
(i) Medical and general health-related
research into the diseases that are most
prevalent among Native Hawaiians;
(j) Mental health research in areas of mental
health problems that are most prevalent in the
Native Hawaiian population;
(k) Ongoing health planning for further
development of the Native Hawaiian health care
system; and
(l) The provision of health care referral
services when certain health care services are
not available within the Native Hawaiian Health
Center.
Following enactment of the Native Hawaiian Health Care
Improvement Act, the Papa Ola Lokahi Board incorporated and
began working with health care providers on each island on the
development of a master plan and an island-specific plan for
the provision of primary health care and health care referral
services. Those involved in the planning effort ultimately
determined that the health care needs of Native Hawaiians would
be better served by the establishment of five Native Hawaiian
health care systems which could be composed of as many health
care centers as might be necessary to serve the health care
needs of Native Hawaiians on each island.
Accordingly, Papa Ola Lokahi certified to the Secretary
that five health care systems qualified as Native Hawaiian
organizations for purposes of entering into contracts with the
Secretary, and plans for the provision of primary health care
services or health care referral services were submitted to the
Secretary in 1990. The first contract awards were 13 made in
October of 1991, and since that time, the health care systems
have been engaged not only in the implementation of the plans
approved by the Secretary, but the provision of health care
services. The plans for each health care system vary according
to the availability of and access to existing health care
resources on each island and the need for health care services.
Currently, all five Native Hawaiian health care systems have
become incorporated as 501(c)(3) non-profit health care
organizations.
In general, the capacity to provide critical health care
services exists only on the island of O`ahu, and thus, it has
long been the pattern that if a patient requires
hospitalization and complex surgery or treatment, the patient
would be referred to a health care provider on the island of
O`ahu and would have to incur the costs associated with air
travel to O`ahu. However, it is not uncommon that treatment
requiring advanced medical technology must be secured in the
continental United States.
The Native Hawaiian Health Care Improvement Act provides
authority for the provision of health promotion, disease
prevention, and primary health care services to Native
Hawaiians who reside in the State of Hawai`i. Federal planning
funds first became available in July of 1990. However, Papa Ola
Lokahi incorporated in February 1989 and was able to initiate
its organizing activities in July 1989 with funds provided by
the Hawai`i State legislature. Between July 1989 and December
1990, informational meetings and organizational activities took
place throughout the State, resulting in the establishment or
recognition of the five Native Hawaiian health care systems
which would assume the responsibility for providing services:
(1) Ho`ola Lahui Hawai`i for Kaua`i and Ni`ihau; (2) Ke Ola
Mamo for O`ahu; (3) Na Pu`uwai for Moloka`i and Lana`i; (4) Hui
No Ke Ola Pono for Maui; and (5) Hui Malama Ola Na `Oiwi for
Hawai`i. Papa Ola Lokahi provided planning funds and technical
assistance to these five health care systems, which then
developed their service plans from January through June 1991,
applied for funding under the Native Hawaiian Health Care Act
in July 1991, and were awarded service grants in October of
1991.
The basic set of services that all five health care systems
must provide include: (1) outreach services to inform Native
Hawaiians of the availability of health services; (2) education
in health promotion and disease prevention of the Native
Hawaiian population by Native Hawaiian health care
practitioners, community outreach workers, counselors, and
cultural educators, whenever possible; (3) services of
physicians, physicians assistants, nurse practitioners or,
other health professionals; (4) immunizations; (5) prevention
and control of diabetes, high blood pressure, and otitis media;
(6) pregnancy and infant care; and (7) improvement of
nutrition.
In the initial stages, because the five health care systems
needed to gain experience in managing health services and
because of limited funds, each health care system concentrated
on outreach, health assessments, case management, and disease
prevention and health promotion activities, with the ultimate
objective of providing the full range of health and medical
services that are available through a typical primary health
care center, and working with traditional healers so that their
services would also be more readily available to Native
Hawaiians.
Now that the five island-wide Native Hawaiian health care
systems are established and engaged in the provision of health
care services, Papa Ola Lokahi's role is to provide technical
support and training to the five health care systems, work with
each of the systems to develop a statewide, cooperative Native
Hawaiian health system, develop research activities and
capacities within the five health care systems, and evaluate
how well the objectives of the Native Hawaiian Health Care
Improvement Act are being met.
The goals and objectives, as well as the services provided
by each of the five Native Hawaiian health care systems is
contained in Appendix A of the committee report.
Through the work of the five Native Hawaiian health care
systems, on an annual basis, 20,000 Native Hawaiians continue
to benefit from the range of health care services provided by
the systems.
Native Hawaiian Health Care Professions Scholarships
The Native Hawaiian Health Care Improvement Act also
provides authority for the provision of scholarships to Native
Hawaiians who are seeking higher education opportunities in the
health care professions. The Native Hawaiian Health Scholarship
Program has been administered by the Kamehameha Schools, but S.
702 will transfer administration of these scholarships to Papa
Ola Lokahi.
Scholarships awarded thus far have resulted in: bachelors
of science degrees in nursing, clinical psychology doctoral
degrees, dentists, dental hygienists, osteopathic physicians,
allopathic physicians, masters degrees in public health,
masters degrees in social work, nurse midwives, nurse
practitioners, doctors of psychology, and registered nurses.
Many of the scholarship recipients have completed their studies
and their service payback requirements and are practicing in
the Native Hawaiian community.
Reauthorization Process
In order to assure the maximum involvement of Native
Hawaiians in the development of a bill to reauthorize the
Native Hawaiian Health Care Improvement Act (the Act), from
December of 1997 through January of 1998, eight island `aha
(island-wide conferences) were held involving more than 1,200
individuals in an effort to identify the principle Native
Hawaiian health and wellness issues and concerns. In March
1998, a statewide Native Hawaiian Health and Wellness Summit,
Ka `Uhane Lokahi, was held on the island of O`ahu, bringing
together more than 600 people to identify potential health and
wellness issues and concerns. In January 1999, a Native
Hawaiian Health Forum was convened to discuss major health care
trends and strategies for health care and wellness developed by
the indigenous peoples of North America and Aotearoa (New
Zealand).
In March 1999, the Executive Directors of the Native
Hawaiian health care systems, the members of the Papa Ola
Lokahi Board, and the Director of the Native Hawaiian Health
Scholarship Program met to review the Act and to incorporate
recommendations from the `aha, the summit, and the health forum
for inclusion in a bill to reauthorize the Native Hawaiian
Health Care Improvement Act. Thereafter, a series of public
meetings were held to discuss and review a draft
reauthorization bill and based upon the comments received, the
bill was further refined and then circulated in the Native
Hawaiian community. A final draft of the bill, incorporating
and responding to recommendations received from the Native
Hawaiian community, was submitted to the Congress.
Summary of Major Provisions
S. 702 extends the existing program authorities of the Act
and authorizes appropriations in such sums as may be necessary
through fiscal year 2009. The bill contains extensive findings
on the current health status of Native Hawaiians including the
incidence and mortality rates associated with various forms of
cancer, diabetes, asthma, circulatory diseases, infectious
disease and illness, and injuries, as well as statistics on
life expectancy, maternal and child health, births, teen
pregnancies, fetal mortality, mental health, and health
professions education and training.
The bill further refines the role of Papa Ola Lokahi and
the Native Hawaiian health care systems, providing authority
for the establishment of additional health care systems to
serve the islands of Lana`i and Ni`ihau. The Board of Papa Ola
Lokahi has been expanded to include the five Native Hawaiian
health care systems, the Native Hawaiian Health Task Force, the
Hawai`i State Primary Care Association (which represents the
community health centers), the Native Hawaiian Physicians
Association, and such other organizations as the Papa Ola
Lokahi Board will admit based upon a satisfactory demonstration
of a record of contribution to the health and well-being of
Native Hawaiians.
The 1992 amendments to the Act adopted the relevant health
objectives of the U.S. Surgeon General's Healthy People 2000
objectives as goals to be met by the Native Hawaiian health
care systems. S. 702 establishes new objectives that the Native
Hawaiian health care systems must meet based on the objectives
in the U.S. Surgeon General's Healthy People 2010.
S. 702 proposes that the providers of health care services,
including traditional Native Hawaiian healers, who provide
services under the aegis of the Native Hawaiian health care
systems be treated as members of the Public Health Service for
purposes of Federal Tort Claims Act coverage (28 U.S.C. 1346(b)
and 2671-2680).
The bill also provides authorization for Papa Ola Lokahi to
carry out Native Hawaiian demonstration projects of national
significance in areas such as the education of health
professionals, the integration of western medicine with
complementary health practices including traditional Native
Hawaiian healing practices, the use of tele-wellness and
telecommunications in chronic disease management and health
promotion and disease prevention, the development of an
appropriate model of health care for Native Hawaiians and other
indigenous people, the development of a centralized data base
and information system relating to the health care status,
health care needs, and wellness of Native Hawaiians, and the
establishment of a Native Hawaiian Center of Excellence for
Nursing at the University of Hawai`i at Hilo, a Native Hawaiian
Center of Excellence for Mental Health at the University of
Hawai`i at Manoa, a Native Hawaiian Center of Excellence for
Maternal Health and Nutrition at the Waimanalo Health Center, a
Native Hawaiian Center of Excellence for Research, Training,
and Integrated Medicine at Moloka`i General Hospital, and a
Native Hawaiian Center of Excellence for Complementary Health
and Health Education and Training at the Waianae Coast
Comprehensive Health Center.
The Provision of Federal Programs to Native Hawaiians
In the exercise of the plenary power vested in the Congress
in Article I, section 8, clause 3 of the United States
Constitution, the Congress has exercised its authority to
address the conditions of the aboriginal, indigenous, native
people of the United States, including the aboriginal,
indigenous, native people of the states of Alaska and Hawai`i.
More than one hundred and sixty Federal laws have been enacted
to address the conditions of Native Hawaiians (see for example,
S. Rep. No. 108-85). The authority of the Congress to enact
legislation to address the conditions of Native Hawaiians is
set forth more fully in Appendix B to the committee report.
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' exercise of its 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 over which the
United States subsequently acquired jurisdiction.
The United States has long recognized the existence of 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, and the Congress has enacted laws to give
expression to the respective legal rights and responsibilities
of the Federal government and the native people (see for
example, S. Rep. No. 108-85).
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 by
Congress in 1921 for the benefit of the native people of
Hawai`i under the Hawaiian Homes Commission Act.\2\ In
addition, the State agreed to the imposition of a public trust
upon all of the lands ceded to the State upon admission.\3\ One
of the five purposes for which the public trust was established
is the ``betterment of the conditions of native Hawaiians[.]''
\4\ The Federal authorization for this public trust clearly
anticipated that the State's constitution and laws would
provide for the manner in which the terms of trust would be
carried out.\5\
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\2\ Id., Sec. 4; Haw. Const., Art. XVI, Sec. 7.
\3\ Id., Sec. 5(f); Haw. Const. Art. XII, Sec. 4.
\4\ Id., Sec. 5(f); Haw. Const. Art. XII, Sec. 4.
\5\ Id.
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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 freshwater streams, and to hunt and gather, as well as the
protection of Native Hawaiians' rights to exercise their rights
to self-determination and self-governance, and to preserve
their culture and language, could only be accomplished within
their native homeland, the present 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.
Section-by-Section Analysis
Section 1. Short title
The title of the Act is the Native Hawaiian Health Care
Improvement Reauthorization Act of 2003.
Section 2. Findings
Subsection (a) sets forth the findings of the Congress with
regard to the historical and legal basis for a Federal program
designed to address the health care needs of Native Hawaiians.
Subsection (b) sets forth the unmet needs and serious health
disparities affecting Native Hawaiians, including chronic
diseases and illnesses, infectious diseases and illnesses,
injuries, dental health, life expectancy, maternal and child
health, mental health, and health professions education and
training.
Section 3. Definitions
This section sets forth the definitions of terms used in
the Act.
Section 3(1) defines ``Department'' to mean the Department
of Health and Human Services.
Section 3(2) defines ``disease prevention'' to include
immunizations, control of high blood pressure, control of
sexually transmittable diseases, the prevention and control of
chronic diseases, control of toxic agents, occupational safety
and health, injury prevention, fluoridation of water, control
of infectious agents, and provision of mental health care.
Section 3(3) defines ``health promotion'' to include
pregnancy and infant care, including prevention of fetal
alcohol syndrome, cessation of tobacco smoking, reduction in
the misuse of alcohol and harmful illicit drugs, improvement of
nutrition, improvement in physical fitness, family planning,
control of stress, reduction of major behavioral risk factors
and promotion of healthy lifestyle practices, and integration
of cultural approaches to health and well-being.
Section 3(4) defines ``health service'' as the services of
physicians, physician's assistants, nurse practitioners,
nurses, dentists, and other health care professionals;
diagnostic laboratory and radiologic services; preventive
health services, including perinatal services, well child
services, family planning services, nutrition services, home
health services, sports medicine and athletic training, and
other enhanced health or wellness services; emergency medical
services, including first responders, emergency medical
technicians, and mobile intensive care technicians;
transportation services as required for adequate patient care;
preventive dental services; and pharmaceutical and medicament
services; mental health services, including those of
psychologists and social workers; genetic counseling services;
health administration services, including those services of
health program administrators; health research services,
including those with advanced degrees in medicine, nursing,
psychology, social work, and other related health programs;
environmental health services, including those provided by
epidemiologists, public health officials, medical geographers
and medical anthropologists, and those specializing in
biological, chemical, and environmental health determinants;
primary care services that may lead to specialty or tertiary
care; and complementary healing practices, including those
performed by traditional Native Hawaiian healers.
Section 3(5) defines ``Native Hawaiian'' as any individual
who is a descendant of the aboriginal people who, prior to
1778, occupied and exercised sovereignty in the area that now
constitutes the State of Hawaii as evidenced by genealogical
records, kama`aina (long-term community residents) witness
verification from Native Hawaiian kupuna (elders) or birth
records of the State of Hawai`i or any State or territory of
the United States.
Section 3(6) defines ``Native Hawaiian health care system''
as any of up to 8 entities that has the following
characteristics: is organized under Hawai`i law; provides or
arranges for health services for Native Hawaiians in the State;
is a public or nonprofit private entity; has Native Hawaiians
significantly participating in the planning, management,
provision, monitoring, and evaluation of health services;
addresses the health care needs of an island's Native Hawaiian
population, and; is recognized by Papa Ola Lokahi for the
purpose of planning, conducting, or administering programs,
authorized by this Act for the benefit of Native Hawaiians, and
as having the qualifications and the capacity to provide the
services and meet the requirements under the contract each
Native Hawaiian health care system enters into with the
Secretary or the grant each Native Hawaiian health care system
receives from the Secretary under this Act.
Section 3(7) defines ``Native Hawaiian Health Center'' as
an organization that provides primary health care services and
which Papa Ola Lokahi has certified has met the following
criteria: a governing board with a membership that has a
minimum of fifty-percent (50%) Native Hawaiians; has
demonstrated cultural competency in a predominantly Native
Hawaiian community; has a patient population that is either
made up of individuals at least fifty-percent of whom are
Native Hawaiian or serves not less than 2,500 Native Hawaiian
clients annually.
Section 3(8) defines ``Native Hawaiian Health Task Force''
as a task force established by the State Council of Hawaiian
Homestead Associations that implements health and wellness
strategies in Hawai`i's Native Hawaiian communities.
Section 3(9) defines ``Native Hawaiian organization'' as a
public or nonprofit organization that serves Native Hawaiian
interests and which Papa Ola Lokahi has recognized for purposes
of planning, conducting, or administering programs authorized
under this Act.
Section 3(10) defines ``Office of Hawaiian Affairs'' and
``OHA'' as the governmental entity established under the
Hawai`i State Constitution which is charged with the
responsibility of formulating policy relating to Native
Hawaiian affairs.
Section 3(11) defines ``Papa Ola Lokahi'' as an
organization composed of public and private organizations
focusing on improving the health status of Native Hawaiians. It
is governed by a board, whose members may include
representatives from: E Ola Mau; the Office of Hawaiian
Affairs; Alu Like, Inc.; the University of Hawai`i; the Hawai`i
State Department of Health; the Native Hawaiian Health Task
Force; Hawai`i State Primary Care Association; Ahahui O Na
Kauka; Ho'ola Lahui Hawai`i (or a health care system serving
the islands of Kaua`i or Ni`ihau); Ke Ola Mamo (or a health
care system serving the island of O`ahu); Na Pu`uwai (or a
health care system serving the islands of Molokai and Lana`i);
Hui No Ke Ola Pono (or a health care system serving the island
of Maui); Hui Malama Ola Ha `Oiwi (or a health care system
serving the island of Hawai`i); other Native Hawaiian health
care systems that Papa Ola Lokahi certifies and recognizes; and
such other member organizations as the Board of Papa Ola Lokahi
may admit from time to time, based upon a satisfactory
demonstration of a record of contribution to the health and
well-being of Native Hawaiians. However, organizations will not
be added to Papa Ola Lokahi if the Secretary determines that an
organization has not developed a mission statement with clearly
defined goals and objectives for its contributions to the
Native Hawaiian health care systems and an action plan for
carrying out those goals and objectives.
Section 3(12) defines ``Secretary'' as the Secretary of the
U.S. Department of Health and Human Services.
Section 3(13) defines ``State'' as the State of Hawai`i.
Section 3(14) defines ``traditional Native Hawaiian
healer'' as a practitioner who is of Hawaiian ancestry and has
the knowledge, skills and experience in direct personal health
care of individuals, and whose knowledge, skills, and
experience are based on demonstrated learning of Native
Hawaiian healing practices acquired by direct practical
association with Native Hawaiian elders and the oral traditions
transmitted from generation to generation.
Section 4. Declaration of national Native Hawaiian health policy
This section establishes the policy of the Act.
Section 4 (a) and (b) establish that it is the United
States' policy, in fulfilling its special responsibilities and
legal obligations to the indigenous people of Hawai`i which
result from the unique and historical relationship between the
United States and the indigenous people of Hawai`i, to raise
the health status of Native Hawaiians to the highest
practicable level and to provide existing Native Hawaiian
health care programs with the resources necessary to effectuate
this policy. Section 4 also expresses Congress' intent to raise
Native Hawaiians' health status by 2010 to at least the
standards contained within the Surgeon General's Healthy People
2010, and to incorporate within health programs the following
activities: integration of cultural approaches to health and
well-being; increasing the number of health and allied-health
care providers who can provide culturally competent care;
increasing the use of traditional Native Hawaiian foods in
peoples' diets and dietary preferences including those of
students and the use of traditional foods in school feeding
programs; identifying and instituting Native Hawaiian cultural
values and practices within the corporate cultures of
organizations and agencies providing health services to Native
Hawaiians; facilitating the provision of Native Hawaiian
healing practices by Native Hawaiian healers for those clients
desiring such assistance; supporting training and education
activities and programs in traditional Native Hawaiian healing
practices by Native Hawaiian healers; and demonstrating the
integration of health services for Native Hawaiians,
particularly those that integrate mental, physical, and dental
services in health care.
Section 4(c) directs the Secretary to provide the President
with a report on the progress made toward meeting the national
policy of the Act which will be included in the President's
report to the Congress under section 12.
Section 5. Comprehensive health care master plan for Native Hawaiians
Section 5(a)(1) authorizes the Secretary to make a grant or
enter into a contract with Papa Ola Lokahi for the purpose of
coordinating, implementing, and updating the Native Hawaiian
comprehensive health care master plan which is designed to
promote comprehensive health promotion and disease prevention
services, to maintain and improve Native Hawaiian health
status, and to support community-based initiatives reflective
of holistic health care.
