[Senate Report 108-85]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 185
108th Congress                                                   Report
                                 SENATE
 1st Session                                                     108-85

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



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

                                _______
                                

                 June 27, 2003.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 344]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 344) expressing the policy of the United States 
regarding the United States relationship with Native Hawaiians 
and to provide a process for the recognition by the United 
States of the Native Hawaiian governing entity, and for other 
purposes, having considered the same, reports favorably thereon 
with an amendment and recommends that the bill, as amended, do 
pass.

                         PURPOSE AND BACKGROUND

    The purpose of S. 344 is to authorize a process for the 
reorganization of the Native Hawaiian government and to provide 
for the recognition of the Native Hawaiian government by the 
United States for purposes of carrying on a government-to-
government relationship.
    On January 17, 1893, the government of the Kingdom of 
Hawai'i was overthrown by a group of American citizens and 
others, who acted with the support of U.S. Minister John 
Stephens and a contingent of U.S. Marines from the USS Boston. 
One hundred years later, a resolution extending an apology on 
behalf of the United States to Native Hawaiians for the illegal 
overthrow of the Native Hawaiian government and calling for a 
reconciliation of the relationship between the United States 
and Native Hawaiians was enacted into law (Public Law 103-150, 
Apology Resolution). The Apology Resolution acknowledges that 
the overthrow of the Kingdom of Hawai'i occurred with the 
active participation of agents and citizens of the United 
States and further acknowledges that the Native Hawaiian people 
never directly relinquished their claims to their inherent 
sovereignty as a people over their national lands to the United 
States, either through their government or through a plebiscite 
or referendum.
    In December of 1999, the Departments of Interior and 
Justice initiated a process of reconciliation in response to 
the Apology Resolution by conducting meetings in Native 
Hawaiian communities on each of the principal islands in the 
State of Hawai'i and culminating in two days of open dialogue. 
In each setting, members of the Native Hawaiian community 
identified what they believe are the necessary elements of a 
process to provide for the reconciliation of the relationship 
between the United States and the Native Hawaiian people. A 
report, entitled ``From Mauka to Mauki: The River of Justice 
Must Flow Freely,'' (Reconciliation Report) was issued by the 
two departments on October 23, 2000. The principal 
recommendation contained in the Reconciliation Report is set 
forth below:

          Recommendation 1. It is evident from the 
        documentation, statements, and views received during 
        the reconciliation process undertaken by Interior and 
        Justice pursuant to Public Law 103-150 (1993), that the 
        Native Hawaiian people continue to maintain a distinct 
        community and certain governmental structures and they 
        desire to increase their control over their own affairs 
        and institutions. As a matter of justice and equity, 
        this report recommends that the Native Hawaiian people 
        should have self-determination over their own affairs 
        within the framework of Federal law, as do Native 
        American tribes. For generations, the United States has 
        recognized the rights and promoted the welfare of 
        Native Hawaiians as an indigenous people within our 
        Nation through legislation, administrative action, and 
        policy statements. To safeguard and enhance Native 
        Hawaiian self-determination over their lands, cultural 
        resources, and internal affairs, the Departments 
        believe Congress should enact further legislation to 
        clarify Native Hawaiians' political status and to 
        create a framework for recognizing a government-to-
        government relationship with a representative Native 
        Hawaiian governing body.\1\
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    \1\ U.S. Department of the Interior and U.S. Department of Justice, 
From Mauka to Makai: The River of Justice Must Flow Freely: Draft 
Report on the Reconciliation Process Between the Federal Government and 
Native Hawaiians 17 (August 23, 2000).

    S. 344 provides a process for the reorganization of the 
Native Hawaiian government and, upon certification by the 
Secretary of the Interior, that the organic governing documents 
of the Native Hawaiian government are consistent with Federal 
law and the special political and legal relationship between 
the United States and the indigenous, native people of the 
United States, S. 344 provides for the recognition of the 
Native Hawaiian government by the United States for purposes of 
carrying on a government-to-government relationship with the 
Native Hawaiian government.

                          NEED FOR LEGISLATION

    Since the loss of their government in 1893, Native 
Hawaiians have sought to maintain political authority within 
their community. In 1978, the citizens of the State of Hawai'i 
recognized the long-standing efforts of the native people to 
give expression to their rights to self-determination and self-
governance by amending the State constitution to provide for 
the establishment of a quasi-independent State agency, the 
Office of Hawaiian Affairs. The State constitution, as amended, 
provides that the Office is to be governed by nine trustees who 
are Native Hawaiian and who are to be elected by Native 
Hawaiians. The Office administers programs and services with 
revenues derived from lands which were ceded to the United 
States by the Republic of Hawai'i upon the annexation of 
Hawai'i by the United States in 1898 and were conveyed to the 
State of Hawai'i in trust upon its admission into the Union of 
States pursuant to Sec. 5 of the Hawai'i Admission Act,\2\ and 
Public Law 88-233.\3\ The dedication of these revenues reflects 
the provisions of the Admission Act, section 5(f) of which 
provides that the ceded lands and the revenues derived 
therefrom should be held by the State of Hawai'i as a public 
trust for five purposes--one of which is the betterment of the 
conditions of Native Hawaiians. The Admission Act also provides 
that the new State assumes a trust responsibility for 
approximately 203,500 acres of land that had previously been 
set aside under Federal law in 1921 for Native Hawaiians in the 
Hawaiian Homes Commission Act.\4\
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    \2\ Pub. L. No. 83-3, para.5, 73 Stat. 4, 5 (March 18, 1959) 
(Admission Act).
    \3\ 77 Stat. 472 (December 23, 1963).
    \4\ 42 Stat. 108 (July 9, 1921), as amended (Hawaiian Homes 
Commission Act).
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    On February 23, 2000, the United States Supreme Court 
issued a ruling in the case of Rice v. Cayetano.\5\ The Supreme 
Court held that because the Office of Hawaiian Affairs is an 
agency of the State of Hawai'i, funded in part by 
appropriations made by the State legislature, the election for 
the trustees of the Office of Hawaiian Affairs must be open to 
all citizens of the State of Hawai'i who are otherwise eligible 
to vote in statewide elections.\6\ Accordingly, all citizens of 
the State of Hawai'i may vote for the candidates for the nine 
trustee positions and may themselves be candidates for these 
offices.
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    \5\ 528 U.S. 495 (2000).
    \6\ The Court held that the provision of state law requiring those 
voting for the office of Trustee of the Office of Hawaiian Affairs to 
be Native Hawaiian violated the Fifteenth Amendment of the U.S. 
Constitution. Subsequently, in Arakaki v. State of Hawai'i, 314 F.3d 
1091 (9th Cir. 2002), the provision requiring candidates for that 
office to be Native Hawaiian was invalidated on similar grounds.
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    The native people of Hawai'i have thus been divested of the 
mechanism that was established under the Hawai'i State 
Constitution that, since 1978, has enabled them to give 
expression to their rights as indigenous, native people of the 
United States to self-determination and self-governance. S. 344 
is designed to address these developments by providing a means 
under Federal law, consistent with the Federal policy of self-
determination and self-governance for America's indigenous, 
native people, for Native Hawaiians to have a status similar to 
that of the other indigenous, native people of the United 
States.

        FEDERAL DELEGATION OF AUTHORITY TO THE STATE OF HAWAI'I

    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.
    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.\7\ In 
addition, the State agreed to the imposition of a public trust 
upon all of the lands ceded to the State upon admission.\8\ One 
of the five purposes for which the public trust was established 
is the ``betterment of the conditions of native Hawaiians[.]'' 
\9\ 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.\10\
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    \7\ Id., Sec. 4; Haw. Const., Art. XVI, Sec. 7.
    \8\ Id., Sec. 5(f); Haw. Const. Art. XII, Sec. 4.
    \9\ Id., Sec. 5(f); Haw. Const. Art. XII, Sec. 4.
    \10\ 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 ofthe 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.