Section 5(a)(2) requires Papa Ola Lokahi and the Office of
Hawaiian Affairs to consult with the Native Hawaiian health
care systems, the Native Hawaiian health centers, and the
Native Hawaiian community in carrying out section 5, and
authorizes Papa Ola Lokahi and the Office of Hawaiian Affairs
to enter into memoranda of understanding or agreement to
acquire joint funding and for purposes of addressing other
issues to accomplish the objectives of this section.
Section 5(a)(3) requires that within eighteen (18) months
of the Act's enactment that Papa Ola Lokahi, in cooperation
with the Office of Hawaiian Affairs and other appropriate State
and Federal agencies, prepare and submit a study report to the
Congress detailing the impact of current Federal and State
health care financing mechanisms and policies on Native
Hawaiians' health and well-being. The report will include the
impact of cultural competency, risk assessment data,
eligibility requirements and exemptions, reimbursement policies
and capitation rates currently in effect for service providers,
and any other information that may be important to improving
the health status of Native Hawaiians as it relates to health
care financing, including barriers to health care. The report's
recommendations will be submitted to the Secretary for review
and consultation with Native Hawaiians.
Section 5(b) authorizes the appropriation of such sums as
may be necessary to coordinate, implement, and update the
master plan and to prepare the health care financing study
report.
Section 6. Functions of Papa Ola Lokahi and Office of Hawaiian Affairs
This section sets forth the functions of Papa Ola Lokahi
and amends the previous Act to include the Office of Hawaiian
Affairs.
Section 6(a)(1) authorizes Papa Ola Lokahi to carry out the
following responsibilities:
(A) Coordinating, implementing, and updating the
comprehensive health care master plan under section 5;
(B) Training and education of individuals providing
health services;
(C) Identifying and researching the diseases that are
most prevalent among Native Hawaiians, including
behavioral, biomedical, epidemiological, and health
services; and,
(D) Developing and maintaining an institutional
review board for all research projects involving all
aspects of Native Hawaiian health.
Section 6(a)(2) authorizes Papa Ola Lokahi to receive
special project funds that may be appropriated for the purpose
of conducting research on the health status of Native Hawaiians
or for the purpose of addressing the health care needs of
Native Hawaiians.
Section 6(a)(3) authorizes Papa Ola Lokahi to serve as a
clearinghouse for the collection and maintenance of data
associated with the health status of Native Hawaiians; the
identification and research into diseases affecting Native
Hawaiians; the availability of Native Hawaiian project funds,
research projects, and publications; the collaboration of
research in Native Hawaiian health; and the timely
dissemination of information pertinent to the Native Hawaiian
health care systems.
Section 6(b) requires the Secretary and the Secretaries of
other Federal departments consult with Papa Ola Lokahi and to
provide Papa Ola Lokahi and the Office of Hawaiian Affairs with
at least one annual accounting of funds and services provided
in carrying out the Act's policy. This accounting will include,
but not be limited to, the following: the amount of funds
expended explicitly for and benefitting Native Hawaiians; the
number of Native Hawaiians impacted by these funds; the
collaborations made with Native Hawaiian groups and
organizations in the expenditure of these funds; and the amount
of funds used for Federal administrative purposes and for the
provision of direct services to Native Hawaiians.
Section 6(c)(1) requires that Papa Ola Lokahi provide
annual recommendations to the Secretary regarding the
allocation of all amounts appropriated under this Act.
Section 6(c)(2) requires that Papa Ola Lokahi, to the
extent possible, coordinate and assist the health care programs
and services to Native Hawaiians.
Section 6(c)(3) requires the Secretary to consult with Papa
Ola Lokahi and make recommendations for Native Hawaiian
representation on the President's Advisory Commission on Asian
Americans and Pacific Islanders.
Section 6(d) authorizes Papa Ola Lokahi to act as a
statewide infrastructure to provide technical support and
coordination of training and technical assistance to the Native
Hawaiian health care systems and the Native Hawaiian health
centers.
Section 6(e)(1) authorizes Papa Ola Lokahi to enter into
agreements or memoranda of understanding with relevant
institutions, agencies, or organizations that are capable of
providing health-related resources or services to the Native
Hawaiians, the Native Hawaiian health care systems, or
resources for carrying out the national policy of this Act.
Section 6(e)(2) addresses health care financing as follows:
Subsection (A) requires that Federal agencies providing
health care financing and health care programs consult with
Native Hawaiians, Papa Ola Lokahi, and organizations providing
Native Hawaiian health care services prior to adopting any
policy or regulation which may impact on service provision or
health insurance coverage. The consultation is to include but
not be limited to identifying the impact of proposed policies,
rules, or regulations.
Subsection (B) requires the State of Hawaii to engage in
meaningful consultation with Native Hawaiians, Papa Ola Lokahi,
and organizations providing Native Hawaiian health care
services prior to making any changes or initiating new
programs.
Subsection (C) authorizes the Office of Hawaiian Affairs,
in concert with Papa Ola Lokahi, to develop consultative,
contractual, or other arrangements with the following: the
Centers for Medicare and Medicaid Services; the agency of the
State which administers or supervises the administration of a
State plan or waiver approved under Title XVIII, XIX, or XXI of
the Social Security Act for payment of all or part of the
health care services to Native Hawaiians who are eligible for
medical assistance under such a State plan or waiver; or with
any other Federal agency or agencies providing Native Hawaiians
with full or partial health insurance. Such arrangements may
include but are not limited to appropriate reimbursement for
health care services including capitation and fee for service
rates for Native Hawaiians who are entitled to insurance, scope
of services provided, or any other matters which enable Native
Hawaiians to maximize health insurance benefits provided by
Federal and State health insurance programs.
Section 6(e)(3) provides that the Department and other
Federal agencies that provide health care services may include
the services of traditional Native Hawaiian healers and
traditional healers providing traditional health care practices
as defined in section 4 of the Indian Health Care Improvement
Act (25 U.S.C. 1603). Such services are to be exempt from
national accreditation reviews.
Section 7. Native Hawaiian health care
This section addresses the Secretary's authority to enter
into contracts and grants with Native Hawaiian health care
systems for the provision of Native Hawaiian health care and
health care referral services and the responsibilities of the
Native Hawaiian health care systems.
Section 7(a) authorizes the Secretary to consult with Papa
Ola Lokahi and make grants to or enter into contracts with one
or more Native Hawaiian health care systems for the purpose of
providing comprehensive health promotion and disease prevention
services, as well as health care services to Native Hawaiians
who desire and are committed to bettering their own health. The
Secretary may enter into grants or contracts with not more than
8 Native Hawaiian health care systems.
Section 7(b) authorizes the Secretary to also make a grant
to, or enter into a contract with, Papa Ola Lokahi for purposes
of planning Native Hawaiian health care systems to serve the
health needs of Native Hawaiian communities on the islands of
O`ahu, Moloka`i, Maui, Hawai`i, Lana`i, Kaua`i, Kaho`lawe, and
Ni`ihau.
Section 7(c) specifies that each qualified entity receiving
funds under section 7(a) must ensure that the following health
services are either provided or provision is arranged for:
outreach services to inform and assist Native Hawaiians in
accessing health services; health promotion and disease
prevention education for Native Hawaiians by, wherever
possible, Native Hawaiian health care practitioners, community
outreach workers, counselors, cultural educators, and other
disease prevention providers; services of individuals providing
health services; collection of data related to the prevention
of diseases and illnesses among Native Hawaiians; and support
of culturally appropriate activities enhancing health and
wellness including land-based, water-based, ocean-based, and
spiritually-based projects and programs. These services may be
provided by traditional Native Hawaiian healers, when
appropriate.
Section 7(d) provides that individuals who provide medical,
dental, or other services under subsection (7)(a)(1) for a
Native Hawaiian health care system shall be treated as if they
were members of the Public Health Service and shall be covered
under the provisions of section 224 of the Public Health
Service Act (42 U.S.C. 233).
Section 7(e) requires that a Native Hawaiian health care
system receiving funds under subsection 7(a) may serve as a
Federal loan repayment facility. This facility must be designed
to enable health and allied-health professionals to remit
payments to loans provided to such professionals under any
Federal loan program.
Section 7(f) specifies that the Secretary may not make a
grant or enter into a contract as authorized under subsection
7(a) unless the qualified entity agrees that the grant or
contract amount will not, directly or through contract, be
expended for the following: health care services except as
described in section 7(c)(1); the purchase or improvement of
real property (other than minor remodeling of existing
improvements to real property); or the purchase of major
medical equipment.
Section 7(g) provides that the Secretary may not make a
grant or enter into a contract with any qualified entity under
subsection 7(a) unless the qualified entity agrees that,
whether health services are provided directly or through
contract, health services under the grant or contract will be
provided regardless of payment ability and the entity will
impose a charge for the delivery of health services which will
be made according to a public schedule of charges and will be
adjusted to reflect the income of the individual involved.
Section 7(h) authorizes the appropriation of sums as may be
necessary to carry out the general and planning grant
activities and health services under subsections 7(a), 7(b),
and 7(c) for fiscal years 2004 through 2009.
Section 8. Administrative grant for Papa Ola Lokahi
This section authorizes the Secretary to make a grant or
enter into a contract with Papa Ola Lokahi for its
administrative functions.
Section 8(a) authorizes the Secretary to make grants to or
enter into contracts with Papa Ola Lokahi for the following:
the coordination, implementation, and appropriate updating of
the comprehensive health care master plan; training and
education for providers of health services; identification of
and research into the diseases that are most prevalent among
Native Hawaiians, including behavioral, biomedical,
epidemiological and health services; a clearinghouse function
for the collection and maintenance of data associated with the
health status of Native Hawaiians, the identification of and
research into diseases affecting Native Hawaiians, and the
availability of Native Hawaiian project funds, research
projects, and publications; the establishment and maintenance
of an institutional review board for all health-related
research involving Native Hawaiians; the coordination of the
health care programs and services provided to Native Hawaiians;
and the administration of special project funds.
Section 8(b) authorizes the appropriation of sums as may be
necessary to carry out the activities in subsection 8(a) for
each of fiscal years 2004 through 2009.
Section 9. Administration of grants and contracts
This section sets forth the terms and conditions under
which the Secretary makes grants or enters into contracts.
Section 9(a) specifies that within any grants made or
contracts entered include terms and conditions that the
Secretary considers necessary or appropriate to ensure that the
grant or contract objectives are achieved.
Section 9(b) requires that the Secretary periodically
evaluate the performance of and compliance with grants and
contracts under this Act.
Section 9(c) restricts the Secretary's authority to make
any grant or enter into any contract under this Act with an
entity unless the entity:
(1) Agrees to establish such procedures for fiscal
control and fund accounting as may be necessary to
ensure proper disbursement and accounting with respect
to the grant or contract;
(2) Agrees to ensure the confidentiality of records
maintained on individuals receiving health services
under the grant or contract;
(3) With respect to health services provided to any
population of Native Hawaiians, a substantial portion
of whom has a limited ability to speak the English
language, has developed and has the ability to carry
out a reasonable plan to provide health services under
the grant or contract through individuals who are able
to communicate with that population in the language of
that population and in the most appropriate cultural
context, and has designated at least one individual,
fluent in both English and the appropriate language, to
assist in carrying out the plan;
(4) With respect to health services that are covered
under title XVIII, XIX, or XXI of the Social Security
Act, including any State plan, or under any other
Federal health insurance plan, if the entity will
provide under the grant or contract any such health
services directly, the entity has entered into a
participation agreement under such plans and the entity
is qualified to receive payments under such plan, or if
the entity will provide under the grant or contract any
such health services through a contract with an
organization, the organization has entered into a
participation agreement under such plan, and the
organization is qualified to receive payments under
such plan; and
(5) Agrees to submit an annual report to the
Secretary and to Papa Ola Lokahi that describes the use
and costs of health services provided under the grant
or contract, including the average cost of health
services per user, and that provides such other
information the Secretary determines to be appropriate.
Section 9(d) addresses the Secretary's evaluation of
contracts entered into by the Secretary.
Subsection (1) provides that when the Secretary's
evaluation reveals that an entity has not complied with or
satisfactorily performed a contract entered into under section
7, that before the contract is renewed the Secretary must
attempt to resolve the areas of noncompliance or unsatisfactory
performance and modify the contract to prevent future
noncompliance or unsatisfactory performance.
Subsection (2) provides that if the Secretary determines
that the noncompliance or unsatisfactory performance cannot be
resolved and prevented in the future, the Secretary shall not
renew that entity's contract and is authorized to enter into a
new section 7 contract with a qualified entity, as defined in
section 7(a)(3), that provides services to the same population
of Native Hawaiians that was served by the entity whose
contract was not renewed.
Subsection (3) specifies that in determining whether to
renew an entity's contract under the Act, the Secretary shall
consider the results of the evaluations undertaken under the
authority of section 9.
Subsection (4) specifies that the contracts the Secretary
enters under this Act must be in accordance with all Federal
contracting laws and regulations, but that the Secretary has
the discretion to negotiate contracts without advertising and
may be exempt from subchapter III of chapter 31, United States
Code.
Subsection (5) specifies that payments made under any
contract entered into under this Act may be made in advance, by
means of reimbursement, or in installments and shall be made on
such conditions as the Secretary deems necessary to carry out
the purposes of this Act.
Section 9(e) provides that for each fiscal year during
which an entity receives or expends funds pursuant to a grant
or contract under the Act, that entity is to submit an annual
report to the Secretary and to Papa Ola Lokahi on the entity's
activities under the grant or contract, the amounts and
purposes for which Federal funds were expended, and such other
information as the Secretary may request. The reports and
records of any entity concerning any grant or contract under
this Act shall be subject to audit by the Secretary, the
Inspector General of the Department of Health and Human
Services, and the Comptroller General of the United States.
Section 9(f) provides that the Secretary shall allow as a
cost of any grant made or contract entered into under this Act,
the cost of an annual private audit by a certified public
accountant.
Section 10. Assignment of personnel
This section addresses the assignment of personnel by the
Secretary.
Section 10(a) authorizes the Secretary to enter into an
agreement with Papa Ola Lokahi or any of the Native Hawaiian
health care systems for assigning personnel from Department of
Health and Human Services with expertise for the purpose of
conducting research or providing comprehensive health promotion
and disease prevention services to Native Hawaiians.
Section 10(b) specifies that any personnel assignment the
Secretary agrees to under the authority of subsection 10(a) is
to be treated as an assignment of Federal personnel to a local
government that is made in accordance with subchapter VI of
chapter 33 of title 5 of the United States Code.
Section 11. Native Hawaiian health scholarships and fellowships
Section 11(a) provides that subject to the availability of
funds appropriated under the authority of subsection 11(c), the
Secretary is to provide funds through a direct grant or a
cooperative agreement with Papa Ola Lokahi for the purpose of
providing scholarship assistance to Native Hawaiian students.
Section 11(b) provides authority for employees of the
Native Hawaiian Health Care Systems and the Native Hawaiian
Health Centers to have a priority for these scholarships.
Section 11(c)(1) specifies that subsection 11(a) is to be
provided in correspondence with the need for each type of
health care professional to serve the Native Hawaiian community
as Papa Ola Lokahi identifies; to the maximum extent
practicable, the Secretary is to select scholarship recipients
from a list of eligible applicants Papa Ola Lokahi submits; the
obligated service requirement for each scholarship recipient is
to be fulfilled through service, in order of priority, in any
one of the Native Hawaiian health care systems; Native Hawaiian
health centers; health professions shortage areas, medically
underserved areas, or geographic areas or facilities similarly
designated by the U.S. Public Health Service in the State of
Hawai`i; a Native Hawaiian organization that serves a
geographical area with a significant Native Hawaiian
population; any public or non-profit organization providing
services to Native Hawaiians; or any of the uniformed services
of the United States. The placement service for a scholarship
shall assign each Native Hawaiian scholarship recipient to one
or more appropriate sites for service in accordance with this
section.
Subsection (E) further specifies that counseling,
retention, and other support services will be available to
scholarship recipients and other scholarship and financial aid
programs recipients enrolled in appropriate health professions
training programs.
Subsection (F) provides that, after consultation with Papa
Ola Lokahi, financial assistance may be provided to scholarship
recipients while they are fulfilling their service requirement
in any one of the Native Hawaiian health care systems or Native
Hawaiian health centers.
Subsection (G) allows for the provision of scholarships to
Native Hawaiians who are enrolled in an appropriate distance
learning program offered by an accredited educational
institution.
Section 11(c)(2) provides that the financial aid provided
through fellowships may be provided by Papa Ola Lokahi to
Native Hawaiian health professionals who are Native Hawaiian
community health representatives, outreach workers, health
program administrators in professional training programs; to
Native Hawaiians who provide health services; or Native
Hawaiians in certificated programs provided by traditional
Native Hawaiian healers. The financial assistance may include a
stipend or reimbursement for costs associated with
participating in the program.
Section 11(c)(3) provides that scholarship recipients in
health professions designated in section 338A of the Public
Health Service Act shall have the same rights and benefits of
members of the National Health Service Corps while fulfilling
their service requirements.
Section 11(c)(4) provides that the financial assistance
provided under section 11 shall be deemed ``Qualified
Scholarships'' for purposes of section 117 of the Internal
Revenue Code of 1986 (26 U.S.C.117).
Section 11(d) authorizes the appropriation of such sums as
may be necessary for the purpose of funding the scholarship
assistance under subsections 11(a) and 11(c)(2) for fiscal
years 2004 through 2009.
Section 12. Report
This section provides that at the time the budget is
submitted, the President is to transmit a report to Congress
for each fiscal year on the progress made in meeting the Act's
objectives. The report should include a review of programs
established or assisted pursuant to the Act and an assessment
and recommendation of additional programs or assistance
necessary to provide health services to Native Hawaiians and to
ensure a health status for Native Hawaiians which are on par
with the general population's health services and health
status.
Section 13. Use of Federal Government facilities and sources of supply
This section authorizes organizations that receive grants
or contracts to have access to Federal property and supplies.
Section 13(a) authorizes the Secretary to allow
organizations, in carrying out their grants or contracts
authorized under the Act, to use existing facilities and
equipment therein or under the Secretary's jurisdiction, under
such terms and conditions as may be agreed upon for their use
and maintenance.
Section 13(b) authorizes the Secretary to donate any
personal or real property determined to be in excess of the
needs of the Department or the General Services Administration
to organizations that receive contracts or grants for purposes
of carrying out such contract or grants.
Section 13 (c) authorizes the Secretary to acquire excess
or surplus Federal government personal or real property for
donation to organizations that receive grants or contracts
under this Act, provided that the Secretary determines that the
property is appropriate for the organization's use for the
purpose for which the contract or grant was authorized.
Section 14. Demonstration projects of national significance
This section authorizes demonstration projects to improve
the health status of Native Hawaiians.