                                HISTORY

    There is a history, a course of dealings, and a body of law 
which inform the special status of the indigenous, native 
people of the United States. It is a history that begins well 
before the first European set foot on American shores--it is a 
history of those who occupied and possessed the lands that were 
later to become the United States--the aboriginal, indigenous 
native people of this land who were America's first 
inhabitants.
    The indigenous people did not share similar customs or 
traditions. Their cultures were diverse. Some of them lived 
near the ocean and depended upon its bounty for their 
sustenance. Others made their homes amongst the rocky ledges of 
mountains and canyons. Some native people fished the rivers, 
while others gathered berries and roots from the woodlands, 
harvested rice in the lake areas, and hunted wildlife on the 
open plains. Their subsistence lifestyles caused some to follow 
nomadic ways, while others established communities that are 
well over a thousand years old. Those who later came to America 
call them ``aborigines'' or ``Indians'' or ``natives'' but the 
terms were synonymous. Over time, these terms have been used 
interchangeably to refer to those who occupied and possessed 
the lands of America prior to European contact.
    Although the differences in their languages, their 
cultures, their belief systems, their customs and traditions, 
and their geographical origins may have kept them apart and 
prevented them from developing a shared identity as the native 
people of this land--with the arrival of western 
``discoverers'' in the United States, their histories are sadly 
similar. Over time, they were dispossessed of their homelands, 
removed, relocated, and thousands, if not millions, succumbed 
to diseases for which they had no immunities and fell victim to 
the efforts to exterminate them. In the early days of America's 
history, the native peoples' inherent sovereignty informed the 
course of the newcomers' dealings with them. Spanish law of the 
1500's and 1600's presaged how the United States would 
recognize their aboriginal title to land, and treaties became 
the instruments of fostering peaceful relations.\11\
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    \11\ Felix S. Cohen, The Spanish Origin of Indian Rights in the Law 
of the United States, 31, Geo. L.J. 1 (1942).
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    As America's boundaries expanded, new territories came 
under the protection of the United States. Eventually, as new 
States entered the Union, there were other aboriginal, 
indigenous, native people who became recognized as the 
``aborigines'' or ``Indians'' or ``natives'' of contemporary 
times--these included the Eskimos, and the Aleuts, and other 
native people of Alaska, and later, the indigenous, native 
people of Hawai'i.
    For nearly a century, Federal law has recognized these 
three groups--American Indians, Alaska Natives, and Native 
Hawaiians--as comprising the class of people known as Native 
Americans. Well before the Fourteenth and Fifteenth Amendments 
to the U.S. Constitution were adopted to address the effects of 
historic patterns of racial discrimination, the Supreme Court 
had recognized the unique status of America's native peoples 
under the Constitution and laws of the United States.
    Native Hawaiians are the indigenous, aboriginal people of 
the island group that is today the State of Hawai'i. Hawai'i 
was originally settled by voyagers from central and eastern 
Polynesia, traveling immense distances in double-hulled 
voyaging canoes and arriving in Hawai'i perhaps as early as 300 
A.D. The original Hawaiians were thus part of the Polynesian 
family of peoples, which includes the Maori of New Zealand, the 
Samoans, Tongans, Tahitians, Cook Islanders, Marquesans, and 
Easter Islanders.\12\ Hundreds of years of Hawaiian isolation 
followed the end of the era of ``long voyages.'' \13\ During 
these centuries, the Polynesians living in Hawai'i evolved a 
unique system of self-governance and a ``highly organized, 
self-sufficient, subsistent social system based on communal 
land tenure with a sophisticated language, culture, and 
religion.'' \14\
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    \12\ 1 Ralph S. Kuykendall, The Hawaiian Kingdom 3 (1938).
    \13\ Id.
    \14\Public Law 103-150. (Cite to relevant section of Findings)
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    At the pinnacle of the political, economic, and social 
structure of the major Hawaiian islands was a mo'i, a king. 
Below the king, individuals occupied three major classes. The 
highest class, the ali'i, were important chiefs. Next in rank 
were members of the kahuna class, who advised the ali'i as 
seers, historians, teachers, priests, astronomers, medical 
practitioners, and skilled workers. Third, the maka'ainana were 
the ``people of the land,'' who fished and farmed and made up 
the bulk of the population.\15\
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    \15\ Lawrence H. Fuchs, Hawai'i Pono: An Ethnic and Political 
History 5 (1961); Native Hawaiian Rights Handbook 5 (Melody K. 
MacKenzie ed., 1991).
---------------------------------------------------------------------------
    The political, economic, and social structures were 
mutually supportive. The kings held all land and property which 
they subdivided among the chiefs. Substantial chiefs supervised 
large land areas (ahupua'a) which extended from the sea to the 
mountains so that they could fish, farm, and have access to the 
products of the mountain forest. They, in turn, divided the 
ahupua'a into 'ili, run by lesser chiefs whose retainers 
cultivated the land. The commoners worked the land and fished, 
exchanging labor for protection and some produce from their own 
small plots. Agriculture was highly diverse, including taro 
(kalo), bananas, yams, sugar cane, and breadfruit. The taro 
plant, whose starchy root is pounded into poi, requires 
substantial moisture so Hawaiians developed a superior system 
of irrigation.\16\
---------------------------------------------------------------------------
    \16\ See Jon J. Chinen, The Great Mahele 3-4 (1958); Fuchs, supra 
at 5-7; MacKenzie, supra at 3-5.
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    The Hawaiian economy was also dependent upon many skilled 
artisans. Forexample, special skills were necessary for the 
building of outrigger canoes, the making of tapa (a paper-like material 
used for clothing and bedding), the drying of fish, the construction of 
irrigation systems and fishponds, the catching of birds (whose feathers 
were worn in chiefs' cloaks and helmets), and the sharpening of stones 
for building and fighting.\17\
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    \17\ MacKenzie, supra at 4.
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    ``The concept of private ownership of land had no place in 
early Hawaiian thought.'' \18\ The authority of the mo'i or 
king was derived from the gods, and he was a trustee of the 
land and other natural resources of the island.\19\ Chiefs owed 
military service, taxes, and obedience to the king, but neither 
chiefs, nor skilled laborers, nor commoners were tied to a 
particular piece of land or master. All lands conferred by the 
king or chief were given subject to revocation. In turn neither 
commoners nor skilled laborers were required to stay with the 
land; if maltreated or dissatisfied, an individual could move 
to another ahupua'a or 'ili.\20\ Hawaiians also had a complex 
religion focused on several major gods--most notably Kane, god 
of life and light, Lono, god of the harvest and peace, Ku, god 
of war and government, and Pele, goddess of fire. The religion 
generated a detailed system of taboos (kapu), enforced by 
priests, which supported the political, economic and social 
systems of the islands.\21\
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    \18\ Id. at 4.
    \19\ Id.
    \20\ Id.; see also Fuchs, supra at 5.
    \21\ See Ralph S. Kuykendall & A. Grove Day, Hawai'i: A History 11 
(1964).
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    The language and culture of the Hawaiian people were rich 
and complex. Hawaiians possessed an ``extensive literature 
accumulated in memory, added to from generation to generation, 
and handed down by word of mouth. It consisted of mele (songs) 
of various kinds, genealogies and honorific stories * * * [much 
of which] was used as an accompaniment to the hula.'' \22\ 
Hawaiians also had a ``rich artistic life in which they created 
colorful feathered capes, substantial temples, carved images, 
formidable voyaging canoes, tools for fishing and hunting, 
surfboards, weapons of war, and dramatic and whimsical 
dances.'' \23\
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    \22\ 1 Kuykendall, supra at 10-11.
    \23\ Jon M. Van Dyke, The Political Status of the Native Hawaiian 
People, 17 Yale L. & Pol'y Rev. 95, 95 (1998) (citing, e.g., Joseph 
Feher, Hawai'i: A Pictorial History 36-132 (1969)).
---------------------------------------------------------------------------
    The communal nature of the economy and the caste structure 
of the society resulted in values strikingly different from 
those prevalent in more competitive western economies and 
societies. For example, Hawaiian culture stressed cooperation, 
acceptance, and generosity, and focused primarily on day-to-day 
living.\24\
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    \24\ See, e.g., Fuchs, supra at 74-75.
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    Hawai'i was not utopia. There were wars between the island 
chiefs and among other ali'i. Natural disasters, such as tidal 
waves and volcanic eruptions, often killed or displaced whole 
villages. But Hawai'i's social, economic, and political system 
was highly developed and evolving, and its population, 
conservatively estimated to be at least 300,000 \25\ was 
relatively stable before the arrival of the first European 
explorers.
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    \25\ This estimate is conservative; other sources place the number 
at one million. David E. Stannard, Before the Horror: the Population of 
Hawai'i on the Eve of Western Contact 59 (1989).
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    Hawai'i was ``discovered'' by Europeans in 1778, when the 
first haole, or white foreigner, Captain James Cook of the 
British Royal Navy, landed. Because he arrived during a 
festival associated with Lono in a ship whose profile resembled 
Lono's symbol, he was greeted as that long-departed god. Other 
foreign vessels soon followed on journeys of exploration or 
trade.\26\
---------------------------------------------------------------------------
    \26\ E.S. & Elizabeth G. Handy, Native Planters in Old Hawai'i 331 
(1972).
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    In the years that followed the arrival of Cook and other 
non-Hawaiians, warring Hawaiian kings, now aided by haole 
weapons and advisers, fought for control of Hawai'i. King 
Kamehameha I won control of the Big Island of Hawai'i, and then 
successfully invaded Maui, Lana'i, Moloka'i, and O'ahu. By 
1810, he also gained the allegiance of the King of Kaua'i. 
Despite the political unification of the islands, Kamehameha 
I's era was but another in a series of steps toward the 
devastation of the Hawaiian people.
    The immediate and brutal decline of the Native Hawaiian 
population was the most obvious result of contact with the 
West. Between Cook's arrival and 1820, disease, famine, and war 
killed more than half of the Native Hawaiian population. By 
1866 only 57,000 Native Hawaiians remained from the basically 
stable pre-1778 population of at least 300,000. The impact was 
greater than the numbers can convey: old people were left 
without the young adults who supported them; children were left 
without parents or grandparents. The result was a rending of 
the social fabric.
    This devastating population loss was accompanied by 
cultural, economic, and psychological destruction. Western 
sailors, merchants, and traders did not respect Hawaiian kapu 
(taboos) or religion and were beyond the reach of the priests. 
The chiefs began to imitate the foreigners whose ships and arms 
were so superior to their own. The kapu were abolished soon 
after Kamehameha I died.\27\ Christianity, principally 
represented by American missionaries, quickly flowed into the 
breach. Christianity condemned not only the native religion, 
but the world view, language, and culture that were intertwined 
with it. The loss of the old gods, along with the law and 
culture predicated on their existence, resulted in substantial 
social conflict and imbalance.\28\
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    \27\ See Fuchs, supra at 8-9.
    \28\ Id. at 9; Kuykendall & Day, supra, at 40-41.
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    Western merchants also forced rapid change in the islands' 
economy. Initially, Hawaiian chiefs sought to trade for western 
goods and weapons, taxing and working commoners nearly to death 
to obtain the supplies and valuable sandalwood needed for such 
trades and nonetheless becoming seriously indebted. As 
Hawai'i's stock of sandalwood declined, so, too, did that 
trade, but it was replaced by whaling and other mercantile 
activities.\29\ More than four-fifths of Hawai'i's foreign 
commerce was American; the whaling services industry and 
mercantile business in Honolulu were almost entirely in 
American hands.\30\ What remained to the Hawaiian people was 
their communal ownership and cultivation of land, but, as 
described, that, too was soon replaced by a western system of 
individual property ownership.
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    \29\ See Fuchs, supra, at 10-11; Kuykendall & Day, supra, at 41-43; 
MacKenzie, supra, at 5.
    \30\ See Fuchs, supra, at 18-19; Mackenzie, supra, at 6, 9-10.
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    As the middle of the 19th century approached, the islands' 
small non-native population wielded an influence far in excess 
of its size.\31\ These influential westerners sought to limit 
the absolute power of the Hawaiian king over their legal rights 
and to implement property law so that they could accumulate and 
control land. By dint of foreign pressure, these goals were 
achieved.\32\ In 1840, King Kamehameha III promulgated a new 
constitution, establishing a hereditary House of Nobles and an 
elected House of Commons. And in 1842, the King authorized the 
Mahele--the beginning of the division of Hawai'i's communal 
land which led to the transfer of substantial amounts of land 
to western hands. In the 1848 Mahele, the King conveyed about 
1.5 million of the approximately 4 million acres in the islands 
to the main chiefs; he reserved about 1 million acres for 
himself and his royal successors (Crown Lands), and allocated 
about 1.5 million acres to the government of Hawai'i 
(Government Lands). All land remained subject to the rights of 
native tenants. In 1850, after the division was accomplished, 
an act was passed permitting non-natives to purchase land in 
fee simple. The expectation was that commoners would receive a 
substantial portion of the lands that were distributed to the 
chiefs because they were entitled to file claims to the lands 
that their ancestors had cultivated. In the end, however, only 
28,600 acres (less than 1% of the land) were awarded to about 
8,000 individual farmers.\33\
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    \31\ See Felix S. Cohen, Handbook of Federal Indian Law 799 (2d ed. 
1982) (``[a] small number of Westerners residing in Hawai'i, bolstered 
by Western warships which intervened at critical times, exerted 
enormous political influence[.]'').
    \32\ See e.g., Mackenzie, supra, at 6; 1 Kuykendall, supra, at 206-
26.
    \33\ Many maka'ainana (commoners) did not secure their land because 
they did not know of or understand the new laws, could not afford the 
survey costs, feared that a claim would be perceived as a betrayal of 
the chief, were unable to farm without the traditional common 
cultivation and irrigation of large areas, were killed in epidemics, or 
migrated to cities. Id.
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    Soon after the Mahele, there was a dramatic concentration 
of land ownership in plantations, estates, and ranches owned by 
non-natives. Ultimately, the 2,000 westerners who lived on the 
islands obtained much of the profitable acreage from the 
commoners and chiefs.
    These economic changes were devastating for the Native 
Hawaiian people. The communal land system of subsistence 
farming was replaced by an economy dominated by western-owned 
plantation agriculture, and water formerly used for taro 
cultivation was increasingly diverted for irrigation of sugar 
plantations. Native Hawaiians were not considered sufficiently 
cheap, servile labor for the backbreaking plantation work, and, 
indeed, did not seek it. Unable successfully to adjust either 
to the new economic life of the plantation or to the 
competitive economy of the city, many Native Hawaiians became 
part of ``the floating population crowding into the congested 
tenement districts of the larger towns and cities of the 
Territory'' under conditions which many believed would 
``inevitably result in the extermination of the race.'' \34\ 
Native Hawaiians developed a debilitating sense of inferiority, 
and descended to the bottom tier of the economy and the society 
of Hawai'i.
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    \34\ (quoting S. Con. Res. 2, 10th Leg. of the Territory of 
Hawai'i, 1991 Senate Journal 25-26).
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    The mutual interests of Americans living in Hawai'i and the 
United States became increasingly clear as the 19th century 
progressed. American merchants and planters in Hawai'i wanted 
access to mainland markets and protection from European and 
Asian domination. The United States developed a military and 
economic interest in placing Hawai'i within its sphere of 
influence. In 1826, the United States and Hawai'i entered into 
the first of the four treaties the two nations signed during 
the 19th century. Americans remained concerned, however, about 
the growing influence of the English (who briefly purported to 
annex Hawai'i in 1842) and the French (who forced an 
unfavorable treaty on Hawai'i in 1839 and landed troops in 
1849). American advisors urged the King to pursue international 
recognition of Hawaiian sovereignty, backed up by an American 
guarantee of continued independence.
    In pronouncements made during the 1840s, the administration 
of President John Tyler announced the Tyler Doctrine, an 
extension of the Monroe Doctrine. It asserted that the United 
States had a paramount interest in Hawai'i and would not permit 
any other nation to have undue control or exclusive commercial 
rights there. Secretary of State Daniel Webster explained:

          The United States * * * are more interested in the 
        fate of the islands, and of their government, than any 
        other nation can be; and this consideration induces the 
        President to be quite willing to declare, as the sense 
        of the Government of the United States, that the 
        Government of the * * * Islands ought to be respected; 
        that no power ought either to take possession of the 
        islands as conquest, or for the purpose of 
        colonization, and that no power ought to seek for any 
        undue control over the existing government, or any 
        exclusive privileges or preferences in matters of 
        commerce.\35\
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    \35\ S. Exec. Doc. No. 52-77, 40-41 (1893) (describing 1842 
statement).

    America's already ascendant political influence in Hawai'i 
was heightened by the rapid growth of the island sugar industry 
which followed the Mahele. Sugar planters in Hawai'i were eager 
to eliminate the United States' tariff on their exports to 
California and Oregon. Although sugar growers within the United 
States strongly resisted the lifting of the tariff, American 
fear of ``incipient foreign domination of the Islands'' was a 
stronger influence than the mainland growers' lobby. The 1875 
Convention on Commercial Reciprocity \36\ eliminated the 
American tariff on sugar from Hawai'i and virtually all tariffs 
that Hawai'i had placed on American products. Critically, it 
also prohibited Hawai'i from giving political, economic, or 
territorial preferences to any other foreign power. Finally, 
when the Reciprocity Treaty was extended in 1887, the United 
States also obtained the right to establish a military base at 
Pearl Harbor.
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    \36\ Jan. 30, 1875, U.S.-Haw., 19 Stat. 625 (1875) (Reciprocity 
Treaty).
---------------------------------------------------------------------------
    Americans were determined to ensure that the Hawaiian 
government did nothing to damage Hawai'i's growing political 
and economic relationship with America. But the Hawaiian King 
and people were bitter about the loss of their lands to 
foreigners and were hostile both to the tightening bond with 
the United States and the increasing importation of Asian labor 
to work the plantations.
    Matters came to a head in 1887, when King Kalakaua 
appointed a prime minister who had the strong support of the 
Hawaiian people and who opposed granting a base at Pearl Harbor 
as a condition for extension of the Reciprocity Treaty, and 
took other measures that were considered anti-western. The 
business community, backed by the non-native military group, 
the Honolulu Rifles, forced the prime minister's resignation 
and the enactment of a new constitution. The newconstitution--
often referred to as the Bayonet Constitution--reduced the king to a 
figure of minor importance. It extended the right to vote to western 
males whether or not they were citizens of the Hawaiian Kingdom, and 
disenfranchised almost all native voters by giving only residents with 
a specified income level or amount of property the right to vote for 
members of the House of Nobles. The representatives of propertied 
westerners took control of the legislature. A suspected native revolt 
in favor of the King's younger sister, Princess Lili'uokalani, and a 
new constitution were quelled when the American minister summoned 
United States Marines from an American warship off Honolulu. Westerners 
remained firmly in control of the government until the death of the 
King in 1891, when Queen Lili'uokalani came to power.
    On January 14, 1893, the Queen was prepared to promulgate a 
new constitution, restoring the sovereign's control over the 
House of Nobles and limiting the franchise to Hawaiian 
subjects.\37\ She was, however, forced to withdraw her proposed 
constitution.\38\
---------------------------------------------------------------------------
    \37\ See MacKenzie, supra at 11; 3 Kuykendall, supra at 585-86.
    \38\ See Fuchs, supra at 30.
---------------------------------------------------------------------------
    Despite the Queen's apparent acquiescence, the majority of 
westerners recognized that the Hawaiian monarchy posed a 
continuing threat to the unimpeded pursuit of their interests. 
They formed a Committee of Public Safety to overthrow the 
Kingdom. Mercantile and sugar interests also favored annexation 
by the United States to ensure access on favorable terms to 
mainland markets and protection from Oriental conquest.
    A Honolulu publisher and member of the Committee, Lorrin 
Thurston, informed the United States of a plan to dethrone the 
Queen. In response, the Secretary of the Navy informed Thurston 
that President Harrison had authorized him to say that ``if 
conditions in Hawai'i compel you to act as you have indicated, 
and you come to Washington with an annexation proposition, you 
will find an exceedingly sympathetic administration here.\39\ 
The American annexation group collaborated closely with the 
United States' Minister in Hawai'i, John Stevens.
---------------------------------------------------------------------------
    \39\ L.A. Thurston, Memoirs of the Hawaiian Revolution 230-32 
(1936).
---------------------------------------------------------------------------
    On January 16, 1893, at the order of Minister Stevens, 
American soldiers marched through Honolulu, to a building known 
as Anion Hall, located near both the government building and 
the palace. The next day, local revolutionaries seized the 
government building and demanded that Queen Lili'uokalani 
abdicate. Stevens immediately recognized the rebels' 
``provisional government'' and placed it under the United 
States' protection.
    President Harrison promptly sent an annexation treaty to 
the Senate for ratification and denied any United States 
involvement in the revolution. Before the Senate could act, 
however, President Cleveland, who had assumed office in March 
of 1893, withdrew the treaty. An investigator reported that the 
revolution had been accomplished by force with American 
assistance and against the wishes of Hawaiians.\40\ To 
Congress, President Cleveland declared:
---------------------------------------------------------------------------
    \40\ See Kuykendall & Day, supra at 179.

          [I]f a feeble but friendly state is in danger of 
        being robbed of its independence and its sovereignty by 
        a misuse of the name and power of the United States, 
        the United States cannot fail to vindicate its honor 
        and its sense of justice by an earnest effort to make 
        all possible reparation.\41\
---------------------------------------------------------------------------
    \41\ President's Message Relating to the Hawaiian Islands, House 
Ex. Doc. No. 47, 53d Cong., 2d Sess. (December 18, 1893), reprinted in 
Foreign Relations of the United States: 1894: Affairs in Hawai'i, App. 
II, at 443, 457 (1895).

    Cleveland demanded the restoration of the Queen. But the 
Senate Foreign Relations Committee issued a report ratifying 
Stevens' actions and recognizing the provisional government, 
explaining that relations between the United States and Hawai'i 
are unique because ``Hawai'i has been all the time under a 
virtual suzerainty of the United States.'' \42\
---------------------------------------------------------------------------
    \42\ S. Rep. No. 53-277, at 21 (1894) (emphasis supplied).
---------------------------------------------------------------------------
    As a result of this impasse, the United States government 
neither restored the Queen nor annexed Hawai'i. The Provisional 
Government thus called a constitutional convention whose 
composition and members it controlled.\43\ The convention 
promulgated a constitution for the new Republic of Hawai'i that 
imposed property and income qualifications as prerequisites for 
the franchise and for the holding of elected office.\44\ 
Furthermore, Article 101 of the Constitution of the Republic of 
Hawai'i required prospective voters to swear an oath in support 
of the Republic and declaring that they would not, ``either 
directly or indirectly, encourage or assist in the restoration 
or establishment of a monarchical form of government in the 
Hawaiian Islands.'' The overwhelming majority of the Native 
Hawaiian population, loyal to their Queen, refused to swear 
such an oath and was thus effectively disenfranchised.\45\
---------------------------------------------------------------------------
    \43\ See Kuykendall & Day, supra at 183.
    \44\ Id. at 184; MacKenzie, supra at 13.
    \45\ Noenoe Silva, Ke Ku'e Kupa'a Loa Nei Makou: Kanaka Maoli 
Resistance to Colonization 170 (1999) (Silva).
---------------------------------------------------------------------------
    ``Native Hawaiians were, perhaps, not extremely 
sophisticated in governmental matters, but it took no great 
amount of political insight to perceive that this 
constitutional system was a beautifully devised oligarchy 
devoted to the purpose of keeping the American minority in 
control of the Republic.'' \46\ The Republic also claimed title 
to the Government Lands and Crown Lands without paying 
compensation to the monarch.\47\ In 1894 Sanford Dole was 
elected President of the Republic of Hawai'i and the United 
States gave his government prompt recognition.\48\
---------------------------------------------------------------------------
    \46\ W.A. Russ, The Hawaiian Republic (1894-1898) 33-34 (1961).
    \47\ See MacKenzie, supra at 13.
    \48\ A short-lived counter-revolution commenced on January 7, 1895. 
Republic police discovered it, arrested many royalist leaders, and 
imprisoned the Queen. Eventually, she was forced to swear allegiance to 
the new Republic in exchange for clemency for the revolutionaries. 
MacKenzie, supra at 13; Fuchs, supra at 34-35; Silva, supra at 172-176. 
Among those arrested for supporting the counter-revolution were Robert 
Wilcox and Prince Jonah Kuhio Kalaniana'ole, later elected as the 
Territory of Hawai'i's first and second Delegates, respectively, to the 
U.S. House of Representatives.
---------------------------------------------------------------------------
    The election of President McKinley in 1896 gave the 
annexation movement new vigor. Another annexation treaty was 
sent to the Senate. Simultaneously, the Native Hawaiian people 
adopted resolutions which they sent to Congress statingthat 
they opposed annexation and wanted to be an independent kingdom.\49\ 
The annexation treaty failed in the Senate because a two-thirds 
majority could not be obtained as required under the Treaty Clause of 
the U.S. Constitution. Accordingly, pro-annexation forces in the House 
of Representatives introduced a Joint Resolution of Annexation, the 
adoption of which required only a simple majority in each House of 
Congress. The balance was tipped at this moment by the United States' 
entry into the Spanish-American War. American troops were fighting in 
the Pacific, particularly in the Philippines, and the United States 
needed to be sure of a Pacific base.\50\ In July 1898, the Joint 
Resolution was enacted--``the fruit of approximately seventy-five years 
of expanding American influence in Hawai'i.'' \51\
---------------------------------------------------------------------------
    \49\ Russ, supra at 198, 209. The resolutions were signed by 21,269 
people, representing more than 50% of the Native Hawaiian population in 
Hawai'i at that time. See Van Dyke, supra at 103 & n.48 (citing Dan 
Nakaso, Anti-Annexation Petition Rings Clear, Honolulu Advertiser, Aug. 
5, 1998, at 1); Tom Coffman, Nation Within: The Story of America's 
Annexation of the Nation of Hawai'i 273-82 (1998); Silva, supra at 184-
206.
    \50\ See Kuykendall & Day, supra at 188; MacKenzie, supra at 14.
    \51\ Fuchs, supra at 36.
---------------------------------------------------------------------------
    On August 12, 1898, the Republic of Hawai'i ceded 
sovereignty and conveyed title to its public lands, including 
the Government and Crown Lands, to the United States.\52\ In 
1900 Congress passed the Hawai'i Organic Act,\53\ establishing 
Hawaiians territorial government. And, with the enactment of 
the Admission Act in 1959, Congress admitted Hawai'i to the 
Union as the fiftieth state.
---------------------------------------------------------------------------
    \52\ Joint Resolution for Annexing the Hawaiian Islands to the 
United States, ch. 55, 30 Stat. 750, 751 (1898) (Annexation 
Resolution).
    \53\ Act of April 30, 1900, ch. 339, 31 Stat. 141 (1900) (Organic 
Act).
---------------------------------------------------------------------------

Hawaiian Homes Commission Act

    Congress explicitly recognized the existence of a special 
or trust relationship between the Native Hawaiian people and 
the United States with the enactment of the Hawaiian Homes 
Commission Act in 1921.
    In 1826 it was estimated that there were 142,650 full-
blooded Native Hawaiians in the Hawaiian islands. By 1919 their 
numbers had been reduced to 22,600. Historically, the Native 
Hawaiian's subsistence lifestyles required that they live near 
the ocean to fish and near fresh water streams to irrigate 
their staple food crop (taro) within their respective ahupua'a. 
Beginning in the early 1800's, more and more land was being 
made available to foreigners and was eventually leased to them 
to cultivate pineapple and sugar cane. Large numbers of Native 
Hawaiians were forced off the lands that they had traditionally 
occupied. As a result, they moved into the urban areas, often 
lived in severely-overcrowded tenements and rapidly contracted 
diseases for which they had no immunities.
    By 1920, there were many who were concluding that the 
native people of Hawai'i were a ``dying race,'' and that if 
they were to be saved from extinction, they must have the means 
of regaining their connection to the land, the 'aina. In 
hearings on the matter, Secretary of the Interior Franklin Lane 
explained the trust relationship on which the statute was 
premised:

          One thing that impressed me * * * was the fact that 
        the natives of the islands who are our wards, I should 
        say, and for whom in a sense we are trustees, are 
        falling off rapidly in numbers and many of them are in 
        poverty.\54\
---------------------------------------------------------------------------
    \54\ H.R. Rep. No. 66-839, at 4 (1920).