Section 14(a) authorizes the Secretary to consult with Papa
Ola Lokahi and allocate appropriated amounts under this or any
other Act to carry out Native Hawaiian demonstration projects
of national significance. The project areas of interest may
include the following:
(A) The development of a centralized database and
information system relating to Native Hawaiian health
care status, health care needs, and wellness;
(B) The education of health professionals, and other
individuals in higher learning institutions, in health
and allied health programs in healing practices,
including Native Hawaiian healing practices;
(C) The integration of Western medicine with
complementary healing practices including traditional
Native Hawaiian healing practices;
(D) The use of tele-wellness and telecommunications
in chronic and infectious disease management and health
promotion and disease prevention;
(E) The development of appropriate models of health
care for Native Hawaiians and other indigenous people
including the provision of culturally competent health
services, related activities focusing on wellness
concepts, and the development of appropriate kupuna
care programs, and the development of financial
mechanisms and collaborative relationships leading to
universal access to health care; and
(F) the establishment of Native Hawaiian Centers of
Excellence for Nursing at the University of Hawai`i at
Hilo; for Mental Health at the University of Hawai`i at
Manoa; for Maternal Health and Nutrition at the
Waimanalo Health Center; and for Research, Training,
and Integrated Medicine at Moloka`i General Hospital;
and for Complementary Health and Health Education and
Training at the Waianae Coast Comprehensive Health
Center. Papa Ola Lokahi and any centers established
under this paragraph shall be deemed qualified as
Centers of Excellence under the Public Health Service
Act.
Section 14(b) provides that funds allocated for
demonstration projects under subsection 14(a) shall not result
in a reduction of funds required by the Native Hawaiian health
care systems, Native Hawaiian Health Centers, the Native
Hawaiian Health Scholarship Program, or Papa Ola Lokahi to
carry out their respective responsibilities under this Act.
Section 15. Rule of construction
This section specifies that nothing in this Act will be
construed to restrict the authority of the State of Hawai`i to
license health practitioners.
Section 16. Compliance with Budget Act
This section provides that any new spending authority
described in section 401(c)(2)(A) or (B) of the Congressional
Budget Act of 1974 which is provided under the authority of the
Act is to be effective only for any fiscal year to the extent
or in such amounts as are provided in appropriation Acts.
Section 17. Severability
This section specifies that if any provision of the Act or
application of any provision of the Act to any person or
circumstance is held to be invalid, the remainder of the Act
will be unaffected.
Legislative History
S. 702 was introduced on March 25, 2003, by Senator Daniel
K. Inouye, for himself and Senator Daniel K. Akaka, and was
referred to the Committee on Indian Affairs. No hearings were
held on S. 702, however, during the 106th Congress, the
Committee did hold a series of hearings on S. 1929 which is the
predecessor bill to S. 702 and was nearly identical in its
provisions to S. 702. Those hearings were as follows: Moloka`i
and Kaua`i (January 18, 2000); Maui (January 19, 2000); Hilo,
Hawai`i (January 20, 2000); O`ahu (January 21, 2000); Kona,
Hawai`i and Lana`i (March 16, 2000).
Committee Recommendation and Tabulation of Vote
The Committee on Indian Affairs, on May 14, 2003, in an
open business meeting, by a unanimous vote, recommended that
the Senate pass S. 702, a bill to reauthorize and amend the
Native Hawaiian Health Care Improvement Act.
Cost and Budgetary Considerations
The cost estimate for S. 702 as calculated by the
Congressional Budget Office, is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 3, 2003.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 702, the Native
Hawaiian Health Care Improvement Reauthorization Act of 2003.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Alexis
Ahlstrom.
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure.
S.702--Native Hawaiian Health Care Improvement Reauthorization Act of
2003
Summary: S. 702 would reauthorize the Native Hawaiian
Health Care Program, funded from within the Health Resources
and Services Administration's Consolidated Health Center
Program, through 2009.
The bill would authorize the appropriation of such sums as
may be necessary for fiscal years 2004 through 2009. Assuming
the appropriation of the necessary amounts, CBO estimates that
implementing S. 702 would cost about $5 million in 2004 and $53
million over the 2004-2009 period. (That estimate assumes that
annual appropriations are adjusted for inflation. Without such
adjustments, the six-year total would be $50 million.)
The bill would extend provisions under section 224 of the
Public Health Service Act to providers in Hawaiian health
systems. That section authorizes settlements and awards for
tort claims to be paid out of the Treasury's Judgment Fund.
Those payments are considered direct spending, regardless of
whether the health program involved is an entitlement program
or subject to appropriation. CBO estimates those payments would
total less than $500,000 in 2004 and less than $500,000 over
the 2004-2009 period.
S. 702 contains no private-sector mandates as defined in
the Unfunded Mandates Reform Act (UMRA). The bill would require
the state of Hawaii to consult with Naive Hawaiians, Papa Ola
Lokahi (an umbrella organization composed of groups involved in
Native Hawaiian health), and health care organizations that
provide services to Native Hawaiians before making policy
changes or implementing new programs. That requirement would be
an intergovernmental mandate as defined in UMRA, but CBO
estimates that the costs of the mandate would be minimal and
would not exceed the threshold established in that act ($59
million in 2003, adjusted annually for inflation).
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 702 is shown in the following table. The
costs of this legislation would fall within budget functions
550 (health) and 800 (general government).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-------------------------------------------------------
2003 2004 2005 2006 2007 2008 2009
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION \1\
With Adjustments for Inflation
Native Hawaiian Health Center Program Spending Under
Current Law:
Budget Authority \2\................................ 9 0 0 0 0 0 0
Estimated Outlays................................... 7 4 * 0 0 0 0
Proposed Changes:
Estimated Authorization Level \3\................... 0 9 9 10 10 10 10
Estimated Outlays................................... 0 5 9 9 10 10 10
Native Hawaiian Health Center Program Spending Under S.
702:
Estimated Authorization Level....................... 9 9 9 10 10 10 10
Estimated Outlays................................... 7 9 9 9 10 10 10
----------------------------------------------------------------------------------------------------------------
\1\ This bill also would increase direct spending, but by less than $500,000 a year.
\2\ The 2003 level is the amount appropriated for that year for the Native Hawaiian Health Care Program.
\3\ The proposed changes include annual adjustments for inflation for the bill's authorizations of ``such sums
as necessary.'' Without such inflation adjustments, the six-year totals of costs would be about $3 million
lower.
Note.--* = less than $500,000.
Basis of estimate: For the purposes of this estimate, CBO
assumes that the bill will be enacted by the end of fiscal year
2003 and that the necessary appropriations will be provided for
each fiscal year.
Spending subject to appropriation
Native Hawaiian Health Care Program. S. 702 would authorize
the appropriation of such sums as necessary for 2004 through
2009 for the extension of activities carried out under the
Native Hawaiian Health Care Program. These activities include
the provision of health care at Native Hawaiian health centers
and health systems; granting scholarships to students dedicated
to providing health care to Native Hawaiians; administration of
the program; and the development of strategies to improve the
health status of Native Hawaiians. The bill would authorize
increasing from five to eight the number of health systems
receiving grants, and would authorize the establishment of a
fellowship program for health care workers.
CBO estimates that these activities could be carried out
with 2003 appropriation levels adjusted for inflation, plus
additional funding for the increase in the number of health
systems receiving grants. Those systems would be added to the
program gradually over the next few years, according to
information provided by Papa Ola Lokahi. Assuming the
appropriation of $9 million in 2004, and adjustments for
inflation in 2005 through 2009, CBO estimates the cost of these
provisions would be $5 million in 2004 and $53 million over the
2004-2009 period.
Direct spending
Under current law, settlements and tort claims arising from
the actions of licensed heath care providers in federally
funded health centers are paid from the Treasury's Judgment
Fund. The bill would expand that coverage to include tort
claims arising from the actions of licensed providers within
the Native Hawaiian health systems, as well as non-licensed
providers and traditional Hawaiian health providers. Based on
past experience with spending from the Judgment Fund for
providers covered under section 224, as well as information on
the number and license status of newly covered providers, CBO
estimates the cost of this provision to be less than $500,000
in each year and less than $500,000 over the 2004-2009 period.
Impact on state, local, and tribal governments: The bill
would require the state of Hawaii to consult with Native
Hawaiians, Papa Ola Lokahi, and health care organizations that
provide services to Native Hawaiians before making policy
changes or implementing new programs. That requirement would be
an intergovernmental mandate as defined in UMRA, but CBO
estimates that the costs of the mandate would be minimal and
would not exceed the threshold established in that act ($59
million in 2003, adjusted annually for inflation).
Impact on the private sector: S. 702 contains no private-
sector mandates as defined in UMRA.
Estimate prepared by: Federal Costs: Alexis Ahlstrom;
Impact on State, Local, and Tribal Governments: David Conway;
and Impact on the Private Sector: Julie Lee.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Executive Communications
The Committee received no communications from the Executive
branch of government on S. 702.
Regulatory and Paperwork Impact
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires 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. 702 will
have a minimal impact on regulatory or paperwork requirements.
Changes in Existing Law
UNITED STATES CODE ANNOTATED
TITLE 42--THE PUBLIC HEALTH AND WELFARE
CHAPTER 122--NATIVE HAWAIIAN HEALTH CARE
Sec. 11701. Findings
[The Congress finds that:] (a) General Findings.--Congress
finds that--
(1) Native Hawaiians [comprise] begin their story
with the Kumulipo, which details the creation and
inter-relationship of all things, including the
evolvement of Native Hawaiians as healthy and well
people;
(2) Native Hawaiians.--
(A) are a distinct and unique indigenous
people with a historical continuity to the
original inhabitants of the Hawaiian
archipelago [whose society was organized as a
Nation prior to the arrival of the first
nonindigenous people in 1778] within Ke
Moananui, the Pacific Ocean; and
(B) have a distinct society that was first
organized almost 2,000 years ago;
(3) the health and well-being of Native
Hawaiians are intrinsically tied to the deep
feelings and attachment of Native Hawaiians to
their lands and seas,
(4) the long-range economic and social
changes in Hawai`i over the 19th and early 20th
centuries have been devastating to the health
and well-being of Native Hawaiians;
(5) Native Hawaiians have never directly
relinquished to the United States their claims
to their inherent sovereignty as a people or
over their national territory, either through
their monarchy or through a plebiscite or
referendum;
[(2) The] (6) the Native Hawaiian people are
determined to preserve, develop and transmit to future
generations, [their ancestral territory, and their
cultural identity] in accordance with their own
spiritual and traditional beliefs, their customs,
practices, language, [and] social institutions[.],
ancestral territory, and cultural identity;
(7) in referring to themselves, Native Hawaiians use
the term `Kanaka Maoli', a term frequently used in the
19th century to describe the native people of Hawai`i;
[(3)] (8) The constitution and statutes of the State
of Hawai`i[:]--
(A) acknowledge the distinct land rights of
Native Hawaiian people as beneficiaries of the
public lands trust; and
(B) reaffirm and protect the unique right of
the Native Hawaiian people to practice and
perpetuate their cultural and religious
customs, beliefs, practices, and language[.];
[(4) At] (9) at the time of the arrival of the first
nonindigenous people in Hawaii in 1778, the Native
Hawaiian people lived in a highly organized, self-
sufficient, subsistence social system based on communal
land tenure with a sophisticated language, culture, and
religion[.];
[(5) A] (10) a unified monarchical government of the
Hawaiian Islands was established in 1810 under
Kamehameha I, the first King of Hawaii[.];
[(6) Throughout] (11) throughout the 19th century
[and] until 1893, the United States[:]--
(A) recognized the independence of the
Hawaiian Nation;
(B) extended full and complete diplomatic
recognition to the Hawaiian Government; and
(C) entered into treaties and conventions
with the Hawaiian monarchs to govern commerce
and navigation in 1826, 1842, 1849, 1875, and
1887[.];
[(7)] (12) [In the year] in 1893, John L. Stevens,
the United States Minister assigned to the sovereign
and independent Kingdom of Hawai`i, [John L. Stevens,]
conspired with a small group of non-Hawaiian residents
of the Kingdom, including citizens of the United
States, to overthrow the indigenous and lawful
[Government] government of Hawai`i[.];
[(8) In] (13) in pursuance of that conspiracy[,]--
(A) the United States Minister and the naval
representative of the United States caused
armed [naval] forces of the United States Navy
to invade the sovereign Hawaiian Nation in
support of the overthrow of the indigenous and
lawful Government of Hawai`i; and
(B) after that overthrow, the United States
Minister [thereupon] extended diplomatic
recognition of a provisional government formed
by the conspirators without the consent of the
native people of Hawai`i or the lawful
Government of Hawai`i, in violation of--
(i) treaties between the [two nations
and of international law.] Government
of Hawai`i and the United States; and
(ii) international law,
[(9) In] (14) in a message to Congress on December
18,1893, [then] President Grover Cleveland--
(A) reported fully and accurately on [these]
those illegal actions[,];
(B) [and] acknowledged that by [these] those
acts, described by the President as acts of
war, the government of a peaceful and friendly
people was overthrown[,]; and
(C) [the President] concluded that a
[``]`substantial wrong has thus been done which
a due regard for our national character as well
as the rights of the injured people required
that we should endeavor to repair[''.]';
[(10)] (15) Queen Lili`uokalani, the lawful monarch
of Hawai`i, and the Hawaiian Patriotic League,
representing the aboriginal citizens of Hawai`i,
promptly petitioned the United States for redress of
[these] those wrongs and [for] restoration of the
indigenous government of the Hawaiian nation, but [this
petition was not acted upon.] no action was taken on
that petition;
(16) in 1993, Congress enacted Public Law 103-150
(107 Stat.1510), in which Congress--
(A) acknowledged the significance of those
events; and
(B) apologized to Native Hawaiians on behalf
of the people of the United States for the
overthrow of the Kingdom of Hawai`i with the
participation of agents and citizens of the
United States, and the resulting deprivation of
the rights of Native Hawaiians to self-
determination;
[(11) In] (17) in 1898, the United States--
(A) annexed Hawai`i through [the Newlands]
Resolution No. 55 (commonly known as the
`Newlands Resolution') (30 Stat. 750), without
the consent of, or compensation to, the
indigenous people of Hawai`i or [their] the
sovereign government [who were thereby] of
those people; and
(B) denied those people the mechanism for
expression of their inherent sovereignty
through self-government and self-
determination[,] of their lands and ocean
resources[.];
[(12) Through] (18) through the Newlands Resolution
and the [1900 Organic Act, the United States] Act of
April 30, 1900 (commonly known as the `1900 Organic
Act') (31 Stat. 141, chapter 339), Congress--
(A) received [1.75 million] 1,750,000 acres
of [lands] land formerly owned by the Crown and
Government of the Hawaiian Kingdom; and
(B) exempted the [lands] land from then-
existing public land laws of the United States
by mandating that the revenue and proceeds from
[these lands] that land be [``]`used solely for
the benefit of the inhabitants of the Hawaiian
Islands for education and other public
purposes['']', thereby establishing a special
trust relationship between the United States
and the inhabitants of Hawai`i[.];
[(13) In] (19) in 1921, Congress enacted the Hawaiian
Homes Commission Act, 1920 (42 Stat. 108, chapter 42),
which--
(A) designated 200,000 acres of the ceded
public [lands] land for exclusive homesteading
by Native Hawaiians[,]; and
(B) [thereby affirming] affirmed the trust
relationship between the United States and
[the] Native Hawaiians, as expressed by [then]
Secretary of the Interior Franklin K. Lane, who
was cited in the Committee Report of the
[United States] Committee on Territories of the
House of Representatives [Committee on
Territories] as stating, [``]`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.['']';
[(14) In] (20) in 1938, [the United States] Congress
again acknowledged the unique status of the Native
Hawaiian people by including in the Act of June 20,
1938 (52 Stat. 781[ et seq.]), a provision--
(A) to lease [lands] land within the
extension to Native Hawaiians; and
(B) to permit fishing in the area [``]`only
by native Hawaiian residents of said area or of
adjacent villages and by visitors under their
guidance[''.]';
[(15) Under] (21) under the Act [entitled ``An Act to
provide for the admission of the State of Hawaii into
the Union,'' approved March 18, 1959 (73 Stat. 4)] of
March 18, 1959 (48 U.S.C. prec. 491 note; 73 Stat.4),
the United States--
(A) transferred responsibility for the
administration of the Hawaiian [Home Lands]
home lands to the State [of Hawai`i]; but
(B) reaffirmed the trust relationship [which]
that existed between the United States and the
Native Hawaiian people by retaining the
exclusive power to enforce the trust, including
the power to approve land exchanges[,] and
legislative amendments affecting the rights of
beneficiaries under [such] that Act[.];
[(16) Under] (22) under the Act [entitled ``An Act to
provide for the admission of the State of Hawai`i into
the Union'', approved March 18, 1959 (73 Stat. 4)]
referred to in paragraph (21), the United States--
(A) transferred responsibility for
administration over portions of the ceded
public lands trust not retained by the United
States to the State [of Hawai`i]; but
(B) reaffirmed the trust relationship [which]
that existed between the United States and the
Native Hawaiian people by retaining the legal
responsibility of the State for the betterment
of the conditions of Native Hawaiians under
section 5(f) of [the Act entitled ``An Act to
provide for the admission of the State of
Hawai`i into the Union'', approved March 18,
1959 (73 Stat. 4, 6).] that Act (73 Stat. 6);
(23) in 1978, the people of Hawai`i--
(A) amended the constitution of Hawai`i to
establish the Office of Hawaiian Affairs; and
(B) assigned to that Office the authority--
(i) to accept and hold in trust for
the Native Hawaiian people real and
personal property transferred from any
source;
(ii) to receive payments from the
State owed to the Native Hawaiian
people in satisfaction of the pro rata
share of the proceeds of the public
land trust established by section 5(f)
of the Act of March 18, 1959 (48 U.S.C.
prec 491 note, 73 Stat. 6);
(iii) to act as the lead State agency
for matters affecting the Native
Hawaiian people; and
(iv) to formulate policy on affairs
relating to the Native Hawaiian people;
[(17) The] (24) the authority of the Congress under
the [United States] Constitution to legislate in
matters affecting the aboriginal or indigenous
[peoples] people of the United States includes the
authority to legislate in matters affecting the native
[peoples] people of Alaska and Hawai`i[.];
(25) the United States has recognized the authority
of the Native Hawaiian people to continue to work
toward an appropriate form of sovereignty, as defined
by the Native Hawaiian people in provisions set forth
in legislation returning the Hawaiian Island of Kaho
`olawe to custodial management by the State in 1994;
[(18) In] (26) in furtherance of the trust
responsibility for the betterment of the conditions of
Native Hawaiians, the United States has established a
program for the provision of comprehensive health
promotion and disease prevention services to maintain
and improve the health status of the Hawaiian
people[.];
(27) that program is conducted by the Native Hawaiian
Health Care Systems, and Papa Ola Lokahi;
(28) health initiatives implemented by those and
other health institutions and agencies using Federal
assistance have been responsible for reducing the
century-old morbidity and mortality rates of Native
Hawaiian people by--
(A) providing comprehensive disease
prevention;
(B) health promotion activities; and
(C) increasing the number of Native Hawaiians
in the health and allied health professions;
(29) those accomplishments have been achieved through
implementation of--
(A) the Native Hawaiian Health Care Act of
1988 (Public Law 100-579); and
(B) the reauthorization of that Act under
section 9168 of the Department of Defense
Appropriations Act,1993 (Public Law 102-396;
106 Stat. 1948);
[(19) This] (30) the historical and unique legal
relationship between the United States and Native
Hawaiians has been consistently recognized and affirmed
by [the] Congress through the enactment of more than
160 Federal laws [which] that extend to the Native
Hawaiian people the same rights and privileges accorded
to American Indian, Alaska Native, Eskimo, and Aleut
communities, including--
(A) the Native American Programs Act of 1974
[[42 U.S.C.A. 2991 et seq.]] (42 U.S.C. 2991 et
seq.);
(B) the American Indian Religious Freedom Act
[[42 U.S.C.A. 1996]] (42 U.S.C. 1996);
(C) the National Museum of the American
Indian Act [[20 U.S.C.A. Sec. 80q et seq.]] (20
U.S.C. 80q et seq.); and
(D) the Native American Graves Protection and
Repatriation Act [[25 U.S.C.A. 3001 et seq.].]