    Lane explicitly analogized the relationship between the 
United States and Native Hawaiians to the trust relationship 
between the United States and other Native Americans, 
explaining that special programs for Native Hawaiians are fully 
supported by history and ``an extension of the same idea'' that 
supports such programs for other Indians.\55\
---------------------------------------------------------------------------
    \55\ Hearings before the Committee on the Territories, House of 
Representatives, 66th Cong., 2d Sess., on Proposed Amendments to the 
Organic Act of the Territory of Hawai'i, February 3, 4, 5, 7, and 10, 
1920, at 129-30 (statement of Secretary Lane that ``[w]e have got the 
right to set aside these lands for this particular body of people, 
because I think the history of the islands will justify that before any 
tribunal in the world,'' and rejecting the argument that legislation 
aimed at ``this distinct race'' would be unconstitutional because ``it 
would be an extension of the same idea'' as that established in dealing 
with Indians); see also id. at 127 (colloquy between Secretary Lane and 
Representative Monahan, analogizing status of Native Hawaiians to that 
of Indians), and at 167-70 (colloquy between Representative Curry, 
Chair of the Committee, and Representatives Dowell, and Humphreys, 
making the same analogy and rejecting the objection that ``we have no 
government or tribe to deal with here'').
---------------------------------------------------------------------------
    Senator John H. Wise, a member of the Legislative 
Commission of the Territory of Hawai'i, testified before the 
United States House of Representatives:

          The idea in trying to get the lands back to some of 
        the Hawaiians is to rehabilitate them. I believe that 
        we should get them on lands and let them own their own 
        homes * * *. The Hawaiian people are a farming people 
        and fishermen, out of door people, and when they were 
        frozen out of their lands and driven into the cities 
        they had to live in the cheapest places, tenements. 
        That is one of the reasons why the Hawaiian people are 
        dying. Now, the only way to save them, I contend, is to 
        take them back to the lands and give them the mode of 
        living that their ancestors were accustomed to and in 
        that way rehabilitate them.\56\
---------------------------------------------------------------------------
    \56\ Id. at 3-4. Wise's testimony was quoted and adopted in the 
House Committee on the Territories' report to the full U.S. House of 
Representatives.

    Prince Jonah Kuhio Kalanianaole (Prince Kuhio), the 
Territory's sole delegate to Congress, testified before the 
full U.S. House of Representatives: ``The Hawaiian race is 
passing. And if conditions continue to exist as they do today, 
this splendid race of people, my people, will pass from the 
face of the earth.'' \57\ Secretary of Interior Lane attributed 
the declining population to health problems like those faced by 
the ``Indian in the United States'' and concluded the Nation 
must provide similar remedies.\58\
---------------------------------------------------------------------------
    \57\ 59 Cong. Rec. 7453 (1920) (statement of Delegate Jonah Kuhio 
Kalaniana'ole).
    \58\ H.R. Rep. 839, 66th Cong., 2d Sess. 5 (statement of Secretary 
Lane).
---------------------------------------------------------------------------
    The effort to ``rehabilitate'' this dying race by returning 
Native Hawaiians to the land led the Congress to enact the 
Hawaiian Homes Commission Act on July 9, 1921. The Act sets 
aside approximately 203,500 acres of public lands (former Crown 
and Government lands ceded to the United States upon 
Annexation) for homesteading by Native Hawaiians.\59\ Congress 
compared the Act to ``previous enactments granting Indians * * 
* special privileges in obtaining and using the public lands.'' 
\60\
---------------------------------------------------------------------------
    \59\ Hawaiian Homes Commission Act, Sec. 203.
    \60\ H.R. Rep. No. 66-839, at 11 (1920).
---------------------------------------------------------------------------
    In support of the Act, the House Committee on the 
Territories recognized that, prior to the Mahele, Hawaiians had 
a one-third interest in the land. The Committee reported that 
the Act was necessary to address the way Hawaiians had been 
short-changed in prior land distribution schemes. Prince Kuhio 
further testified before the U.S. House of Representatives that 
Hawaiians had an equitable interest in the unregistered lands 
that reverted to the Crown before being taken by the 
Provisional Government and, subsequently, the Territorial 
Government:

          [T]hese lands, which we are now asking to be set 
        aside for the rehabilitation of the Hawaiian race, in 
        which a one-third interest of the common people had 
        been recognized, but ignored in the division, and which 
        reverted to the Crown, presumably in trust for the 
        people, were taken over by the Republic of Hawai'i. * * 
        * By annexation these lands became a part of the public 
        lands of the United States, and by the provisions of 
        the organic act under the custody and control of the 
        Territory of Hawai'i. * * * We are not asking that what 
        you are to do be in the nature of a largesse or as a 
        grant, but as a matter of Justice.\61\
---------------------------------------------------------------------------
    \61\ 59 Cong. Rec. 7453 (1920) (statement of Delegate Jonah Kuhio 
Kalaniana'ole).

    The Act provides that the lessee must be a Native Hawaiian, 
who is entitled to a lease for a term of ninety-nine years, 
provided that the lessee occupy and use or cultivate the tract 
within one year after the lease is entered into. A restriction 
on alienation, like those imposed on Indian lands subject to 
allotment, was included in the lease. Also like the general 
allotment acts affecting Indians,\62\ the leases were intended 
to encourage rural homesteading so that Native Hawaiians would 
leave the urban areas and return to rural subsistence or 
commercial farming and ranching. In February, 1923, the 
Congress amended the Act to permit one-half acre residence lots 
and to provide for home construction loans. Thereafter, the 
demand for residential lots far exceeded the demand for 
agricultural or pastoral lots.\63\
---------------------------------------------------------------------------
    \62\ 25 U.S.C. Sec. Sec. 331-334, 339, 342, 348, 349, 354, 381 
(1998).
    \63\ Office of State Planning, Office of the Governor, Pt. I, 1 
Report on Federal Breaches of the Hawaiian Home Lands Trust, 4-6 
(1992).
---------------------------------------------------------------------------
    For the next forty years, during the Territorial period 
(1921-1959) and the first two decades of statehood (1959-1978), 
inadequate funding forced the Department of Hawaiian Home Lands 
to lease its best lands to non-Hawaiians in order to generate 
operating funds. There was little income remaining for the 
development of infrastructure or the settlement of Hawaiians on 
the home lands. The lack of resources--combined with 
questionable transfers and exchanges of Hawaiian home lands, 
and a decades-long waiting list of those eligible to reside on 
the home lands--rendered the home lands program a tragically 
illusory promise for most Native Hawaiians.\64\ While the Act 
did not succeed in its purpose, its enactment has substantial 
importance because it constitutes an express affirmation of the 
United States' trust responsibility to the Native Hawaiian 
people.
---------------------------------------------------------------------------
    \64\ Id. at 12.
---------------------------------------------------------------------------

Hawai'i Admission Act

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

          As a compact with the United States relating to the 
        management and disposition of the Hawaiian home lands, 
        the Hawaiian Homes Commission Act, 1920, as amended, 
        shall be adopted as a provision of the Constitution of 
        said State, as provided in section 7, subsection (b) of 
        this Act, subject to amendment or repeal only with the 
        consent of the United States, and in no other manner: 
        Provided, That (1) * * * the Hawaiian home-loan fund, 
        the Hawaiian home-operating fund, and the Hawaiian 
        home-development fund shall not be reduced or impaired 
        by any such amendment, whether made in the constitution 
        or in the manner required for State legislation, and 
        the encumbrances authorized to be placed on Hawaiian 
        home lands by officers other than those charged with 
        the administration of said Act, shall not be increased, 
        except with the consent of the United States; (2) that 
        any amendment to increase the benefits to lessees of 
        Hawaiian home lands may be made in the constitution, or 
        in the manner required for State legislation, but the 
        qualifications of lessees shall not be changed except 
        with the consent of the United States; and (3) that all 
        proceeds and income from ``available lands'', as 
        defined by said Act, shall be used only in carrying out 
        the provisions of said Act.\65\
---------------------------------------------------------------------------
    \65\ Hawai'i Admission Act, Sec. 4, 73 Stat. at 5.
---------------------------------------------------------------------------
          The lands granted to the State of Hawai'i by 
        subsection (b) of this section and public lands 
        retained by the United States under subsections (c) and 
        (d) and later conveyed to the State under subsection 
        (e), together with the proceeds from the sale or other 
        disposition of any such lands and the income therefrom, 
        shall be held by said State as a public trust for the 
        support of public schools and other public educational 
        institutions, for the betterment of the conditions of 
        native Hawaiians, as defined in the Hawaiian Homes 
        Commission Act, 1920, as amended, for the development 
        of farm and home ownership on as widespread a basis as 
        possible for the making of public improvements, and for 
        the provision of lands for public use. Such lands, 
        proceeds, and income shall be managed and disposed of 
        for one or more of the foregoing purposes in such 
        manner as the constitution and laws of said State may 
        provide, and their use for any other object shall 
        constitute a breach of trust for which suit may be 
        brought by the United States.\66\
---------------------------------------------------------------------------
    \66\ Id. Sec. 5(f), 73 Stat. at 6.

    These were explicit delegations of Federal authority to be 
assumed by the new State. They were not discretionary. The 
language is not permissive. The United States did not absolve 
itself from any further responsibility in the administration or 
amendment of the Hawaiian Homes Commission Act. Nor did the 
United States divest itself of any ongoing role in overseeing 
the use of ceded lands or the income or proceeds therefrom. 
Sections 4 and 5(f) of the Hawai'i Admission Act, quoted above, 
clearly contemplate a continuing Federal role, as do sections 
204 and 223 of the Hawaiian Homes Commission Act, which provide 
that the consent of the Secretary of the Interior must be 
obtained for certain exchanges of trust lands and reserved to 
Congress the right to amend that Act. The Federal and State 
courts have repeatedly noted that the United States retains the 
authority to bring an enforcement action against the State of 
Hawai'i for breach of the section 5(f) trust.\67\ Despite the 
overthrow and annexation of the Hawaiian nation, Native 
Hawaiian culture has survived, and the Native Hawaiian people 
have a unique culture that continues today.
---------------------------------------------------------------------------
    \67\ Han v. United States, 45 F3d 333 (9th Cir. 1995); Pele Defense 
Fund v. Paty, 837 P2d 1247 (Hawai'i, 1992), cert. denied, 507 U.S. 1163 
(1996).
---------------------------------------------------------------------------

Native Hawaiian culture, traditions, political organization, and 
        navigation