(25 U.S.C. 3001 et seq.);
[(20) The] (31) the United States has [also]
recognized and reaffirmed the trust relationship to the
Native Hawaiian people through legislation [which] that
authorizes the provision of services to Native
Hawaiians, specifically[,]--
(A) the Older Americans Act of 1965 [[42
U.S.C.A. Sec. 3001 et seq.],] (42 U.S.C. 3001
et seq.);
(B) the Developmental Disabilities Assistance
and Bill of Rights Act Amendments of 1987[,]
(42 U.S.C. 6000 et seq.);
(C) the Veterans' Benefits and Services Act
of 1988[,] (Public Law 100-322);
(D) the Rehabilitation Act of 1973 [[29
U.S.C.A. 701 et seq.],] (29 U.S.C. 701 et
seq.);
(E) the Native Hawaiian Health Care Act of
1988[,] (42 U.S.C. 11701 et seq.);
(F) the Health Professions Reauthorization
Act of 1988[,] (Public Law 100-607,102 Stat.
3122);
(G) the Nursing Shortage Reduction and
Education Extension Act of 1988[,] (Public Law
100-607; 102 Stat. 3153);
(H) the Handicapped Programs Technical
Amendments Act of 1988[,] (Public Law 100-630);
(I) the Indian Health Care Amendments of
1988[,] (Public Law 100-713); and
(J) the Disadvantaged Minority Health
Improvement Act of 1990[.] (Public Law 101-
527);
[(21) The] (32) the United States has [also] affirmed
[the] that historical and unique legal relationship to
the Hawaiian people by authorizing the provision of
services to Native Hawaiians to address problems of
alcohol and drug abuse under the Anti-Drug Abuse Act of
1986[.] (21 U.S.C. 801 note, Public Law 99-570);
(33) in addition, the United States--
(A) has recognized that Native Hawaiians, as
aboriginal, indigenous, native people of
Hawai`i, are a unique population group in
Hawai`i and in the continental United States,
and
(B) has so declared in Office of Management
and Budget Circular 15 in 1997 and Presidential
Executive Order No. 13125, dated June 7, 1999,
and
[(22) Despite] (34) despite [such services,] the
United States having expressed in Public Law 103-150
(107 Stat. 1510) its commitment to a policy of
reconciliation with the Native Hawaiian people for past
grievances--
(A) the unmet health needs of the Native
Hawaiian people [are] remain severe, and
(B) the health status of the Native
[Hawaiians] Hawaiian people continues to be far
below that of the general population of the
United States.
(b) Finding of Unmet Needs and Health Disparities.--
Congress finds that the unmet needs and serious health
disparities that adversely affect the Native Hawaiian people
include the following:
(1) Chronic disease and illness.--
(A) Cancer.--
(i) In general.--With respect to all
cancer--
(I) Native Hawaiians have the
highest cancer mortality rates
in the State (216.8 out of
every 100,000 male residents
and 191.6 out of every 100,000
female residents), rates that
are 21 percent higher than the
rate for the total State male
population (179.0 out of every
100,000 residents) and 64
percent higher than the rate
for the total State female
population (117.0 per 100,000);
(II) Native Hawaiian males
have the highest cancer
mortality rates in the State
for cancers of the lung, colon,
rectum, and colorectum, and for
all cancers combined;
(III) Native Hawaiian females
have the highest cancer
mortality rates in the State
for cancers of the lung, liver,
pancreas, breast, corpus uteri,
stomach, colon, and rectum, and
for all cancers combined;
(IV) Native Hawaiian males
have 8.7 years of productive
life lost as a result of cancer
in the State, the highest years
of productive life lost in that
State, as compared with 6.4
years for all males; and
(V) Native Hawaiian females
have 8.2 years of productive
life lost as a result of cancer
in the State as compared with
6.4 years for all females in
the State;
(ii) Breast cancer.--With respect to
breast cancer--
(I) Native Hawaiians have the
highest mortality rate in the
State from breast cancer (30.79
out of every 100,000
residents), a rate that is 33
percent higher than that for
Caucasian Americans (23.07 out
of every 100,000 residents) and
106 percent higher than that
for Chinese Americans (14.96
out of every 100,000
residents); and
(II) nationally, Native
Hawaiians have the third
highest mortality rate as a
result of breast cancer (25.0
out of every 100,000 residents)
behind African Americans (31.4
out of every 100,000 residents)
and Caucasian Americans (27.0
out of every 100,000
residents).
(iii) Cancer of the cervix.--Native
Hawaiians have the highest mortality
rate as a result of cancer of the
cervix in the State (3.65 out of every
100,000 residents), followed by
Filipino Americans (2.69 out of every
100,000 residents) and Caucasian
Americans (2.61 out of every 100,000
residents).
(iv) Lung cancer.--Native Hawaiian
males and females have the highest
mortality rates as a result of lung
cancer in the State, at 74.79 per
100,000 for males and 47.84 per 100,000
females, which rates are higher than
the rates for the total State
population by 48 percent for males and
93 percent for females.
(v) Prostate cancer.--Native Hawaiian
males have the third highest mortality
rate as a result of prostate cancer in
the State (21.48 out of every 100,000
residents), with Caucasian Americans
having the highest mortality rate as a
result of prostate cancer (23.96 out of
every 100,000 residents).
(B) Diabetes.--With respect to diabetes, in
2000--
(i) Native Hawaiians had the highest
mortality rate as a result of diabetes
mellitus (38.8 out of every 100,000
residents) in the State, which rate is
138 percent higher than the statewide
rate for all racial groups (16.3 out of
every 100,000 residents); and
(ii) full-blood Hawaiians had a
mortality rate as a result of diabetes
mellitus of 93.3 out of every 100,000
residents, which is 518 percent higher
than the rate for the statewide
population of all other racial groups.
(C) Asthma.--With respect to asthma--
(i) in 1990, Native Hawaiians
comprised 44 percent of all asthma
cases in the State for those 18 years
of age and younger, and 35 percent of
all asthma cases reported, and
(ii) in 1999, the Native Hawaiian
prevalence rate for asthma was 129.6
out of every 1,000 residents, which was
69 percent higher than the rate for all
others combined in the State (76.7 out
of every 1,000 residents).
(D) Circulatory diseases.--
(i) Heart disease.--With respect to
heart disease--
(I) the mortality rate for
Native Hawaiians as a result of
heart disease (372.3 out of
every 100,000 residents) is 68
percent higher than the rate
for the entire State (221.9 out
of every 100,000 residents);
and
(II) Native Hawaiian males
have the greatest years of
productive life lost in the
State, because Native Hawaiian
males lose an average of 15.5
years and Native Hawaiian
females lose an average of 8.2
years as a result of heart
disease, as compared with 7.5
years for all males, and 6.4
years for all females, in the
State.
(ii) Hypertension.---With respect to
hypertension--
(I) the mortality rate for
Native Hawaiians as a result of
hypertension (3.5 out of every
100,000 residents) is 84
percent higher than that for
the entire State (1.9 out of
every 100,000 residents);
(II) Native Hawaiians have
substantially higher prevalence
rates of hypertension than--
(aa) those observed
statewide; and and
(bb) those of any
other ethnic group in
Hawai`i; and
(III) the prevalence rate of
hypertension for Native
Hawaiians is 37.9 percent, 11
percent higher than that for
all others in the State (34.1
percent).
(iii) Stroke.--The mortality rate for
Native Hawaiians as a result of stroke
(72.0 out of every 100,000 residents)
is 20 percent higher than that for the
entire State (60 out of every 100,000
residents).
(2) Infectious disease and illness.--With respect to
infectious disease and illness--
(A) in 1998, Native Hawaiians comprised 20
percent of all deaths resulting from infectious
diseases in the State for all ages; and
(B) the incidence of acquired immune
deficiency syndrome for Native Hawaiians is at
least twice as high per 100,000 residents (10.5
percent) than that for any other non-Caucasian
group in the State.
(3) Injuries.--With respect to injuries--
(A) the mortality rate for Native Hawaiians
as a result of injuries (32.0 out of every
100,000 residents) is 16 percent higher than
that for the entire State (27.5 out of every
100,000 residents);
(B) 32 percent of all deaths of individuals
between the ages of 18 and 24 years of age
resulting from injuries were Native Hawaiian;
and
(C) the 2 primary causes of Native Hawaiian
deaths in that age group were motor vehicle
accidents (30 percent) and intentional self-
harm (39 percent).
(4) Dental health.--With respect to dental health--
(A) Native Hawaiian children exhibit among
the highest rates of dental caries in the
United States, and the highest in the State as
compared with the 5 other major ethnic groups
in the State;
(B) the average number of decayed or filled
primary teeth for Native Hawaiian children aged
5 through 9 years was 4.3, as compared with 3.7
for all children in the State and 1.9 for all
children in the United States; and
(C) the proportion of Native Hawaiian
children aged 5 through 12 years with unmet
dental treatment needs (defined as having
active dental caries requiring treatment) is 40
percent, as compared with 33 percent for all
other racial groups in the State.
(5) Life expectancy.--With respect to life
expectancy--
(A) Native Hawaiians have the lowest life
expectancy of all population groups in the
State;
(B) between 1910 and 1980, the life
expectancy of Native Hawaiians from birth has
ranged from 5 to 10 years less than that of the
overall State population average, and
(C) the most recent tables for 1990 show
Native Hawaiian life expectancy at birth (74.27
years) to be about 5 years less than that of
the total State population (78.85 years).
(6) Maternal and child health.--
(A) In general.--With respect to maternal and
child health, for 2000
(i) 39 percent of all deaths of
children under the age of 18 years in
the State were Native Hawaiian; and
(ii) perinatal conditions accounted
for 38 percent of all Native Hawaiian
deaths in that age group.
(B) Prenatal care.--With respect to prenatal
care--
(i) as of 1998, Native Hawaiian women
have the highest prevalence (24
percent) of having had no prenatal care
during the first trimester of
pregnancy, as compared with the 5
largest ethnic groups in the State;
(ii) of the mothers in the State who
received no prenatal care throughout
their pregnancies in 1996, 44 percent
were Native Hawaiian;
(iii) over 65 percent of the
referrals to Healthy Start in fiscal
years 1996 and 1997 were Native
Hawaiian newborns; and
(iv) in every region of the State,
many Native Hawaiian newborns begin
life in a potentially hazardous
circumstance, far higher than any other
racial group.
(C) Births.--With respect to births--
(i) in 1996, 45 percent of the live
births to Native Hawaiian mothers were
infants born to single mothers, a
circumstance which statistics indicate
puts infants at higher risk of low
birth weight and infant mortality;
(ii) in 1996, of the births to Native
Hawaiian single mothers, 8 percent were
low birth weight (defined as a weight
less than 2,500 grams); and
(iii) of all low birth weight infants
born to single mothers in the State, 44
percent were Native Hawaiian.
(D) Teen pregnancies.--With respect to
births--
(i) in 1993 and 1994, Native
Hawaiians had the highest percentage of
teen (individuals who were less than 18
years of age) births (8.1 percent), as
compared with the rate for all other
racial groups in the State (3.6
percent);
(ii) in 1998, nearly 49 percent of
all mothers in the State under 19 years
of age were Native Hawaiian;
(iii) in 1998, Native Hawaiians
comprised 31 percent (1,425) of all
live births to mothers with medical
risk factors in the State (4,559); and
(iv) lower rates of abortion
(approximately 33 percent lower than
for the statewide population) among
Hawaiian women may account, in part,
for that higher percentage of live
births.
(E) Fetal mortality.--With respect to fetal
mortality--
(i) in 2000, Native Hawaiians had the
highest number of fetal deaths in the
State; and
(ii)(I) 21 percent of all fetal
deaths in the State were associated
with expectant Native Hawaiian mothers;
and
(II) 37 percent of those Native
Hawaiian mothers were under the age of
25 years.
(7) Mental health.--
(A) Alcohol and drug abuse.--With respect to
alcohol and drug abuse--
(i) Native Hawaiians represent 38
percent of the total admissions to
substance abuse treatment programs
funded by the Department of Health,
Alcohol, Drugs and Other Drugs of the
State;
(ii) in 2000, the prevalence of
cigarette smoking by Native Hawaiians
was 31.0 percent, a rate that is 57
percent higher than that for the total
population in the State, which is 19.7
percent;,
(iii) Native Hawaiians have the
highest prevalence rate of acute
alcohol drinking (19.6 percent), a rate
that is 40 percent higher than that for
the total population in the State;
(iv) the chronic alcohol drinking
rate among Native Hawaiians is 54
percent higher than that for all other
racial groups in the State;
(v) in 1991, 40 percent of the Native
Hawaiian adults surveyed reported
having used marijuana, as compared with
30 percent for all other racial groups
in the State; and
(vi) 9 percent of the Native Hawaiian
adults surveyed reported that they use
or have used marijuana within the year
preceding the survey, as compared with
6 percent for all other racial groups
in the State.
(B) Crime.--With respect to crime--
(i) in 1998, of the 7,789 arrests
that were made for property crimes in
the State, arrests of Native Hawaiians
comprised 23 percent;
(ii) Native Hawaiians comprised 40
percent of juvenile arrests in 1998,
the largest percentage of all juvenile
arrests in that year;
(iii) in the period of 1996 through
1998, the overrepresentation of Native
Hawaiian juvenile arrests for index
crimes and Part II offenses increased
by 6 percent and 2 percent,
respectively;
(iv) in 1998, Native Hawaiians
represented 22 percent of the 2,423
adults arrested for drug-related
offenses in the State;
(v) Native Hawaiians are
overrepresented in the prison
population in the State;
(vi) of the 2,260 incarcerated Native
Hawaiians, 70 percent are between 20
and 40 years of age;
(vii) in 1995 and 1996, Native
Hawaiians comprised 36.5 percent of the
sentenced felon prison population in
Hawaii, as compared with 20.5 percent
for Caucasian Americans, 3.7 percent
for Japanese Americans, and 6 percent
for Chinese Americans;
(viii) in 2002, Native Hawaiians
comprised 40 percent of the total
sentenced felon population in the
State, as compared with 25 percent for
Caucasian Americans, 12 percent for
Filipino Americans, 6 percent for
Japanese Americans, and 5 percent for
Samoans; and
(ix) based on anecdotal information
from inmates at the Halawa Correction
Facilities, Native Hawaiians are
estimated to comprise between 60 and 70
percent of all inmates in the State.
(8) Obesity.--Native Hawaiians have the highest
prevalence rate of overweightness and obesity (69.4
percent), a rate that is 38 percent higher than that
for the total State population (50.2 percent).
(9) Health professions education and training.--With
respect to health professions education and training--
(A)(i) Native Hawaiians who are at least 25
years of age have a comparable rate of high
school completion as compared with all people
in the State who are at least 25 years of age;
but
(ii) the rate of baccalaureate degree
achievement among Native Hawaiians is 6.9
percent, which is less than the average in the
State (15.76 percent);
(B) Native Hawaiian physicians make up 4
percent of the total physician workforce in the
State; and
(C)(i) in fiscal year 1999, Native Hawaiians
comprised--
(I) 9 percent of those individuals
who earned Bachelor's degrees;
(II) 15 percent of those individuals
who earned 2-year diplomas; and
(III) 6 percent of those individuals
who earned Master's degrees; and
(ii) in 1997, Native Hawaiians comprised less
than 1 percent of individuals who earned
doctoral degrees at the University of Hawai`i.
Sec. 11702. Declaration of [policy] National Native Hawaiian Health
Policy
(a) [Congress] Declaration.--[The] Congress [hereby]
declares that it is the policy of the United States, in
fulfillment of [its] special responsibilities and legal
obligations of the United States to the indigenous people of
Hawaii resulting from the unique and historical relationship
between the United States and the [Government of the]
indigenous people of Hawai`i--
(1) to raise the health status of Native Hawaiians to
the highest [possible] practicable health level; and
(2) to provide [existing] Native Hawaiian health care
programs with all resources necessary to effectuate
[this] that policy.
(b) Intent of Congress.--It is the intent of the Congress
that--[the Nation meet the following health objectives with
respect to Native Hawaiians by the year 2000:]
(1) [Reduce coronary heart disease deaths to no more
than 100 per 100,000.] health care programs having a
demonstrated effect of substantially reducing or
eliminating the overrepresentation of Native Hawaiians
among those suffering from chronic and acute disease
and illness, and addressing the health needs of Native
Hawaiians (including perinatal, early child
development, and family-based health education needs),
shall be established and implemented, and
(2) [Reduce stroke deaths to no more than 20 per
100,000.] the United States--
(A) raise the health status of Native
Hawaiians by the year 2010 to at least the
levels described in the goals contained within
Healthy People 2010 (or successor standards);
and
(B) incorporate within health programs in the
United States activities defined and identified
by Kanaka Maoli, such as--
(i) incorporating and supporting the
integration of cultural 60 approaches
to health and well-being, including
programs using traditional practices
relating to the atmosphere (lewa lani),
land (`aina), water (wai), or ocean
(kai);
(ii) increasing the number of Native
Hawaiian health and allied-health care
providers who provide care to or have
an impact on the health status of
Native Hawaiians;
(iii) increasing the use of
traditional Native Hawaiian foods those
in--
(I) the diets and dietary
preferences of people,
including those of students;
and
(II) school feeding programs;
(iv) identifying and instituting
Native Hawaiian cultural values and
practices within the corporate cultures
of organizations and agencies providing
health services to Native Hawaiians;
(v) facilitating the provision of
Native Hawaiian healing practices by
Native Hawaiian healers for individuals
desiring that assistance;
(vi) supporting training and
education activities and programs in
traditional Native Hawaiian healing
practices by Native Hawaiian healers;
and
(vii) demonstrating the integration
of health services for Native
Hawaiians, particularly those that
integrate mental, physical, and dental
services in health care.
[(3) Increase control of high blood pressure to at
least 50 percent of people with high blood pressure.
[(4) Reduce blood cholesterol to an average of no
more than 200 mg/dl.
[(5) Slow the rise in lung cancer deaths to achieve a
rate of no more than 42 per 100,000.
[(6) Reduce breast cancer deaths to no more than 20.6
per 100,000 women.
[(7) Increase Pap tests every 1 to 3 years to at
least 85 percent of women age 18 and older.
[(8) Increase fecal occult blood testing every 1 to 2
years to at least 50 percent of people age 50 and
older.
[(9) Reduce diabetes-related deaths to no more than
34 per 100,000.
[(10) Reduce the most severe complications of
diabetes as follows:
[(A) end-stage renal disease to no more than
1.4 in 1,000;
[(B) blindness to no more than 1.4 in 1,000;
[(C) lower extremity amputation to no more
than 4.9 in 1,000;
[(D) perinatal mortality to no more than 2
percent; and
[(E) major congenital malformations to no
more than 4 percent.
[(11) Reduce infant mortality to no more than 7
deaths per 1,000 live births.
[(12) Reduce low birth weight to no more than 5
percent of live births.
[(13) Increase first trimester prenatal care to at
least 90 percent of live births.