    Aloha 'Aina (Love of the Land)--Native Hawaiians honored 
their bond with the land (aloha 'aina) by instituting one of 
the most sophisticated environmental regulatory systems on 
earth, the kapu system. For Hawaiians, the life of the land 
depended on the righteousness of the people.\68\ This concept 
motivated three decades of efforts by Hawaiian leaders to 
regain Kaho'olawe, an island with deep spiritual significance. 
Once a military bombing practice target, Kaho'olawe is now 
listed in the National Register of Historic Places and is the 
subject of a massive Federal clean-up project.\69\
---------------------------------------------------------------------------
    \68\ The State's motto reflects this concept: ``Ua mau ke ea o ka 
'aina i ka pono.'' (The life of the land is perpetuated in 
righteousness.) Haw. Const. Art. XV, Sec. 5 (1993).
    \69\ Kaho'olawe Island: Restoring a Cultural Treasure. Final Report 
of the Kaho'olawe Island Conveyance Commission to the Congress of the 
United States 2 (March 31, 1993) (``This report calls upon the United 
States government to return to the people of Hawai'i an important part 
of their history and culture, the island of Kaho'olawe. The island is a 
special place, a sanctuary, with a unique history and culture contained 
in its land, surrounding waters, ancient burial places, fishing 
shrines, and religious monuments''). Title X of the Fiscal Year 1994 
Department of Defense Appropriations Act, Pub. L. No. 103-139, 107 
Stat. 1418 (1994) was enacted on November 11, 1993, Section 10001(a) of 
Title X states that the island of Kaho'olawe is among Hawai'i's 
historic lands and has a long, documented history of cultural and 
natural significance to the people of Hawai'i. It authorized 
$400,000,000 to be spent for the clean-up of military ordnance from 
portions of the island. Id. See Haw. Rev. Stat. Chap. 6K (1993). The 
state Kaho'olawe Island Reserve Commission holds the resources and 
waters of the island of Kaho'olawe in trust until such time as the 
State of Hawai'i and the federal government recognize a sovereign 
Hawaiian entity. Id. at Sec. 6K-9.
---------------------------------------------------------------------------
    Subsistence--Ancient Native Hawaiians supplemented the 
produce of their farms and fishponds by fishing, hunting, and 
gathering plants. These subsistence activities became 
increasingly more difficult to pursue as changing land 
ownership patterns barred access to natural resources. 
Nonetheless, in predominantly Hawaiian rural areas such as 
Hana, Puna, and the island of Moloka'i, Native Hawaiians 
continue to feed their families as their ancestors did before 
them.\70\ Hawai'i law has always guaranteed subsistence 
gathering rights to the people so they may practice native 
customs and traditions.\71\
---------------------------------------------------------------------------
    \70\ See Davianna McGregor, et al., Contemporary Subsistence 
Fishing Practices Around Kaho'olawe: Study Conducted for the NOAA 
National Marine Sanctuaries Program (May 1997). See also Jon K. 
Matsuoka, et. al., Governor's Moloka'i Subsistence Task Force Report 
(1993); Andrew Lind, An Island Community: Ecological Succession in 
Hawai'i 102-03 (1968 ed.). (observing, in 1938, that traditional and 
customary practices survived in rural ``havens where the economy of 
life to which they are best adapted can survive.''). Hawaiian homestead 
tracts provide such rural havens.
    \71\ Haw. Const. Art. XII, Sec. 7 (1978). Hawaiian usage supersedes 
other sources of common law in Hawai'i. Haw. Rev. Stat. 1-1 (1993); 
Branca v. Makuakane, 13 Haw. 499, 505 (1901) (``The common law was not 
formally adopted until 1893 and then subject to precedents and Hawaiian 
national usage.''). See also Haw. Rev. Stat. 7-1 (1993); Kalipi v. 
Hawaiian Trust Co., 656 P.2d 745 (Haw. 1982); Pele Defense Fund v. 
Paty, 837 P.2d 1247 (Haw. 1992) cert. denied, 507 U.S. 918 (1993); 
Public Access Shoreline Hawai'i v. Hawai'i County Planning Commission, 
903 P.2d 1246 (Haw. 1995), cert. denied, 517 U.S. 1163 (1996).
---------------------------------------------------------------------------
    Kalo (Taro Cultivation)--In Hawaiian legend, the staple 
crop of kalo (taro) was revered as the older brother of the 
Hawaiian people.\72\ Taro cultivation was not only a means of 
sustenance, but also a sacred duty of care to an older sibling. 
As land tenure changed, however, the ancient, stream-irrigated 
taro paddies (lo'i) were lost to newer crops, encroaching 
development, and the diversion of rivers and streams.\73\ In 
recent years, Native Hawaiians have reclaimed and restored 
ancient taro fields, and formed a statewide association of 
native planters, 'Onipa'a Na Hui Kalo.
---------------------------------------------------------------------------
    \72\ Lilikala Kame'elehiwa, Native Land and Foreign Desires: Pehea 
La E Pono Ali? 23-33 (1992). Hawaiian legend traces the ancestry of 
Hawai'i islands and people to the sky god, Wakea, and earth goddess, 
Papa. Their first-born child, Haloa naka, was stillborn and his small 
body, when buried, became the first taro root. Their second child, 
Halao, named for the first, was the first Hawaiian. 6 A. Fornander, 
Collection of Hawaiian Antiquities and Folklore 360 (1920): David Malo, 
Hawaiian Antiquities 244 (1951).
    \73\ See e.g., Reppun v. Board of Water Supply, 656 P.2d 57 (Haw. 
1982) (in this case, taro growers prevailed against water diversions 
that would have adversely affected their crops), cert. denied, 471 U.S. 
1040 (1985).
---------------------------------------------------------------------------
    'Ohana (Extended Family)--In the earliest era of Hawaiian 
settlement, governance was a function of the family.\74\ For 
Native Hawaiians, family included blood relatives, beloved 
friends (hoaloha) and informally adopted children (hanai).\75\ 
Family genealogies were sacred, and passed down in the form of 
oral chants only to specially chosen children--when those 
children were barred from learning their language, many of 
these ancient genealogies were lost. Nevertheless, family 
traditions of respect for elders, mutual support for kin and 
the adoption of related children have continued over the past 
two centuries.
---------------------------------------------------------------------------
    \74\ See generally E.S. Craighill Handy and Mary Kawena Pukui, The 
Polynesian Family System in Ka'u (1952); 1 Mary Kawena Pukui, E.W. 
Haertig & Catherine A. Lee, Nana I Ke Kumu 49-50 (6th pag. 1983) 
(explaining Hawaiian concepts of adoption and fostering).
    \75\ 'Ohana is a concept that has long been recognized by Hawai'i 
courts. See, e.g., Leong v. Takasaki, 520 P.2d 758, 766 (Haw. 1976); 
Estate of Cunha, 414 P.2d 925-129 (Haw. 1966): Estate of Farrington, 42 
Haw. 640, 650-651 (1958); O'Brien v. Walker, 35 Haw. 104,117-36 (1939), 
aff'd., 115 F.2d 956 (9th Cir. 1940), cert. denied, 312 U.S. 707 
(1941); Estate of Kamauoha, 26 Haw. 439, 448 (1922); Estate of Nakuapa, 
3 Haw. 342, 342-43 (1872).
---------------------------------------------------------------------------
    The 'ohana beliefs, customs, and practices predated the 
ali'i; co-existed under the rule of the ali'i; and have 
continued to be practiced, honored and transmitted to the 
present. The 'ohana continued to honor their 'aumakua 
(ancestral deities). Traditional kahuna la'au lapa 'au (herbal 
healers) continue their healing practices using native Hawaiian 
plants and spiritual healing arts. Family burial caves and lava 
tubes continue to be cared for. The hula and chants continue to 
be taught, in distinctly private ways, through 'ohana 
lines.\76\ Today, there is an extensive and growing network of 
reclaimed family genealogies, one of which is formally 
maintained by the Office of Hawaiian Affairs (Operation 
'Ohana). Huge Hawaiian family reunions are routinely held 
throughout the islands, in every week of the year. In honor of 
a cultural tradition that reveres the taro root as the older 
brother of the Hawaiian race, these modern activities are 
called ``ho'i kou i ka mole,'' or ``return to the tap-root.''
---------------------------------------------------------------------------
    \76\ McGregor, supra, at 9.
---------------------------------------------------------------------------
    'Iwi (Bones)--In Hawaiian culture, the remains of the 
deceased carried the mana (spiritual power) of the decedent. 
These remains were treated with great reverence, andfearful 
consequences were sure to befall any who desecrated them. The 
protection of the bones of their ancestors remains a solemn 
responsibility for modern day Native Hawaiians. The State of Hawai'i 
has recognized the importance of protecting Native Hawaiian burial 
sites, and has established a Hawaiian Burial Council to ensure the 'iwi 
of Hawaiian ancestors are treated with proper respect.\77\
---------------------------------------------------------------------------
    \77\ Haw. Rev. Stat. Sec. 6E-43.5 (1993). This provision requires 
consultation with appropriate Native Hawaiian organizations, like Hui 
Malama I Na Kupuna O Hawai'i Nei.
---------------------------------------------------------------------------
    Wahi Kapu (Sacred Places)--Ancient Hawaiians also 
recognized certain places as sacred, and took extraordinary 
measures to prevent their desecration. A contemporary example 
of this concept is found at Mauna 'Ala on the island of O'ahu, 
where the remains of Hawai'i's ah'i (monarchs) are interred. 
This royal mausoleum is cared for by a kahu (guardian), who is 
the lineal descendant of the family charged since antiquity 
with protecting the bones of this line of chiefs.
    'Olelo Hawai'i (Hawaiian Language)--``I ka 'olelo no ke 
ola; i ka 'olelo no ka make. With language rests life, with 
language rests death.'' \78\ The Hawaiian language was banned 
from the schools in 1896.\79\ During the time of the Republic 
and the territorial period, the speaking of the Native Hawaiian 
language was strictly forbidden anywhere within school yards or 
buildings, and physical punishment for using it could be harsh. 
Teachers who were native speakers of Hawaiian (many were in the 
first three decades of the Territory) were threatened with 
dismissal for using Hawaiian in school. Some were even a bit 
leery of using Hawaiian place names in class. Teachers were 
sent to Hawaiian-speaking homes to reprimand parents for 
speaking Hawaiian to their children.\80\ The language was kept 
alive in rural Hawaiian families and in the mele oli (songs and 