[(14) Reduce teenage pregnancies to no more than 50
per 1,000 girls age 17 and younger.
[(15) Reduce unintended pregnancies to no more than
30 percent of pregnancies.
[(16) Increase to at least 60 percent the proportion
of primary care providers who provide age-appropriate
preconception care and counseling.
[(17) Increase years of healthy life to at least 65
years.
[(18) Eliminate financial barriers to clinical
preventive services.
[(19) Increase childhood immunization levels to at
least 90 percent of 2-year-olds.
[(20) Reduce the prevalence of dental caries to no
more than 35 percent of children by age 8.
[(21) Reduce untreated dental caries so that the
proportion of children with untreated caries (in
permanent or primary teeth) is no more than 20 percent
among children age 6 through 8 and no more than 15
percent among adolescents age 15.
[(22) Reduce edentulism to no more than 20 percent in
people age 65 and older.
[(23) Increase moderate daily physical activity to at
least 30 percent of the population.
[(24) Reduce sedentary lifestyles to no more than 15
percent of the population.
[(25) Reduce overweight to a prevalence of no more
than 20 percent of the population.
[(26) Reduce dietary fat intake to an average of 30
percent of calories or less.
[(27) Increase to at least 75 percent the proportion
of primary care providers who provide nutrition
assessment and counseling or referral to qualified
nutritionists or dieticians.
[(28) Reduce cigarette smoking prevalence to no more
than 15 percent of adults.
[(29) Reduce initiation of smoking to no more than 15
percent by age 20.
[(30) Reduce alcohol-related motor vehicle crash
deaths to no more than 8.5 per 100,000 adjusted for
age.
[(31) Reduce alcohol use by school children age 12 to
17 to less than 13 percent.
[(32) Reduce marijuana use by youth age 18 to 25 to
less than 8 percent.
[(33) Reduce cocaine use by youth age 18 to 25 to
less than 3 percent.
[(34) Confine HIV infection to no more than 800 per
100,000.
[(35) Reduce gonorrhea infections to no more than 225
per 100,000.
[(36) Reduce syphilis infections to no more than 10
per 100,000.
[(37) Reduce significant hearing impairment to a
prevalence of no more than 82 per 1,000.
[(38) Reduce acute middle ear infections among
children age 4 and younger, as measured by days of
restricted activity or school absenteeism, to no more
than 105 days per 100 children.
[(39) Reduce indigenous cases of vaccine-preventable
diseases as follows:
[(A) Diphtheria among individuals age 25 and
younger to 0;
[(B) Tetanus among individuals age 25 and
younger to 0;
[(C) Polio (wild-type virus) to 0;
[(D) Measles to 0;
[(E) Rubella to 0;
[(F) Congenital Rubella Syndrome to 0;
[(G) Mumps to 500; and
[(H) Pertussis to 1,000; and
[(40) Reduce significant visual impairment to a
prevalence of no more than 30 per 1,000.]
(c) Report.--The Secretary shall submit to the President,
for inclusion in each report required to be [transmitted]
submitted to [the] Congress under section [11710 of this title]
12, a report on the progress made [in each area] toward meeting
[each of the objectives described in subsection (b) of this
section.] the national policy described in this section.
Sec. 11703. Comprehensive health care master plan for Native Hawaiians
(a) Development.--
(1) In general.--The Secretary may make a grant to,
or enter into a contract with, Papa Ola Lokahi for the
purpose of coordinating, implementing, and updating a
Native Hawaiian comprehensive health care master plan
that is designed--
(A) to promote comprehensive health promotion
and disease prevention services;
(B) [and] to maintain and improve the health
status of Native Hawaiians; and [The master
plan shall be based upon an assessment of the
health care status and health care needs of
Native Hawaiians. To the extent practicable,
assessments made as of the date of such grant
or contract shall be used by Papa Ola Lokahi,
except that any such assessment shall be
updated as appropriate.]
(C) to support community-based initiatives
that are reflective of holistic approaches to
health.
(2) Consultation.--
(A) In general.--In carrying out this
section, Papa Ola Lokahi and the Office of
Hawaiian Affairs shall consult with
representatives of--
(i) the Native Hawaiian health care
systems;
(ii) the Native Hawaiian health
centers; and
(iii) the Native Hawaiian community.
(B) Memoranda of understanding.--Papa Ola
Lokahi and the Office of Hawaiian Affairs may
enter into memoranda of understanding or
agreement for the purpose of acquiring joint
funding, and for other such purposes as are
necessary, to accomplish the objectives of this
section.
(3) Health care financing study report.--
(A) In general.--Not later than 18 months
after the date of enactment of the Native
Hawaiian Health Care Improvement
Reauthorization Act of 2003, Papa Ola Lokahi,
in cooperation with the Office of Hawaiian
Affairs and other appropriate agencies and
organizations in the State (including the
Department of Health and the Department of
Human Services of the State) and appropriate
Federal agencies (including the Centers for
Medicare and Medicaid Services), shall submit
to Congress a report that describes the impact
of Federal and State health care financing
mechanisms and policies on the health and well-
being of Native Hawaiians.
(B) Components.--The report shall include--
(i) information concerning the impact
on Native Hawaiian health and well-
being of--
(I) cultural competency;
(II) risk assessment data,
(III) eligibility
requirements and exemptions;
and
(IV) reimbursement policies
and capitation rates in effect
as of the date of the report
for service providers;
(ii) such other similar information
as may be important to improving the
health status of Native Hawaiians, as
that information relates to health care
financing (including barriers to health
care); and
(iii) recommendations for submission
to the Secretary, for review and
consultation with the Native Hawaiian
community.
(b) Authorization of Appropriations.--There are authorized
to be appropriated such sums as [may be] are necessary to carry
out subsection (a) [of this section].
Sec. 11704. Functions of Papa Ola Lokahi and Office of Hawaiian Affairs
(a) [Responsibility] In General.--Papa Ola Lokahi--
(1) shall be responsible for [the]--
[(1)] (A) the coordination, implementation,
and updating, as appropriate, of the
comprehensive health care master plan
[developed pursuant to] under section [11703 of
this title] 5;
[(2)] (B) the training and education of
individuals providing health services [for the
persons described in section 11705(c)(1)(B) of
this title];
[(3)] (C) the identification of and research
(including behavioral, biomedical,
epidemiological, and health service research)
into the diseases that are most prevalent among
Native Hawaiians[, including behavioral,
biomedical, epidemiological, and health
services]; and
(D) the development and maintenance of an
institutional review board for all research
projects involving all aspects of Native
Hawaiian health, including behavioral,
biomedical, epidemiological, and health service
research;
(2) may receive special project funds (including
research endowments under section 736 of the Public
Health Service Act (42 U.S.C. 293)) made available for
the purpose of--
(A) research on the health status of Native
Hawaiians; or
(B) addressing the health care needs of
Native Hawaiians; and
(3) shall serve as a clearinghouse for--
(A) the collection and maintenance of data
associated with the health status of Native
Hawaiians;
(B) the identification and research into
diseases affecting Native Hawaiians;
(C) the availability of Native Hawaiian
project funds, research projects, and
publications;
(D) the collaboration of research in the area
of Native Hawaiian health; and
(E) the timely dissemination of information
pertinent to the Native Hawaiian health care
systems.
[(4) the development of an action plan outlining the
contributions that each member organization of Papa Ola
Lokahi will make in carrying out the policy of this
chapter.]
[(b) Special Project Funds.--Papa Ola Lokahi [is authorized
to] may receive special project funds that may be appropriated
for the purpose of research on the health status of Native
Hawaiians or for the purpose of addressing the health care
needs of Native Hawaiians.]
(b) Consultation.--
(1) In general.--The Secretary and the Secretary of
each other Federal agency shall--
(A) consult with Papa Ola Lokahi; and
(B) provide Papa Ola Lokahi and the Office of
Hawaiian Affairs, at least once annually, an
accounting of funds and services provided by
the Secretary to assist in accomplishing the
purposes described in section 4.
(2) Components of accounting.--The accounting under
paragraph (1)(B) shall include an identification of--
(A) the amount of funds expended explicitly
for and benefiting Native Hawaiians;
(B) the number of Native Hawaiians affected
by those funds;
(C) the collaborations between the applicable
Federal agency and Native Hawaiian groups and
organizations in the expenditure of those
funds; and
(D) the amount of funds used for--
(i) Federal administrative purposes;
and
(ii) the provision of direct services
to Native Hawaiians.
[(c) Clearinghouse.--Papa Ola Lokahi shall serve as a
clearinghouse for:
[(1) the collection and maintenance of data
associated with the health status of Native Hawaiians;
[(2) the identification and research into diseases
affecting Native Hawaiians;
[(3) the availability of Native Hawaiian project
funds, research projects and publications;
[(4) the collaboration of research in the area of
Native Hawaiian health; and
[(5) the timely dissemination of information
pertinent to the Native Hawaiian health care systems.]
(c) Fiscal Allocation and Coordination of Programs and
Services.--
(1) Recommendations.--Papa Ola Lokahi shall provide
annual recommendations to the Secretary with respect to
the allocation of all amounts made available under this
Act.
(2) Coordination.--Papa Ola Lokahi shall, to the
maximum extent practicable, coordinate and assist the
health care programs and services provided to Native
Hawaiians under this Act and other Federal laws.
(3) Representation on commission.--The Secretary, in
consultation with Papa Ola Lokahi, shall make
recommendations for Native Hawaiian representation on
the President's Advisory Commission on Asian Americans
and Pacific Islanders.
[(d) Coordination of Programs and Services.--Papa Ola
Lokahi shall, to the maximum extent possible, coordinate and
assist the health care programs and services provided to Native
Hawaiians.]
[(e)] (d) Technical Support.--Papa Ola Lokahi shall [act as
a] provide statewide infrastructure to provide technical
support and coordination of training and technical assistance
to--
(1) the Native Hawaiian health care systems; and
(2) the Native Hawaiian health centers.
[(f)] (e) Relationships with Other Agencies.--
(1) Authority.--Papa Ola Lokahi [is authorized to] may
enter into agreements or memoranda of understanding
with relevant institutions, agencies, or organizations
that are capable of providing--
(A) health-related resources or services to
Native Hawaiians and the Native Hawaiian health
care systems; or
(B) resources or services for the
implementation of the national policy described
in section 4.
(2) Health care financing.--
(A) Federal consultation.--
(i) In general.--Before adopting any
policy, rule, or regulation that may
affect the provision of services or
health insurance coverage for Native
Hawaiians, a Federally agency that
provides health care financing and
carries out health care programs
(including the Centers for Medicare and
Medicaid Services) shall consult with
representatives of--
(I) the Native Hawaiian
community;
(II) Papa Ola Lokahi; and
(III) organizations providing
health care services to Native
Hawaiians in the State.
(ii) Identification of effects.--Any
consultation by a Federal agency under
clause (i) shall include an
identification of the effect of any
policy, rule, or regulation proposed by
the Federal agency.
(B) State consultation.--Before making any
change in an existing program or implementing
any new program relating to Native Hawaiian
health, the State shall engage in meaningful
consultation with representatives of--
(i) the Native Hawaiian community;
(ii) Papa Ola Lokahi; and
(iii) organizations providing health
care services to Native Hawaiians in
the State.
(C) Consultation on federal health insurance
programs.--
(i) In general.--The Office of
Hawaiian Affairs, in collaboration with
Papa Ola Lokahi, may develop
consultative, contractual, or other
arrangements, including memoranda of
understanding or agreement, with--
(I) the Centers for Medicare
and Medicaid Services;
(II) the agency of the State
that administers or supervises
the administration of the State
plan or waiver approved under
title XVIII, XIX, or XXI of the
Social Security Act (42 U.S.C.
1395 et seq.) for the payment
of all or a part of the health
care services provided to
Native Hawaiians who are
eligible for medical assistance
under the State plan or waiver;
or
(III) any other Federal
agency providing full or
partial health insurance to
Native Hawaiians.
(ii) Contents of arrangements.--An
arrangement under clause (i) may
address--
(I) appropriate reimbursement
for health care services,
including capitation rates and
fee-for-service rates for
Native Hawaiians who are
entitled to or eligible for
insurance;
(II) the scope of services;
or
(III) other matters that
would enable Native Hawaiians
to maximize health insurance
benefits provided by Federal
and State health insurance
programs.
(3) Traditional healers.--
(A) In general.--The provision of health
services under any program operated by the
Department of another Federal agency (including
Department of Veterans Affairs) may include the
services of--
(i) traditional Native Hawaiian
healers; or
(ii) traditional healers providing
traditional health care practices (as
those terms are defined in section 4 of
the Indian Health Care Improvement Act
(25 U.S.C. 1603).
(B) Exemption.--Services described in
subparagraph (A) shall be exempt from national
accreditation reviews, including reviews
conducted by--
(i) the joint Commission on
Accreditation of Healthcare
Organizations; and
(ii) the Commission on Accreditation
of Rehabilitation Facilities.
Sec. 11705. Native Hawaiian health care [systems]
(a) Comprehensive Health Promotion, Disease Prevention, and
[Primary] Other Health Services.--
(1)[(A)] Grants and contracts.--The Secretary, in
consultation with Papa Ola Lokahi, may make grants to,
or enter into contracts with 1 or more Native Hawaiian
health care systems [, any qualified entity] for the
purpose of providing comprehensive health promotion and
disease prevention services, as well as [primary] other
health services, to Native Hawaiians who desire and are
committed to bettering their own health.
[(B)] (2) Limitation on number of entities.--[In
making grants and entering into contracts under this
paragraph, the Secretary shall give preference to
Native Hawaiian health care systems and Native Hawaiian
organizations and, to the extent feasible, health
promotion and disease prevention services shall be
performed through Native Hawaiian health care systems.]
The Secretary may make a grant to, or enter into a
contract with, not more than 8 Native Hawaiian health
care systems under this subsection for any fiscal year.
[2] (b) Planning Grant or Contract.--In addition to
[paragraph (1)] grants and contracts under subsection (a), the
Secretary may make a grant to, or enter into a contract with,
Papa Ola Lokahi for the purpose of planning Native Hawaiian
health care systems to serve the health needs of Native
Hawaiian communities on each of the islands of O`ahu, Moloka`i,
Maui, Hawai`i, Lana`i, Kaua`i, Kaho`lawe, and Ni`ihau in the
State [of Hawai`i].
[(b) Qualified Entity.--An entity is a qualified entity for
purposes of subsection (a)(1) of this section if the entity is
a Native Hawaiian health care system.]
(c) Health Services To Be Provided.--
(1) In general.--Each recipient of funds under
subsection (a)[(1) of this section shall] may provide
or arrange for--[the following services:]
(A) outreach services to inform and assist
Native Hawaiians [of the availability of] in
accessing health services;
(B) education in health promotion and disease
prevention [of the] for Native [Hawaiian
population by] Hawaiians that, wherever
[possible] practicable, is provided by--
(i) Native Hawaiian health care
practitioners[,];
(ii) community outreach workers[,];
(iii) counselors[, and];
(iv) cultural educators; and
(v) other disease prevention
providers;
(C) services of [physicians, physicians'
assistants, nurse practitioners or other health
professionals] individuals providing health
services;
(D) [immunizations] collection of data
relating to the prevention of diseases and
illnesses among Native Hawaiians; and
(E) [prevention and control of diabetes, high
blood pressure, and otitis media;] support of
culturally appropriate activities that enhance
health and wellness, including land-based,
water-based, ocean-based, and spiritually-based
projects and programs.
[(F) pregnancy and infant care; and
[(G) improvement of nutrition.
[(2) In addition to the mandatory services under
paragraph (1), the following services may be provided
pursuant to subsection (a)(1) of this section:
[(A) identification, treatment, control, and
reduction of the incidence of preventable
illnesses and conditions endemic to Native
Hawaiians;
[(B) collection of data related to the
prevention of diseases and illnesses among
Native Hawaiians; and
[(C) services within the meaning of the terms
``health promotion'', ``disease prevention'',
and ``primary health services'', as such terms
are defined in section 11711 of this title,
which are not specifically referred to in
paragraph (1) of this subsection.]
[(3)] (2) Traditional healers.--The health care
services referred to in [paragraphs (1) and (2)]
paragraph (1) [which] that are provided under grants or
contracts under subsection (a)[(1) of this section] may
be provided by traditional Native Hawaiian healers, as
appropriate.
[(d) Limitation of Number of Entities.--During a fiscal
year, the Secretary under this chapter may make a grant to, or
hold a contract with, not more than 5 Native Hawaiian health
care systems.]
(d) Federal Tort Claims Act.--An individual who provides a
medical, dental, or other service referred to in subsection
(a)(1) for a Native Hawaiian health care system, including a
provider of a traditional Native Hawaiian healing service,
shall be--
(1) treated as if the individual were a member of the
Public Health Service; and
(2) subject to section 224 of the Public Health
Service Act (42 U.S.C. 233).
[(e) Matching Funds.--
[(1) The Secretary may not make a grant or provide
funds pursuant to a contract under subsection (a)(1) of
this section to a Native Hawaiian health care system--
[(A) in an amount exceeding 83.3 percent of
the costs of providing health services under
the grant or contract; and
[(B) unless the Native Hawaiian health care
system agrees that the Native Hawaiian health
care system or the State of Hawai`i will make
available, directly or through donations to the
Native Hawaiian health care system, non-Federal
contributions toward such costs in an amount
equal to not less than $1 (in cash or in kind
under paragraph (2) for each $5 of Federal
funds provided in such grant or contract.
[(2) Non-Federal contributions required in paragraph
(1) may be in cash or in kind, fairly evaluated,
including plant, equipment, or services. Amounts
provided by the Federal Government or services assisted
or subsidized to any significant extent by the Federal
Government may not be included in determining the
amount of such non-Federal contributions.
[(3) The Secretary may waive the requirement
established in paragraph (1) if--
[(A) the Native Hawaiian health care system
involved is a nonprofit private entity
described in subsection (b) of this section;
and
[(B) the Secretary, in consultation with Papa
Ola Lokahi, determines that it is not feasible
for the Native Hawaiian health care system to
comply with such requirement.]
(e) Site for Other Federal Payments.--
(1) In general.--A Native Hawaiian health care system
that receives funds under subsection (a) may serve as a
Federal loan repayment facility.
(2) Remission of payments.--A facility described in
paragraph (1) shall be designed to enable health and
allied-health professionals to remit payments with
respect to loans provided to the professionals under
any Federal loan program.
(f) Restriction on Use of Grant and Contract Funds.--
The Secretary [may] shall not make a grant to, or enter
into a contract with, [any] an entity under subsection
(a) [(1) of this section] unless the entity agrees
that[,] amounts received [pursuant to such subsection]
under the grant or contract will not, directly or
through contract, be expended--
(1) for any [purpose] service other than [the
purposes] a service described in subsection (c) [of
this section] (1);
[(2) to provide inpatient services;
[(3) to make cash payments to intended recipients of
health services; or]
[(4)] (2) to purchase or improve real property (other
than minor remodeling of existing improvements to real
property); or
(3) to purchase major medical equipment.
(g) Limitation on Charges for Services.--The Secretary
[may] shall not make a grant to, or enter into a contract with,
[any] an entity under subsection (a)[(1) of this section]
unless the entity agrees that, whether health services are
provided directly or [through] under a contract--
(1) any health [services] service under the grant or
contract will be provided without regard to the ability
of an individual receiving the health service to pay
for the health [services] service; and
(2) the entity will impose [a charge] for the
delivery of such a health [services, and such charge]
service a charge that is--
(A) [will be] made according to a schedule of
charges that is made available to the public,
and
(B) [will be] adjusted to reflect the income
of the individual involved.
(h) Authorization of Appropriations.--
(1) General grants.--There are authorized to be
appropriated such sums as [may be] are necessary to
carry out subsection (a) for each of fiscal years
[1993] 2004 through [2001] 2009 [to carry out
subsection (a)(1) of this section].
(2) Planning grants.--There are authorized to be
appropriated such sums as [may be] are necessary to
carry out subsection [(a)(2) of this section] (b) for
each of fiscal years 2004 through 2009.
(3) Health services.--There are authorized to be
appropriated such sums as are necessary to carry out
subsection (c) for each of fiscal years 2004 through
2009.
Sec. 11706. Administrative grant for Papa Ola Lokahi
(a) In general.--In addition to any other grant or contract
under this [chapter] Act, the Secretary may make grants to, or
enter into contracts with, Papa Ola Lokahi for--
(1) coordination, implementation, and updating (as
appropriate) of the comprehensive health care master
plan developed [pursuant to section 11703 of this
title] under section 5;
(2) training and education for [the persons described
in section 11705(c)(1)(B) of this title] providers of
health services;
(3) identification of and research [into the diseases
that are most prevalent among Native Hawaiians,]
(including behavioral, biomedical, [epidemiological]
epidemiologic, and health [services] service research)
into the diseases that are most prevalent among Native
Hawaiians;
[(4) the development of an action plan outlining the
contributions that each member organization of Papa Ola
Lokahi will make in carrying out the policy of this
chapter;]
[(5)] (4) a clearinghouse function for--
(A) the collection and maintenance of data
associated with the health status of Native
Hawaiians;
(B) the identification and research into
diseases affecting Native Hawaiians; and
(C) the availability of Native Hawaiian
project funds, research projects and
publications;
(5) the establishment and maintenance of an
institutional review board for all health-related
research involving Native Hawaiians;
(6) the coordination of the health care programs and
services provided to Native Hawaiians; and
(7) the administration of special project funds.
(b) Authorization of Appropriations.--There are authorized
to be appropriated such sums as [may be] are necessary to carry
out subsection (a) for each of fiscal years [1993] 2004 through
[2001] 2009 [to carry out 80 subsection (a) of this section].
Sec. 11707. Administration of grants and contracts
(a) Terms and Conditions.--The Secretary shall include in
any grant made or contract entered into under this [chapter]
Act such terms and conditions as the Secretary considers
necessary or appropriate to ensure that the objectives of
[such] the grant or contract are achieved.
(b) Periodic Review.--The Secretary shall periodically
evaluate the performance of, and compliance with, grants and
contracts under this [chapter] Act.
(c) Administrative Requirements.--The Secretary [may] shall
not make a grant or enter into a contract under this [chapter]
Act with an entity unless the entity--
(1) agrees to establish such procedures for fiscal
control and fund accounting as [may be] the Secretary
determines are necessary to ensure proper disbursement
and accounting with respect to the grant or contract;
(2) agrees to ensure the confidentiality of records
maintained on individuals receiving health services
under the grant or contract;
(3) with respect to providing health services to any
population of Native Hawaiians, a substantial portion
of which has a limited ability to speak the English
language--
(A) has developed and has the ability to
carry out a reasonable plan to provide health
services under the grant or contract through
individuals who are able to communicate with
the population involved in the language and
cultural context that is most appropriate; and
(B) has designated at least [one] 1
individual[,] who is fluent in [both] English
and the appropriate language[,] to assist in
carrying out the plan;
(4) with respect to health services that are covered
[in the plan of the State of Hawai`i approved] under a
program under title XVIII, XIX, or XXI of the Social
Security Act [42 U.S.C.A. Sec. 1396 et seq.] (42 U.S.C.
1395 et seq.) (including any State plan), or under any
other Federal health insurance plan--
(A) if the entity will provide under the
grant or contract any [such] of those health
services directly--
(i) [the entity] has entered into a
participation agreement under each such
[plans] plan; and
(ii) [the entity] is qualified to
receive payments under [such] the plan;
and
(B) if the entity will provide under the
grant or contract any [such] of those health
services through a contract with an
organization--
(i) ensures that the organization has
entered into a participation agreement
under each such plan; and
(ii) ensures that the organization is
qualified to receive payments under
[such] the plan; and
(5) agrees to submit to the Secretary and [to] Papa
Ola Lokahi an annual report that--
(A) describes the [utilization] use and costs
of health services provided under the grant or
contract (including the average cost of health
services per user); and
(B) [that] provides such other information as
the Secretary determines to be appropriate.
(d) Contract Evaluation.--
(1) Determination of noncompliance._If, as a result
of evaluations conducted by the Secretary, the
Secretary determines that an entity has not complied
with or satisfactorily performed a contract entered
into under section [11705 of this title] 7, the
Secretary shall, [prior to] before renewing [such] the
contract[,]--
(A) attempt to resolve the areas of
noncompliance or unsatisfactory performance;
and
(B) modify [such] the contract to prevent
future occurrences of [such] the noncompliance
or unsatisfactory performance.
(2) Nonrenewal.--If the Secretary determines that
[such] the noncompliance or unsatisfactory performance
described in paragraph (1) with respect to an entity
cannot be resolved and prevented in the future, the
Secretary--
(A) shall not renew [such] the contract with
[such] the entity; and
(B) [is authorized to] may enter into a
contract under section [11705 of this title] 7
with another entity referred to in section
[11705(b)] 7(a)(3) [of this title] that
provides services to the same population of
Native Hawaiians [which is] served by the
entity [whose contract is] the contract with
which was not renewed by reason of this
[subsection] paragraph.
[(2)] (3) Consideration of results.--In determining
whether to renew a contract entered into with an entity
under this [chapter] Act, the Secretary shall consider
the results of the [evaluation] evaluations conducted
under this section.
[(3)] (4) Application of federal laws.--[All
contracts] Each contract entered into by the Secretary
under this [chapter] Act shall be in accordance with
all Federal contracting laws [and] (including
regulations), except that, in the discretion of the
Secretary, such [contracts] a contract may--
(A) be negotiated without advertising; and
(B) [may] be exempted from [the provisions of
the Act of August 24, 1935 (40 U.S.C. 270a et
seq.)] subchapter III of chapter 31, United
States Code.
[(4)] (5) Payments.--A [Payments] payment made under
any contract entered into under this [chapter] Act--
(A) may be made--
(i) in advance[,];
(ii) by means of reimbursement[,]; or
(iii) in installments; and
(B) shall be made on such conditions as the
Secretary [deems] determines to be necessary to
carry out [the purposes of] this [chapter] Act.
[(e) Limitation on Use of Funds for Administrative
Expenses.--Except for grants and contracts under section 11706
of this title, the Secretary may not grant to, or enter into a
contract with, an entity under this chapter unless the entity
agrees that the entity will not expend more than 10 percent of
amounts received pursuant to this chapter for the purpose of
administering the grant or contract.]
[(f)] (e) Report.--
(1) In general.--For each fiscal year during which an
entity receives or expends funds [pursuant to] under a
grant or contract under this [chapter] Act, [such] the
entity shall submit to the Secretary and to Papa Ola
Lokahi [a quarterly] an annual report [on] that
describes--
(A) the activities conducted by the entity
under the grant or contract;
(B) the amounts and purposes for which
Federal funds were expended; and
(C) such other information as the Secretary
may request.
(2) Audits.--The reports and records of any entity
[which concern] concerning any grant or contract under
this [chapter] Act shall be subject to audit by--
(A) the Secretary[,];
(B) the Inspector General of the Department
of Health and Human Services[,]; and
(C) the Comptroller General of the United
States.
[(g)] (f) Annual Private Audit.--The Secretary shall allow
as a cost of any grant made or contract entered into under this
[chapter] Act the cost of an annual private audit conducted by
a certified public accountant to carry out this section.
Sec. 11708. Assignment of personnel
(a) In General.--The Secretary [is authorized to] may enter
into an agreement with [any entity under which the Secretary is
authorized to assign] Papa Ola Lokahi or any of the Native
Hawaiian health care systems for the assignment of personnel of
the Department of Health and Human Services with relevant
expertise [identified by such entity to such entity on detail]
for the [purposes] purpose of--
(1) conducting research; or
(2) providing comprehensive health promotion and
disease prevention services and health services to
Native Hawaiians.
(b) Applicable Federal Personnel Provisions.--Any
assignment of personnel made by the Secretary under any
agreement entered into under [the authority of] subsection (a)
[of this section] shall be treated as an assignment of Federal
personnel to a local government that is made in accordance with
subchapter VI of chapter 33 of [Title] title 5, United States
Code.
Sec. 11709. Native Hawaiian health scholarships and Fellowships
(a) Eligibility.--Subject to the availability of [funds]
amounts appropriated under [the authority of] subsection (c)
[of this section], the Secretary shall provide to Papa Ola
Lokahi, through a direct grant or a cooperative agreement,
funds [through a direct grant or a cooperative agreement to
Papa Ola Lokahi] for the purpose of providing scholarship
assistance to students who are Native Hawaiians.[--]
[(1) meet the requirements of section 254l of this
title, and
[(2) are Native Hawaiians.]
(b) Priority.--A priority for scholarships under subsection
(a) may be provided to employees of--
(1) the Native Hawaiian Health Care Systems; and
(2) the Native Hawaiian Health Centers.--
[(b)] (c) Terms and Conditions.--
(1) Scholarship assistance.--
(A) In general.--The scholarship assistance
[provided] under subsection (a) [of this
section] shall be provided [under the same
terms and subject to the same conditions,
regulations, and rules that apply to
scholarship assistance provided under section
254l of this title, provided that--] in
accordance with subparagraphs (B) through (G).
[(A)] (B) Need.--[the] The provision of
scholarships in each type of health [care]
profession training shall correspond to the
need for each type of health [care]
professional [identified in the Native Hawaiian
comprehensive health care master plan
implemented under section 11703 of this title]
to serve the Native Hawaiian [health care
systems] community in providing health
services, as identified by Papa Ola Lokahi[;].
[(B) the primary health services covered
under the scholarship assistance program under
this section shall be the services included
under the definition of that term under section
11711(8) of this title;]
(C) Eligible applicants.--[to] To the maximum
extent practicable, the Secretary shall select
scholarship recipients from a list of eligible
applicants submitted by [the] Papa [Oka] Ola
Lokahi[;].
(D) Obligated service requirement.--
(i) In general.--An [the] obligated
service requirement for each
scholarship recipient (except for a
recipient receiving assistance under
paragraph (2)) shall be fulfilled
through [the full-time clinical or
nonclinical practice of the health
profession of the scholarship
recipient, in an] service, in order of
priority [that would provide for
practice--] , in--
(I)[(i) first, in] any [one]
of the [five] Native Hawaiian
health care systems; [and]
(II) any of the Native
Hawaiian health centers;
(III) 1 or more health
professions shortage areas,
medically underserved areas, or
geographic areas or facilities
similarly designated by the
Public Health Service in the
State;
(IV) a Native Hawaiian
organization that serves a
geographical area with a
significant Native Hawaiian
population;
(V) any public agency or non-
profit organization providing
services to Native Hawaiians;
or
(VI) any of the uniformed
services of the United States.
[(ii) second, in--
[(I) a health professional
shortage area or medically
underserved area located in the
State of Hawaii; or
[(II) a geographic area or
facility that is--
[(aa) located in the
State of Hawaii; and
[(bb) has a
designation that is
similar to a
designation described
in subclause (I) made
by the Secretary,
acting through the
Public Health Service;]
(ii) Assignment.--The placement
service for a scholarship shall assign
each Native Hawaiian scholarship
recipient to 1 or more appropriate
sites for service in accordance with
clause (i).
(E) Counseling, retention, and support
services.--[the] The provision of academic and
personal counseling, retention and other
support services--
(i) shall not be limited to
scholarship recipients [,] under this
section; and
(ii) [but shall also include] shall
be made available to recipients of
other scholarship and financial aid
programs enrolled in appropriate health
professions training programs[,].
(F) Financial assistance.--[the obligated
service of a scholarship recipient shall not be
performed by the recipient through membership
in the National Health Service Corps; and]
After consultation with Papa Ola Lokahi,
financial assistance may be provided to a
scholarship recipient during the period that
the recipient is fulfilling the service
requirement of the recipient in any of--
(i) the Native Hawaiian
health care systems; or
(ii) the Native Hawaiians
health centers.
[(G) the requirements of sections 254d
through 254k of this title, section 254m of
this title, other than subsection (b)(5) of
that section, and section 254n of this title
applicable to scholarship assistance provided
under 254l of this title shall not apply to the
scholarship assistance provided under
subsection (a) of this section.]
(G) Distance learning recipients.--A
scholarship may be provided to a Native
Hawaiian who is enrolled in an appropriate
distance learning program offered by an
accredited educational institution.
[(2) The Native Hawaiian Health Scholarship program
shall not be administered by or through the Indian
Health Service.]
(2) Fellowships.--
(A) In General.--Papa Ola Lokahi may provide
financial assistance in the form of a
fellowship to a Native Hawaiian health
professional who is--
(i) a Native Hawaiian
community health
representative, outreach
worker, or health program
administrator in a professional
training program;
(ii) a Native Hawaiian
providing health services; or
(iii) a Native Hawaiian
enrolled in a certificated
program provided by traditional
Native Hawaiian healers in any
of the traditional Native
Hawaiian healing practices
(including lomi-lomi, la'au
lapa'au, and ho'oponopono).
(B) Types of assistance.--Assistance under
subparagraph (A) may include a stipend for, or
reimbursement for costs associated with,
participation in a program described in that
paragraph.
(3) Rights and benefits.--An individual who is a
health professional designated in section 338A of the
Public Health Service Act (42 U.S.C. 254l) who receives
a scholarship under this subsection while fulfilling a
service requirement under that Act shall retain the
same rights and benefits as members of the National
Health Service Corps during the period of service.
(4) No inclusion of assistance in gross income.--
Financial assistance provided under this section shall
be considered to be qualified scholarships for the
purpose of section 117 of the Internal Revenue Code of
1986.
[(c)] (d) Authorization of Appropriations.--There are
authorized to be appropriated such sums as [may be] are
necessary to carry out subsections (a) and (c)(2) for each of
fiscal years [1993] 2004 through [2001] 2009 [for the purpose
of funding the scholarship assistance provided under subsection
(a) of this section].
Sec. 11710. Report
For each fiscal year, the [The] President shall, at the
time at which the budget of the United States is submitted
under section 1105 of [Title] title 31, United States Code,
submit [for each fiscal year transmit] to [the] Congress a
report on the progress made in meeting the [objectives]
purposes of this [chapter] Act, including--
(1) a review of programs established or assisted
[pursuant to this chapter] in accordance with this Act;
and
(2) an assessment of and recommendations [of] for
additional programs or additional assistance necessary
to provide, at a minimum, [provide] health services to
Native Hawaiians, and ensure a health status for Native
Hawaiians, [which] that are at a parity with the health
services available to, and the health status of, the
general population.
SEC. 13. USE OF FEDERAL GOVERNMENT FACILITIES AND SOURCES OF SUPPLY
(a) In General.--The Secretary shall permit an organization
that enters into a contract or receives grant under this Act to
use in carrying out projects or activities under the contract
or grant all existing facilities under the jurisdiction of the
Secretary (including all equipment of the facilities), in
accordance with such terms and conditions as may be agreed on
for the use and maintenance of the facilities or equipment.
(b) Donation of Property.--The Secretary may donate to an
organization that enters into a contract or receives grant
under this Act, for use in carrying out a project or activity
under the contract or grant, any personal or real property
determined to be in excess of the needs of the Department or
the General Services Administration.
(c) Acquisition of Surplus Property.--The Secretary may
acquire excess or surplus Federal Government personal or real
property for donation to an organization under subsection (b)
if the Secretary determines that the property is appropriate
for use by the organization for the purpose for which a
contract entered into or grant received by the organization is
authorized under this Act.
SEC. 14. DEMONSTRATION PROJECTS OF NATIONAL SIGNIFICANCE
(a) Authority and Areas of Interest.--
(1) In general.--The Secretary, in consultation with
Papa Ola Lokahi, may allocate amounts made available
under this Act, or any other Act, to carry out Native
Hawaiian demonstration projects of national
significance.
(2) Areas of interest.--A demonstration project
described in paragraph (1) may relate to such areas of
interest as--
(A) the development of a centralized database
and information system relating to the health
care status, health care needs, and wellness of
Native Hawaiians;
(B) the education of health professionals,
and other individuals in institutions of higher
learning, in health and allied health programs
in healing practices, including Native Hawaiian
healing practices;
(C) the integration of Western medicine with
complementary healing practices, including
traditional Native Hawaiian healing practices;
(D) the use of telewellness and
telecommunications in--
(i) chronic and infectious disease
management, and
(ii) health promotion and disease
prevention;
(E) the development of appropriate models of
health care for Native Hawaiians and other
indigenous people, including--
(i) the provision of culturally
competent health services;
(ii) related activities focusing on
wellness concepts;
(iii) the development of appropriate
kupuna care programs; and
(iv) the development of financial
mechanisms and collaborative
relationships leading to universal
access to health care; and
(F) the establishment of--
(i) a Native Hawaiian Center of
Excellence for Nursing at the
University of Hawai`i at Hilo;
(ii) a Native Hawaiian Center of
Excellence for Mental Health at the
University of Hawai`i at Manoa,
(iii) a Native Hawaiian Center of
Excellence for Maternal Health and
Nutrition at the Waimanalo Health
Center;
(iv) a Native Hawaiian Center of
Excellence for Research, Training, and
Integrated Medicine at Molokai General
Hospital; and
(v) a Native Hawaiian Center of
Excellence for Complementary Health and
Health Education and Training at the
Waianae Coast Comprehensive Health
Center.
(3) Centers of excellence.--Papa Ola Lokahi, and any
centers established under paragraph (2)(F), shall be
considered to be qualified as Centers of Excellence
under sections 485F and 903(b)(2)(A) of the Public
Health Service Act (42 U.S.C. 287c-32, 299a-1).
(b) Nonreduction in Other Funding.--The allocation of funds
for demonstration projects under subsection (a) shall not
result in any reduction in funds required by the Native
Hawaiian health care systems, the Native Hawaiian Health
Centers, the Native Hawaiian Health Scholarship Program, or
Papa Ola Lokahi to carry out the respective responsibilities of
those entities under this Act.
Sec. 11711. Definitions
[For purposes of this chapter] In this Act:
(1) Department.--The term `Department' means the
Department of Health and Human Services.
[(1)](2) Disease prevention.--The term [``]`disease
prevention['']' includes--
(A) immunizations[,];
(B) control of high blood pressure[,];
(C) control of sexually transmittable
diseases[,];
(D) prevention and control of [diabetes,]
chronic diseases;
(E) control of toxic agents[,];
(F) occupational safety and health[,];
(G) [accident] injury prevention[,];
(H) fluoridation of water[,];
(I) control of infectious agents[,]; and
(J) provision of mental health care.