chants) of native speakers.\81\
---------------------------------------------------------------------------
    \78\ Ka'u: University of Hawai'i Hawaiian Studies Task Force 
Report, 23 (Dec. 1986). These anti-Hawaiian language efforts were 
falsely cast in terms of assimilation and societal unity. Nevertheless, 
the core issues of sovereignty and self-determination remained for, 
``to destroy the language of a group is to destroy its culture.'' Adeno 
Addis, Individualism, Communitarianism, and the Rights of Ethnic 
Minorities, 66 Notre Dame L. Rev. 1219, 1270 (1991).
    \79\ Revised Laws of Hawai'i Sec. 2, at 156 (1905). As a direct 
result of this law, the number of schools conducted in Hawaiian dropped 
from 150 in 1880 to zero in 1902. Albert J. Schutz, The Voices of Eden: 
A History of Hawaiian Language Studies 352 (1994). Hawaiian language 
newspapers, which were the primary medium for communication in Hawai'i 
at that time, declined from a total of twelve (nine secular and three 
religious) in 1910 to one religious newspaper in 1948. Id. at 362-63.
    \80\ Larry K. Kimura and William Wilson, 1 Native Hawaiians Study 
Commission Minority Report, 196 (U.S. Dept. of Interior 1983). See also 
Davianna McGregor-Alegado, Hawaiians: Organizing in the 1970s. 7 
Amerasia Journal 29, 33 (1980) (``Through a systematic process of 
assimilation in the schools, especially restricting the use of the 
native language, Hawaiians were taught to be ashamed of their cultural 
heritage and feel inferior to the haole American elite in Hawai'i.'').
    \81\ ``[T]he renewal of interest in the Hawaiian language and 
culture in the 1970s did not relight an extinguished flame, but fanned 
and fed the embers[.]'' Schutz, supra, at 361.
---------------------------------------------------------------------------
    In 1978, the Hawai'i state Constitution was amended to make 
Hawaiian one of the two official languages of the State.\82\ In 
the past twenty-five years, Hawaiian language has become a 
required offering in the State Department of Education 
curriculum, and private non-profit Hawaiian language schools 
have been established in all major islands with the assistance 
of Federal funds.\83\ In 1997-1998, 1,351 students were 
enrolled in fourteen Hawaiian language immersion programs 
throughout the State, from pre-school through high school.\84\ 
Hawaiian remains the first language of the Native Hawaiian 
community located on the isolated island of Ni'ihau, which was 
spared the effects of the 1896 ban.\85\
---------------------------------------------------------------------------
    \82\ Haw. Const. Art. XV, sec 4 (1978). See also Haw. Const. Art. 
X, sec. 4 (1978) (requiring the State to ``promote the study of 
Hawaiian culture, history and language [through] a Hawaiian education 
program * * * in the public schools.'') Restrictions on the use of 
Hawaiian language in public schools were not actually lifted until 
1986. See Haw. Rev. Stat. Sec. 298-2(b) (1993).
    \83\ Native Hawaiian Education Act, Pub. L. No. 103-382, Sec. 101, 
108 Stat. 3518 (Oct. 20, 1994).
    \84\ Office of Hawaiian Affairs, Native Hawaiian Data Book 244-45 
(1998) (Table/Figure 4.22). Projected enrollment for the 2005-2006 
school year is 3,397. Id. Dramatic increases in the enrollment of 
Hawaiians at the University of Hawai'i took place shortly after 
adoption of the 1978 Constitutional Amendments and again after 
statutory restrictions were lifted in 1986 on use of the Hawaiian 
language in schools. Id. at 216-17 (Table/Figure 4.7). According to the 
1990 Census, Hawaiian is spoken in 8,872 households. Id. at 240-41 
(Table/Figure 4.20).
    \85\ Karen Silva, Hawaiian Chant: Dynamic Cultural Link or 
Atrophied Relic?, 98 Journal of the Polynesian Society 85, 86-87 
(1989), cited in Schutz, supra note 27, at 357.
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    Ho'oponopono (Conflict Resolution) \86\--This ancient 
Hawaiian tradition of conflict resolution resembles the western 
practice of mediation, but with the addition of a deeply 
spiritual component. It was and is traditionally practiced 
within families, and used to resolve disputes, cure illnesses, 
and reestablish connections between family members and their 
akua (gods). Today, trained practitioners are formally teaching 
the ho'oponopono methods, and there has been a resurgence of 
its use. The State courts have implemented a formal 
ho'oponopono program that is designed to help families to 
resolve their problems outside the courtroom.
---------------------------------------------------------------------------
    \86\ See generally Victoria Shook, Ho'oponopono, Contemporary Uses 
of a Hawaiian Problem-Solving Process (1985).
---------------------------------------------------------------------------
    Civic Associations--Prior to Annexation, Native Hawaiians 
were active participants in the political life of the Islands. 
Political associations were organized to protest against the 
Bayonet Constitution of 1887 and subsequent annexation 
efforts.\87\ Hawaiian Civic Clubs were established at the turn 
of the century to campaign against the destitute and unsanitary 
living conditions of Hawaiians in the city of Honolulu and its 
outskirts.\88\ These associations still exist, and count among 
their membership many of Hawai'i's most distinguished native 
leaders. In addition, Hawaiians living on Hawaiian Home Lands 
have, from the program's beginning in 1921, established 
homestead associations that are increasingly assuming 
responsibilities for the provision of governmental services to 
homestead areas.
---------------------------------------------------------------------------
    \87\ Hui Kalai'aina, a Hawaiian political organization, lobbied for 
the replacement of the 1887 Bayonet Constitution, and led mass, 
peaceful protests that stalled negotiations for a new Treaty of 
Reciprocity. 3 Kuykendall, supra, at 448; Noenoe Silva, Kanaka Maoli 
Resistance to Annexation, 1 O'iwi: A Native Hawaiian Journal 45 (1998); 
see also Silva, Kanaka Maoli Resistance, supra at 158-63 (activities of 
Hui Kalai'aina), and at 184-206 (opposition to annexation).
    \88\ Davianna Pomaika'i McGregor, 'Aina Ho'opulapula: Hawaiian 
Homesteading, 24 The Hawaiian Journal of History 1, 4-5 (1990).
---------------------------------------------------------------------------
    La'au Lapa'au (Hawaiian Healing)--Quietly practiced over 
the past two centuries following European contact, Native 
Hawaiian medicine has always been an important alternative to 
western medical care. Today it is a credible form of treatment 
for many.\89\ Practitioners use Hawaiian medicinal plants 
(la'au), massage (lomilomi), and spiritual counseling to heal. 
Hawaiian health centers established with Federal financial 
support \90\ now incorporate traditional Hawaiian healing 
methods into their regimen of care. These traditional methods 
of healing are recognized and financed through appropriations 
under the Native Hawaiian Health Care Improvement Act of 
1988.\91\
---------------------------------------------------------------------------
    \89\ Isabella Aiona Abbott, La'au Hawai'i: Traditional Uses of 
Hawaiian Plants 135 (1992); Nanette L. Kapulani Mossman Judd, La'au 
Lapa'au: Herbal Healing Among Contemporary Hawaiian Healers, 5 Pacific 
Health Dialog Journal of Community Mental Health and Clinical Medicine 
for the Pacific: The Health of Native Hawaiians 239-45 (1998).
    \90\ These traditional methods of healing are recognized and 
financed through appropriations under the Native Hawaiian Health Care 
Improvement Act of 1988, Pub. L. No. 100-579, 102 Stat. 2916 (now 
codified at 42 U.S.C. Sec. Sec. 11701e et seq.).
    \91\ Pub. L. No. 100-579, 102 Stat. 2916 (now codified at 42 U.S.C. 
Sec. 11701e, et seq.).
---------------------------------------------------------------------------
    Halau Hula (Hula Academies)--Once banned by missionaries as 
sacrilege, theancient art of hula \92\ accompanied by chanting 
in the native tongue, flourishes today. Halau exist throughout the 
islands, and hula and chants are now regularly incorporated into public 
ceremonies.
---------------------------------------------------------------------------
    \92\ ``[A] few chanters, dancers, and teachers among the po'e hula 
[hula people] kept alive the more traditional forms, and with the 
flowering of the `Hawaiian Renaissance' in the 1970's their knowledge 
and dedication became a foundation for revitalizing older forms.'' 
Dorothy B. Barrere, Mary Kawena Pukui & Marion Kelly, Hula Historical 
Perspectives 1-2 (1980). Hula was recently designated the state dance. 
Act 83, Relating To Hula (June 22, 1999) (codified at Haw. Rev. Stat. 
5-21).
---------------------------------------------------------------------------
    Voyaging/Celestial Navigation--Ancient Hawaiians were 
skilled navigators, finding their way thousands of miles across 
the open Pacific using only the stars and the currents as 
guides. In the 1970's, a group of Native Hawaiians formed the 
Polynesian Voyaging Society. The Society researched Polynesian 
canoe-making and navigating traditions, and commissioned the 
construction of an historically authentic double-hulled 
voyaging canoe, the Hokule'a (Star of Gladness). A Native 
Hawaiian crew was trained to sail the canoe, and a Native 
Hawaiian navigator was chosen to learn the art of celestial 
navigation from one of its few remaining Polynesian 
practitioners. The canoe's first voyage to Tahiti in 1976 
confirmed the sophisticated navigational skills of ancient 
Polynesians and also instilled a sense of pride in Hawaiian 
culture.\93\ Other canoes have been built, and more voyages 
made since.\94\ The art of voyaging is alive and well in modern 
Hawai'i, a testament to the skill and courage of the ancient 
navigators who first settled the Hawaiian islands.
---------------------------------------------------------------------------
    \93\ Ben Finney, Voyage of Rediscovery: A Cultural Odyssey through 
Polynesia (1995). In 1995, the Hokule'a and Hawai'iloa sailed to the 
Marquesas Islands. PBS recently broadcast an hour-long documentary of 
this voyage entitled Wayfinders--A Pacific Odyssey. See http://pbs.org/
wayfinders.
    \94\ Hokule'a left Hawai'i on June 15, 1999 for Rapa Nui (Easter 
Island).
---------------------------------------------------------------------------
    Native Hawaiians today live in a markedly different world 
from the one that shaped their ancient practices. Yet they 
struggle to perpetuate a culture passed down to them through 
two millennia.