[(2)] (3) Health promotion.--The term [``]`health
promotion['']' includes--
(A) pregnancy and infant care, including
prevention of fetal alcohol syndrome[,];
(B) cessation of tobacco smoking[,];
(C) reduction in the misuse of alcohol and
harmful illicit drugs[,];
(D) improvement of nutrition[,];
(E) improvement in physical fitness[,];
(F) family planning[, and];
(G) control of stress[.];
(H) reduction of major behavioral risk
factors and promotion of healthy lifestyle
practices; and
(I) integration of cultural approaches to
health and well-being (including traditional
practices relating to the atmosphere (lewa
lani), land ('aina), water (wai), and ocean
(kai).
(4) Health service.--The term `health service'
means--
(A) service provided by a physician,
physician's assistant, nurse practitioner,
nurse, dentist, or other health professional;
(B) a diagnostic laboratory or radiologic
service,
(C) a preventive health service (including a
perinatal service, well child service, family
planning service, nutrition service, home
health service, sports medicine and athletic
training service, and, generally, any service
associated with enhanced health and wellness);
(D) emergency medical service, including a
service provided by a first responder,
emergency medical technician, or mobile
intensive care technician;
(E) a transportation service required for
adequate patient care;
(F) a preventive dental service,
(G) a pharmaceutical and medicant service;
(H) a mental health service, including a
service provided by a psychologist or social
worker;
(I) a genetic counseling service;
(J) a health administration service,
including a service provided by a health
program administrator;
(K) a health research service, including a
service provided by an individual with an
advanced degree in medicine, nursing,
psychology, social work, or any other related
health program;
(L) an environmental health service,
including a service provided by an
epidemiologist, public health official, medical
geographer, or medical anthropologist, or an
individual specializing in biological,
chemical, or environmental health determinants;
(M) a primary care service that may lead to
specialty or tertiary care; and
(N) a complementary healing practice,
including a practice performed by a traditional
Native Hawaiian healer.
[(3)](5) Native hawaiian.--The term [``]`Native
Hawaiian['']' means any individual who is [--] Kanaka
Maoli (a descendant of the aboriginal people who, prior
to 1778, occupied and exercised sovereignty in the area
that now constitutes the State), as evidenced by--
(A) [a citizen of the United States, and]
genealogical records;
(B) [a descendant of the aboriginal people,
who prior to 1778, occupied and exercised
sovereignty in the area that now constitutes
the State of Hawai`i, as evidenced by--]
kama`aina witness verification from Native
Hawaiian Kupuna (elders); or
[(i) genealogical records,
[(ii) Kupuna (elders) or Kama`aina
(long-term community residents)
verification, or]
[(iii)] (C) birth records of the
State [of Hawai`i] or any other State
or territory of the United States.
[(4)] (6) Native hawaiian health [Center] care
system.--The term [``]`Native Hawaiian health [center]
care system' means [an entity] any of up to 8 entities
in the State that--
(A) [which] is organized under the laws of
the State [of Hawai`i];
(B) [which] provides or arranges for the
provision of health [care] services [through
practitioners licensed by the State of Hawai`i,
where licensure requirements are applicable]
for Native Hawaiians in the State;
(C) [which] is a public or nonprofit private
entity [, and];
(D)[ in which] has Native [Hawaiian health
practitioners] Hawaiians significantly
[participate] participating in the planning,
management, provision, monitoring, and
evaluation of health services[.];
(E) addresses the health care needs of an
island's Native Hawaiian population; and
(F) is recognized by Papa Ola Lokahi--
(i) for the purpose of planning,
conducting, or administering programs,
or portions of programs, authorized by
this Act for the benefit of Native
Hawaiians; and
(ii) as having the qualifications and
the capacity to provide the services
and meet the requirements under--
(I) the contract that each
Native Hawaiian health care
system enters into with the
Secretary under this Act; or
(II) the grant each Native
Hawaiian health care system
receives from the Secretary
under this Act.
[(5)] (7) [Native hawaiian organization] Native
hawaiian health center.--The term [``]`Native Hawaiian
[organization''] Health Center' means any
organization[--] that is a primary health care provider
that--
(A) [which serves the interests of Native
Hawaiians,] has a governing board composed of
individuals, at least 50 percent of whom are
Native Hawaiians;
(B)[ which is--] has demonstrated cultural
competency in a predominately Native Hawaiian
community;
(C) services a patient population that--
(i) [recognized by Papa Ola Lokahi
for the purpose of planning,
conducting, or administering programs
(or portions of programs) authorized
under this chapter for the benefit of
Native Hawaiians, and] is made up of
individuals at least 50 percent of whom
are Native Hawaiian; or
(ii) [certified by Papa Ola Lokahi as
having the qualifications and capacity
to provide the services, and meet the
requirements, under the contract the
organization enters into with, or grant
the organization receives from, the
Secretary under this chapter,] has not
less that 2,500 Native Hawaiians as
annual users of services; and
[(C) in which Native Hawaiian health
practitioners significantly participate
in the planning, management,
monitoring, and evaluation of health
services, and]
(D) [which is a public or nonprofit private
entity.] is recognized by Papa Ola Lokahi has
having met each of the criteria described in
subparagraphs (A) through (C).
[(6)] (8) Native hawaiian [health care system--]
health task force.--The term [``]`Native Hawaiian
[health care system''] Health Task Force' means [an
entity--] a task force established by the State Council
of Hawaiian Homestead Associations to implement health
and wellness strategies in Native Hawaiian communities.
[(A) which is organized under the laws of the
State of Hawai`i,
[(B) which provides or arranges for health
care services through practitioners licensed by
the State of Hawai`i, where licensure
requirements are applicable,
[(C) which is a public or nonprofit private
entity,
[(D) in which Native Hawaiian health
practitioners significantly participate in the
planning, management, monitoring, and
evaluation of health care services,
[(E) which may be composed of as many Native
Hawaiian health centers as necessary to meet
the health care needs of each island's Native
Hawaiians, and
[[(F) which is--
[(i) recognized by Papa Ola Lokahi
for the purpose of planning,
conducting, or administering programs,
or portions of programs, authorized by
this chapter for the benefit of Native
Hawaiians, and
[(ii) certified by Papa Ola Lokahi as
having the qualifications and the
capacity to provide the services and
meet the requirements under the
contract the Native Hawaiian health
care system enters into with the
Secretary or the grant the Native
Hawaiian health care system receives
from the Secretary pursuant to this
chapter.]
[(7)] (9) [Papa ola lokahi--] Native hawaiian
organization.--The term `Native Hawaiian organization'
means any organization that--
(A) [The term ``Papa Ola Lokahi'' means an
organization composed of--] serves the
interests of Native Hawaiians; and
[(i) E Ola Mau;
[(ii) the Office of Hawaiian Affairs
of the State of Hawai`i;
[(iii) Alu Like Inc.;
[(iv) the University of Hawai`i;
[(v) the Office of Hawaiian Health of
the Hawaii State Department of Health;
[(vi) Ho`ola Lahui Hawai`i, or a
health care system serving the islands
of Kaua`i and Ni`ihau, and which may be
composed of as many health care centers
as are necessary to meet the health
care needs of the Native Hawaiians of
those islands;
[(vii) Ke Ola Mamo, or a health care
system serving the island of O`ahu, and
which may be composed of as many health
care centers as are necessary to meet
the health care needs of the Native
Hawaiians of that island;
[(viii) Na Pu`uwai or a health care
system serving the islands of Moloka`i
and Lana`i, and which may be composed
of as many health care centers as are
necessary to meet the health care needs
of the Native Hawaiians of those
islands;
[(ix) Hui No Ke Ola Pono, or a health
care system serving the island of Maui,
and which may be composed of as many
health care centers as are necessary to
meet the health care needs of the
Native Hawaiians of that island;
[(x) Hui Malama Ola Ha`Oiwi or a
health care system serving the island
of Hawai`i, and which may be composed
of as many health care centers as are
necessary to meet the health care needs
of the Native Hawaiians of that island;
and
[(xi) such other member organizations
as the Board of Papa Ola Lokahi may
admit from time to time, based upon
satisfactory demonstration of a record
of contribution to the health and well-
being of Native Hawaiians, and upon
satisfactory development of a mission
statement in relation to this chapter,
including clearly defined goals and
objectives, a 5-year action plan
outlining the contributions that each
organization will make in carrying out
the policy of this chapter, and an
estimated budget.]
(B) [Such term does not include any such
organization identified in subparagraph (A) if
the Secretary determines that such organization
has not developed a mission statement with
clearly defined goals and objectives for the
contributions the organization will make to the
Native Hawaiian health care systems, and an
action plan for carrying out those goals and
objectives.] (i) is recognized by Papa Ola
Lokahi for planning, conducting, or
administering programs authorized under this
Act for the benefit of Native Hawaiians; and
(ii) is a public or nonprofit private
entity.
[(8)] (10) [Primary health services] Office of
hawaiian affairs.--The term `Office of Hawaiian
Affairs' means the governmental entity that--
[The term ``primary health services'' means--]
(A) [services of physicians, physicians'
assistants, nurse practitioners, and other
health professionals;] is established under
Article XII, sections 5 and 6 of the Hawai`i
State Constitution; and
(B) [diagnostic laboratory and radiologic
services;] charged with the responsibility to
formulate policy relating to the affairs of
Native Hawaiians.
[(C) preventive health services (including
children's eye and ear examinations to
determine the need for vision and hearing
correction, perinatal services, well child
services, and family planning services);
[(D) emergency medical services;
[(E) transportation services as required for
adequate patient care;
[(F) preventive dental services; and
[(G) pharmaceutical service, as may be
appropriate for particular health centers.]
[(9)] (11) [Secretary] Papa Ola Lokahi._
[The term ``Secretary'' means the Secretary of Health
and Human Services.]
(A) In general.--The term ``Papa Ola Lokahi''
means an organization that--
(i) is composed of public agencies
and private organizations focusing on
improving the health status of Native
Hawaiians; and
(ii) governed by a board the members
of which may include representation
from--
(I) E Ola Mau;
(II) the Office of Hawaiian A
airs;
(III) Alu Like, Inc.;
(IV) the University of
Hawai`i;
(V) the Hawai`i State
Department of Health;
(VI) the Native Hawaiian
Health Task Force,
(VII) the Hawai`i State
Primary Care Association;
(VIII) Ahahui O Na Kauka, the
Native Hawaiian Physicians
(IX) Ho `ola Lahui Hawai`i,
or a health care system serving
the islands of Kaua`i or
Ni`ihau (which may be composed
of as many health care centers
as are necessary to meet the
health care needs of the Native
Hawaiians of those islands);
(X) Ke Ola Mamo, or a health
care system serving the island
of O`ahu (which may be composed
of as many health care centers
as are necessary to meet the
health care needs of the Native
Hawaiians of that island);
(XI) Na Pu`uwai or a health
care system serving the islands
of Moloka`i or Lana`i (which
may be composed of as many
health care centers as are
necessary to meet the health
care needs of the Native
Hawaiians of those islands);
(XII) Hui No Ke Ola Pono, or
a health care system serving
the island of Maui (which may
be composed of as many health
care centers as are necessary
to meet the health care needs
of the Native Hawaiians of that
island);
(XIII) Hui Malama Ola Na
`Oiwi, or a health care system
serving the island of Hawai`i
(which may be composed of as
many health care centers as are
necessary to meet the health
care needs of the Native
Hawaiians of that island);
(XIV) such other Native
Hawaiian health care systems as
are certified and recognized by
Papa Ola Lokahi in accordance
with this Act; and
(XV) such other member
organizations as the Board of
Papa Ola Lokahi shall admit
from time to time, based on
satisfactory demonstration of a
record of contribution to the
health and well-being of Native
Hawaiians.
(B) Exclusion.--The term ``Papa Ola Lokahi''
does not include any organization described in
subparagraph (A) for which the `Secretary has
made a determination that the organization has
not developed a mission statement that
includes--
(i) clearly-defined goals and
objectives for the contributions the
organization will make to--
(I) Native Hawaiian health
care systems, and
(II) the national policy
described in section 4; and
(ii) an action plan for carrying out
those goals and objectives.
[(10)] (12) [Traditional native hawaiian healer.--]
Secretary._The term ``Secretary'' means the Secretary
of Health and Human Services.
[The term ``traditional Native Hawaiian healer''
means a practitioner--
[(A) who--
[(i) is of Hawaiian ancestry, and
[(ii) has the knowledge, skills, and
experience in direct personal health
care of individuals, and
[(B) whose knowledge, skills, and experience
are based on demonstrated learning of Native
Hawaiian healing practices acquired by--
[(i) direct practical association
with Native Hawaiian elders, and
[(ii) oral traditions transmitted
from generation to generation.]
(13) State.--The term ``State'' means the State of
Hawai`i.
(14) Traditional native hawaiian healer.--The term
``traditional Native Hawaiian healer'' means a
practitioner--
(A) who--
(i) is of Native Hawaiian ancestry;
and
(ii) has the knowledge, skills, and
experience in direct personal health
care of individuals; and
(B) the knowledge, skills, and experience of
whom are based on demonstrated learning of
Native Hawaiian healing practices acquired by--
(i) direct practical association with
Native Hawaiian elders, and
(ii) oral traditions transmitted from
generation to generation.
Sec. 11712. Rule of construction
Nothing in this [chapter] Act [shall be construed to
restrict] restricts the authority of the State [of Hawai`i] to
[license] require licensing of, and issue licenses to, health
practitioners.
Sec. 11713. Compliance with Budget Act
Any new spending authority [(]described in [subsection
(c)(2)] subparagraph (A) or (B) of section [651] 401(c) (2) of
[Title 2)] the Congressional Budget Act of 1974 (2 U.S.C. 651
(c) (2)) [)] [which] that is provided under this [chapter] Act
shall be effective for any fiscal year only to such extent or
in such amounts as are provided for in Acts of appropriation
[Acts].
Sec. 11714. Severability
If any provision of this [chapter] Act, or the application
of any such provision to any person or [circumstances]
circumstance, is [held] determined by a court of competent
jurisdiction to be invalid, the remainder of this [chapter]
Act, and the application of [such] the provision [or amendment]
to a [persons or circumstances] person or circumstance other
than [those] that to which [it] the provision is held invalid,
shall not be affected [thereby] by that holding.
APPENDIX A
----------
GOALS AND OBJECTIVES AND HEALTH CARE SERVICES PROVIDED BY THE FIVE
NATIVE HAWAIIAN HEALTH CARE SYSTEMS
Islands of Kaua`i and Ni`ihau
To serve the health care needs of Native Hawaiians on the
islands of Kaua`i and Ni`ihau, Ho`ola Lahui Hawai`i is a
nonprofit organization dedicated to elevating the health status
and overall living conditions of Native Hawaiians. Ho`ola Lahui
Hawaii has established offices in Waimea and Anahola which
serve as a base from which outreach is provided to the East and
West sides of Kaua`i. Service to the island of Ni`ihau is
provided through the office in Waimea. Ho`ola Lahui Hawaii is
working with existing health and health-related organizations
in an effort to assure access to services for Native Hawaiians
that were either inaccessible or unacceptable. Ho`ola Lahui
Hawai`i is organized around the concept of lokahi (unity in all
aspects of life) in which they seek to maintain a balance of
body, mind, and soul. As a community-based organization, the
concern of Ho`ola Lahui Hawai`i for Native Hawaiians grows out
of a shared history, for those involved in Ho`ola Lahui Hawai`i
are Native Hawaiian.
Ho`ola Lahui Hawai`i provides health education and teaching
on cancer, diabetes, hypertension, high cholesterol, gout,
hygiene, and diet/exercise. Ho`ola Lahui Hawai`i also conducts
monitoring on blood pressure, blood sugar, weight, and diet.
Ho`ola Lahui Hawai`i offers information and referral to outside
agencies through case management. In addition, Ho`ola Lahui
Hawai`i is sponsoring the traditional Native Hawaiian diet
regimen on the island of Kaua`i. Ho`ola Lahui Hawai`i completed
one diet project in Waimea in conjunction with the State
Department of Health and started another in Kapa`a in May of
1992.
Traditional healing is also an area Ho`ola Lahui Hawai`i
addresses with sponsorship of a statewide la`au lapa`au
(training in traditional medicine) in the spring of 1992 in
conjunction with E Ola Mau and Ka Wai Ola `o Kalani. In
addition, Ho`ola Lahui Hawai`i offers lomi lomi (traditional
massage therapy). Ho`ola Lahui Hawai`i intends to expand its
services to include health education and teaching on sexually-
transmitted diseases, family planning, maternal and infant
care, and alcohol/substance abuse. Ho`ola Lahui Hawai`i's plans
include establishing a health education component in
kindergarten, elementary, and high schools, tailored to the
physical and psychological needs of the particular age group.
Island of O`ahu
Ke Ola Mamo is committed to improving the health status of
Native Hawai`ians on the island of O`ahu through the
development of a system of culturally-competent services that
build upon rather than duplicate the existing health care
service delivery system. Through outreach referral and case
consultation, Ke Ola Mamo's goal is the empowerment of Native
Hawaiian families and individuals to access appropriate health
care services; the development of partnerships with existing
health care services in a collaborative effort to improve
access to health care; and working with Native Hawaiian
communities and neighborhoods to assist them in meeting their
health care needs.
In 1986, there were 137,481 Native Hawaiians living on the
island of O`ahu, who comprise approximately two-thirds of the
total Native Hawaiian population in the entire State of
Hawai`i. The Native Hawaiian population living on O`ahu can be
roughly divided into three equal groups by geographic location;
those living on the leeward coast, including Pearl City; those
living on the windward and north coasts; and those living in
the urban Honolulu complex. There are estimated to be at least
20 distinct communities and neighborhoods where Native Hawaiian
families reside. At the outset of its work, Ke Ola Mamo
selected four of these communities to develop service delivery
projects. Three projects involve rural communities: the
Waimanalo community, the Wai`anae community, and the Ko`olauloa
community. A fourth project is being proposed as a community
education and planning process for the urban Honolulu
communities with future service implementation proposals.
Island of Moloka`i
The goal of Na Pu`uwai is to raise the health status of the
Native Hawaiian residents of the island of Moloka`i, including
Kalaupapa, and the island of Lana`i to the highest possible
level and to encourage the maximum participation of Native
Hawaiians to achieve this goal. The strategy of the program is
two-fold: (1) to develop a personalized schedule of recommended
health care activities, referred to as a ``personalized health
care plan'' for each client; and (2) to use case management
methodologies as a behavioral intervention to assure client
adherence to their ``personalized health care plan.''
To implement this strategy, the program: (1) conducts
screening and enrollment for those who are self-referred,
provider-referred, or recruited by staff; (2) conducts a health
risk appraisal on each enrollee to assess current health
maintenance status; (3) develops a personalized health care
plan with each client, based on recommended primary, secondary,
and tertiary health maintenance guidelines and the client's
concerns and needs; (4) coordinates and provides health
promotion and disease prevention programs and health screening;
(5) provides clinic-based primary health care services; (6)
provides multi-disciplinary case management services as
appropriate, to enrolled participants; and (7) reassesses
client status as dictated in the case management plan and
conducts ongoing followup on all clients, case management and
non-case management.
Na' Pu`uwai's service delivery plan provides for (1) direct
outpatient care services of a physician and nurse; (2) case
management services of a social worker and multi-disciplinary
case management team; (3) direct health education and health
screening services; and (4) patient followup and outreach
services.
Island of Maui
Hui No Ke Ola Pono, an association to strengthen and
perpetuate life, is Maui's Native Hawaiian Health Care System,
providing services that are culturally relevant to Native
Hawaiians of Maui, including identification, treatment,
control, and reduction of the incidence of preventable
illnesses and conditions frequently occurring in the Native
Hawaiian population. The services provided by Hui No Ke Ola
Pono include health promotion and disease prevention; referrals
for immunizations; improvement of nutrition; referrals for
pregnancy and infant care; prevention and control of diabetes,
high blood pressure, and middle ear infections; community
outreach services; referrals to physician and nursing services;
and education on traditional practitioner services.
In addition, traditional Hawaiian healers provide the
following services: ho`oponopono (family or group counseling);
la`au lapa`au (traditional Hawaiian herbal medicine); and lomi
lomi (Hawaiian massage therapy).
Island of Hawai`i
Hui Malama Ola Na `Oiwi (caring for our people) is the
Native Hawaiian health care system for Native Hawaiians on the
Island of Hawai`i. The program mission of Hui Malama Ola Na
`Oiwi is to assist Native Hawaiians in restoring a high quality
health care system by creating and developing a non-threatening
healing environment inclusive of traditional health assistance
and to provide and facilitate a process of awareness and
addressing the health needs, both physical and spiritual, of
Native Hawaiians.
Hui Malama's objectives are to (1) promote physical,
emotional, and spiritual health and well-being of Native
Hawaiians on the island of Hawai`i; (2) assist and promote
personal responsibility among Native Hawaiians toward making
sound, informed decisions which would decrease unhealthy
behaviors and reduce morbidity and mortality rates; (3) support
and advocate the use of health care services that come from the
traditions of the Native Hawaiian culture and of western
science; and (4) work toward the establishment of primary
health care centers in appropriate locations where quality
primary care can be provided and where primary care services
are not currently available.
The death rates of Native Hawaiians exceed the death rates
for all races in the United States caused by diseases of the
heart, cancer, strokes, and diabetes. Achieving good health for
Native Hawaiians appears difficult, but these diseases can be
controlled through early detection, proper diet and treatment,
and regular exercise.
Hui Malama Ola Na `Oiwi provides the following services:
(1) Outreach--enrolling participants in the program,
assessing their health risk factors, assisting in
securing medical insurance where needed, assisting in
access to a physician, providing transportation to and
from the physician for those who need it, and making
home visits when necessary;
(2) Health promotion and disease prevention--
providing education regarding the prevention and
control of diabetes, high blood pressure
(hypertension), use of tobacco, alcohol and other
harmful drugs, sexually transmitted diseases, stress,
cancer, the importance of sound nutrition habits,
regular exercise, and proper maternal and infant care
practices;
(3) Primary health services--Hui Malama Ola Na `Oiwi
assists patients in securing access to the primary
health care services of a physician, a physician's
assistant, or a nurse practitioner.
APPENDIX B
----------
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.\6\ Although the authority has been characterized
as ``plenary,'' \7\ the Supreme Court has addressed the broad
scope of the Congress' authority.\8\ 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.\9\
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\6\ 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 a 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).
\7\ Morton v. Mancari, 427 U.S. 535 (1974).
\8\ Delaware Tribal Business Council v. Weeks, 430 U.S. 73 (1977);
United States v. Sioux Nation, 448 U.S. 371 (1980). 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).
\9\ United States v. Sandoval, 231 U.S. 28 (1913).
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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.
Organization as a Tribe and the Scope of Constitutional Authority
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.'' \10\ A further refinement suggested that the language
read ``and with Indians, within the Limits of any State, not
subject to the laws thereof[.]''.\11\
---------------------------------------------------------------------------
\10\ The Records of the Federal Convention of 1787, Volume II,
Journal Entry of August 18, 1787, p. 321.
\11\ The Records of the Federal Convention of 1787, Volume II,
Journal Entry of August 22, 1787, p. 367.
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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.\12\
Nor is the term ``Indian tribe'' found in any dictionaries of
the late eighteenth century, although the terms ``aborigines''
and ``tribe'' are defined.'' \13\
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\12\ 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.
\13\ 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).
---------------------------------------------------------------------------
Native Hawaiians and the Meaning of ``Indian''
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 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'' and as ``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 Hawaii) are ``Indian
Tribes'' as that phrase was used by the Founders. The Framers
drafted the Constitution not to limit Congress' power over
Indians, but to make clear the supremacy of Congress' power
over Indian affairs. The Congress has exercised the power to
promote the welfare of all Native American peoples, and to
foster the ever-evolving means and methods of self-governance
as exercised by Native people.
This history is accurately reflected in nearly 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 malapropism 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.'' \14\
---------------------------------------------------------------------------
\14\ 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 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.\15\
---------------------------------------------------------------------------
\15\ Robert F. Berkhofer, Jr., The White Man's Indian 16 (1979).
---------------------------------------------------------------------------
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.\16\ 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.\17\ 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.
---------------------------------------------------------------------------
\16\ Jefferson, Notes, at 221.
\17\ 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.
---------------------------------------------------------------------------
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 to the
Constitution, and two hundred years of Congressional action and
judicial construction.
History of the Origins of the Constitutional Term ``Tribe''
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.'' \18\ 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.'' \19\ 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.
---------------------------------------------------------------------------
\18\ Articles of Confederation, Art. X, March l, 1778.
\19\ 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.'' \20\ 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.'' \21\ 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. \22\ On August 31st, the Convention referred various
``parts of the Constitution'' (including the Commerce Clause)
to a ``Committee of eleven,'' including Madison. \23\ Without
recorded discussion, the Committee recommended that the
language be simplified to commerce ``with the Indian tribes.''
\24\ The Convention accepted the recommendation without debate
or dissent. \25\
---------------------------------------------------------------------------
\20\ 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.
\21\ 2 Federal Convention, at 321, 324; see also id. at 143
(Rutledge noted that ``Indian affairs'' should be added to Congress'
powers).
\22\ 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.
\23\ Id. at 481.
\24\ Id. at 493, 496-97, 503 (emphasis added).
\25\ See id. at 495. The language appears in the final version. Id
at 569, 595.
---------------------------------------------------------------------------
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.'' \26\ 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. \27\ The notion that the reference to ``tribes'' was a
limit on Congress' ability to deal with the native peoples is
without support in history 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.
---------------------------------------------------------------------------
\26\ 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.
\27\ 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.'' \28\ Congress understood its power to
``operate immediately on the persons and interests of
individual citizens.'' \29\ 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.'' \30\
Washington, like other Founders, did not know how the Creek
lived and how they governed themselves. But however the Indian
peoples lived, and however they governed themselves, they were
still Indian peoples and they were still subject to the supreme
power of the Federal government over Indian tribes.
---------------------------------------------------------------------------
\28\ ``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.
\29\ Madison, Federalist 40, in Documentary History, XV: 406.
\30\ 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.'' \31\ 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.
---------------------------------------------------------------------------
\31\ Thomas Jefferson, ``Instructions to Captain Lewis,'' June 20,
1803, in Jefferson, Writings, supra, at 1126, 1128.
---------------------------------------------------------------------------
Fourteenth Amendment to the United States Constitution
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 of the United States, they
did not have the right to vote, they did not count for purposes
of apportionment, but 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,\32\ and Indian nations were treated like alien peoples
not fully within the jurisdiction of the government:
---------------------------------------------------------------------------
\32\ 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.\33\
---------------------------------------------------------------------------
\33\ 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.\34\ 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.\35\
---------------------------------------------------------------------------
\34\ 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'').
\35\ 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 nearly 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 the Supreme
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.'' \36\ With
deliberate irony, he called the Indian tribes ``domestic
dependent nations.'' \37\ The Indian peoples had surrendered
``their rights to complete sovereignty,'' \38\, and yet they
continued to be ``nations'' that governed themselves.\39\
---------------------------------------------------------------------------
\36\ Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16 (1831).
\37\ Id., at 17.
\38\ Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 572-74 (1823).
\39\ 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, art. II, Sec. 2, cl. 2, granted Congress broad power to
regulate Indian affairs. These provisions permitted the United
States to fulfill its obligations to the dependent Indian
``nations'' that were its ``wards.'' \40\ As ``guardian,''
Congress had both the obligation and the power to enact
legislation protecting the Indian nations.\41\
---------------------------------------------------------------------------
\40\ Cherokee Nation, 30 U.S. (5 Pet.) at 17-18; Worcester, 31 U.S.
(6 Pet.) at 558-59.
\41\ See Worcester, 31 U.S. (6 Pet.) at 560-61; accord Cherokee
Nation, 30 U.S. (5 Pet.) at 16 (``[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.'' \42\
He also conceived of ``tribes'' in broad, inclusive terms. He
used ``tribe'' and ``nation'' interchangeably: A ``tribe or
nation,'' he noted, ``means a people distinct from others''--a
``distinct community.'' \43\ 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.
---------------------------------------------------------------------------
\42\ 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''). See also Johnson, 21 U.S.
(8 Wheat.) at 575 (Indians in French Canada); id. at 581 (Indians in
Nova Scotia); Id. at 584-87 (Indians in Virginia, Kentucky, the
Louisiana Purchase, and Florida). Marshall noted the United States had
dealt with variously organized ``tribes'' or ``confederacies.'' See id.
at 546-49.
\43\ Worcester, 31 U.S. (6 Pet.) at 559, 561. 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,'' \44\. The ``race'' of
Indian peoples was constitutionally irrelevant. Native peoples
were ``nations,'' \45\ and the relationship between the United
States and the natives reflected a political settlement between
conquered and conquering nations.
---------------------------------------------------------------------------
\44\ Id., at 559.
\45\ Id., at 559-60.
---------------------------------------------------------------------------
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 (1) the descendants of
aboriginal peoples who (ii) belong to some Native American
``people,'' ``nation,'' ``tribe,'' or ``community,'' as the
founding generation understood those terms.\46\
---------------------------------------------------------------------------
\46\ See, e.g., Montoya v. United States, 180 U.S. 261, 266 (1901)
(``a body of Indians of the same or a similar race, united in a
community under one leadership or government, and inhabiting a
particular though sometimes ill-defined territory''); United States v.
Candelaria, 271 U.S. 432, 442 (1926); see Oklahoma Tax Comm'n v. Sac &
Fox Nation, 508 U.S. 114, 123 (1993); United States v. Antelope, 430
U.S. 641, 647 n.7 (1977) (individuals ``anthropologically'' classified
an Indians may be outside Congress's 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.\47\ It is an individual's membership in a
``political community'' of Indians--even a community in the
making--and not solely his or her racial identity, that brings
him or her within Congress' broad authority to regulate Indian
affairs.\48\
---------------------------------------------------------------------------
\47\ United States v. Antelope, 430 U.S. 641, 646-47 (1977).
\48\ Id., at 646.
---------------------------------------------------------------------------
Indian Tribes and Blood Quantum
Nor does the use of blood quantum as part of the formula to
determine who is and is not a Native American constitute
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.'' \49\ 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.'' \50\
From time immemorial, Native American communities have defined
themselves at least in part by family and ancestry.\51\ 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.
---------------------------------------------------------------------------
\49\ 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).
\50\ 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).
\51\ 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.).
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Congressional authority to use such traditional
requirements for tribal membership or benefits has never been
doubted. In United States v. John, the Supreme Court approved
Congress' establishment of an Indian reservation for the
benefit of ``Chocktaw Indians of one-half or more Indian blood,
resident in Mississippi.'' \52\ 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.''
\53\ 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.'' \54\ 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.
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\52\ Id., 437 U.S. at 646.
\53\ Id. at 650 (quoting 25 U.S.C. Sec. 479).
\54\ 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).
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This is not to suggest, however, that the Constitution
imposes any minimum blood quantum requirement for tribal
membership, and suggestions to the contrary have no legal or
historical basis.
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. . . .'' \55\ Recently, the Supreme Court acknowledged
the continued significance of this historic trust
relationship.\56\
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\55\ 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).
\56\ See Greater New Orleans Broadcasting Assn v. United States,
527 U.S. 173, 193 (1999) (recognizing ``special federal interest in
protecting the welfare of Native Americans'').
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Like the 556 Indian tribes currently recognized by the
United States, Native Hawaiians are a group of people defined
by their common descent from an ancestral class, each forming a
distinct polity and having a unique historical existence. Any
contemporary group whose members are defined by their lineal
descendancy from a historically-defined class will necessarily
share an ethnic identity with the original members of the
historical class, even though intermarriage may attenuate the
degree of blood quantum shared by the original historical class
members. Nevertheless, a definition that is based primarily on
the historical uniqueness of the original class is no more
race-based than the definition of those who are members or
citizens of the historic Indian tribes that greeted the first
Europeans immigrants to this nation's shores.
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 of whether and how to
treat with these changing communities are assigned by the
Constitution to Congress. In The Kansas Indians,\57\, 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.'' \58\
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\57\ 72 U.S. 737 (1866).
\58\ Id., 72 U.S. at 755-57.
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Fifty years later, the Supreme Court approved a 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; and
prior to the acquisition of New Mexico by the United States,
they enjoyed full Mexican citizenship.\59\ 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.'' \60\ 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. . . .'' \61\
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\59\ See United States v. Joseph, 94 U.S. (4 Otto.) 614, 616
(1877).
\60\ United States v. Sandoval, 231 U.S. 28, 46-47 (1913);
Candelaria, 271 U.S. at 439-40, 442-43.
\61\ Sandoval, 231 U.S. at 46; accord Tiger v. Western Inv. Co.,
221 U.S. 286, 315 (1911).
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As indicated above, sixty years later, in United States v.
John,\62\ the Supreme Court recognized Congress' authority to
establish 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.\63\ 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.'' \64\
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\62\ 437 U.S. 634 (1978).
\63\ Id., 437 U.S. at 652-53.
\64\ Id., at 650 n.20, 652-53.
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Similarly, the Supreme Court has recognized Congress' broad
authority to deal with individual ``Indians.'' \65\ or large
organizations comprised of numerous ``tribes.'' \66\ Congress
may 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.\67\
Congress' treatment of the Alaska native people--including the
establishment 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.\68\
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\65\ 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.
\66\ 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).
\67\ See John, 437 U.S. at 652-53; Moe v. Confederated Salish &
Kootenai Tribes, 425 U.S. 463, 480 (1976).
\68\ Although the Alaska natives' situation is ``distinctly
different from that of other American Indians,'' Alaska Chapter, 694
F.2d at 1168-69 n.101, 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'').
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Citizens of the Kingdom of Hawai`i
Contrary to well-established principles of Federal-Indian
law that recognize the right of a tribe to determine its own
members as a fundamental aspect of the tribe's sovereignty,\69\
some have argued that the Kingdom of Hawai`i somehow lost its
``native'' character because some non-Hawaiians became
naturalized citizens of the Kingdom. This argument is used as
the basis for asserting that Native Hawaiians cannot now be
``recognized'' as a native group with which the United States
may maintain a special legal and political relationship.\70\
However, as evident from the preceding discussion of Supreme
Court rulings and precedent, this argument lacks any
constitutional basis. The Supreme Court has often decided cases
relating to the status of non-Indians who had become members or
citizens of Indian tribes,\71\ but the Court has never
suggested that a tribal law that provides for the membership or
citizenship in the tribe of previously non-tribal members
renders those tribes or their modern-day successors ineligible
for recognition as having a special legal and political
relationship with the United States pursuant to the Indian
Commerce Clause. Similarly, opposition to the recognition of a
Native Hawaiian governing entity premised upon the attenuation
of the blood quantum of its citizens lacks any historical or
constitutional basis.
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\69\ Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978).
\70\ See, e.g., Stuart Minor Benjamin, Equal Protection and the
Special relationship: The Case of Native Hawaiians, 106 Yale L.J. 537,
607-8 & n.287 (1996) (discussing this argument, while noting that
``[i]nclusion of some Westerners would not necessarily defeat a claim
of tribal status'' as the Supreme Court has never directly addressed
the question, and noting that ``some Indian tribes included Westerners.
. . .''.
\71\ See, e.g., United States v. Rogers, 45 U.S. (4 How.) 567
(1846); Boff v. Burney, 168 U.S. 218 (1897); Daniel Red Bird v. United
States, 203 U.S. 76 (1906).
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Many contemporary tribes define their citizenship or
membership based upon lineal descendancy from a tribal roll,
and the Congress has from time to time established criteria for
membership in certain tribes.\72\ What neither the Congress nor
the Supreme Court has done is to suggest that the Constitution
imposes a blood quantum limitation or requirement on tribal
citizenship.
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\72\ Public Law No. 129, Sec. Sec. 1-4, 34 Stat. 137, 137-38 (April
26, 1906) (setting forth enrollment criteria for members of the
Choctaw, Chickasaw, Cherokee, Creek and Seminole Tribes of Oklahoma).
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The Significance of ``Federal Recognition''
It is important to recognize that the legal distinctions
that have been drawn in contemporary times between Indian
tribes that are ``acknowledged'' by the Department of the
Interior \73\ or ``recognized'' by the Congress--tribes that
have a direct government-to-government relationship with the
United States and are thereby eligible for various Federal
benefits--and Native American groups that are not so recognized
and have no such government-to-government relationship, is a
relatively recent phenomenon. ``[A] close scrutiny of the
various executive orders, Congressional legislation,
departmental policies, Solicitor's opinions, and judicial
decisions since 1783 . . . discloses an astonishing oblivion of
the need for an express declaration or statement regarding
which Indian tribes were to be recognized, until the enactment
of the Wheeler-Howard (Indian Reorganization) Act of 1934,''
\74\ thirteen years after the enactment of the Hawaiian Homes
Commission Act. In fact, there was no systematic procedure by
which a Native American group could petition the United States
for recognition until 1978, when regulations were promulgated
to implement the Federal Acknowledgment process.\75\
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\73\ See 25 CFR Part 83.
\74\ William W. Quinn, Jr., Federal Acknowledgment of American
Indian Tribes: The Historical Development of a Legal Concept, 34 Am. J.
Leg. Hist. 331, 332 (1990) (citing 48 Stat. 984 (1934) (codified as
amended at 25 U.S.C. Sec. Sec. 461 et seq.)); see generally, William W.
Quinn, Jr., Federal Acknowledgment of American Indian Tribes:
Authority, Judicial Interposition, and 25 CFR Sec. 83, 17 Am. Indian L.
Rev. 37 (1992); L.R. Weatherhead, What is an ``Indian Tribe''?--The
Question of Tribal Existence, 8 Am. Indian L. Rev. 1 (1980).
\75\ 25 CFR, Part 83. Quinn 1992, at 40-41.
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An administrative process for the acknowledgment of Native
groups by the United States that was established almost twenty
years after Hawaians admission to the Union could not have
informed the provisions of the Hawaiian Homes Commission Act
nor the Hawai`i Admission Act and it is thus not surprising
that the language of those Acts do not conform neatly with
categorizations that had yet to be developed.
Although the authority of Congress to formally
``recognize'' tribes through legislation is unquestioned, the
Department of the Interior's regulations associated with the
administrative process for the acknowledgment of tribes
pursuant to 25 CFR Part 83 exclude Native Hawaiians from that
process, and thus legislation is the only mechanism available
to Native Hawaiians.\76\ The present legislation thus
establishes no precedent applicable to groups eligible to apply
for recognition under the existing administrative framework.
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\76\ See 25 CFR Sec. Sec. 83.1, 83.3 (administrative process
available only to groups within the ``continental United States,''
defined as the ``contiguous 48 states and Alaska''). Native Hawaiians
have twice sought unsuccessfully to challenge their exclusion from this
process. Price v. State of Hawaii, 764 F.2d 623 (9th Cir. 1985);
Kahawaiolaa v. Norton, 222 F. Supp. 2d 1213 (D. Haw. 2002).
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