      FEDERAL ACTIONS WITHIN THE CONTEXT OF FEDERAL INDIAN POLICY

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

            CONSTITUTIONAL SOURCE OF CONGRESSIONAL AUTHORITY

    The United States Supreme Court has so often addressed the 
scope of Congress' constitutional authority to address the 
conditions of the native people that it is now well-
established.\95\ Although the authority has been characterized 
as ``plenary,'' \96\ the Supreme Court has addressed the broad 
scope of the Congress' authority.\97\ 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.\98\
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    \95\ ``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).
    \96\ Morton v. Mancari, 427 U.S. 535 (1974).
    \97\ 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).
    \98\ United States v. Sandoval, 231 U.S. 28 (1913).
---------------------------------------------------------------------------
    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.
    It is likely 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.'' \99\ A further refinement suggested that the language 
read ``and with Indians, within the Limits of any State, not 
`subject to the laws thereof[.]'' \100\
---------------------------------------------------------------------------
    \99\ The Records of the Federal Convention of 1787, Volume II, 
Journal Entry of August 18, 1787, p. 321.
    \100\ The Records of the Federal Convention of 1787, Volume II, 
Journal Entry of August 22, 1787, p. 367.
---------------------------------------------------------------------------
    The exchanges of correspondence between James Monroe and 
James Madison concerning the construction of what was to become 
Article I, Section 8, Clause 3 of the Constitution make no 
reference to Indian tribes, but they do discuss Indians.\101\ 
Nor is the term ``Indian tribe'' found in any dictionaries of 
the late eighteenth century, although the terms ``aborigines'' 
and ``tribe'' are defined.\102\
---------------------------------------------------------------------------
    \101\ 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.
    \102\ 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's special power over these aboriginal 
peoples is beyond serious challenge.
    During the Founding Era, and during the Constitutional 
Convention, the terms ``Indian'' and ``tribe'' were used to 
encompass the tremendous diversity of aboriginal peoples of the 
New World and the wide range of their social and political 
organizations. The Founding generation knew and dealt with 
Indian tribes living in small, familial clans and in large, 
confederated empires. Native Alaska villages and Native 
Hawaiians residing in their aboriginal lands (i.e., the small 
islands that comprise the State of Hawai'i) are ``Indian 
Tribes'' as that phrase was used by the Founders. The Framers 
drafted the Constitution not to limit Congress' power over 
Indians, but to make clear the supremacy of Congress' power 
over Indian affairs. The Congress has exercised the power to 
promote the welfare of all Native American peoples, and to 
foster the ever-evolving means and methods of 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-govemance, 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.'' \103\
---------------------------------------------------------------------------
    \103\ Gonzalo Fernandez de Oviego y Valdez, De la natural hystoria 
de las Indas (1526), trans. by R. Eden (1955), in E. Arber, ed., The 
First Three English Books on America (Birmingham, Eng., 1885) (emphasis 
added).
---------------------------------------------------------------------------
    The earliest explorers of the New World encountered an 
extraordinary diversity of aboriginal peoples--from the 
elaborate Aztec and Inca civilizations of the South to the 
nomadic ``Esquimaux'' of the North. These early experiences and 
the contemporary fascination with these diverse cultures 
informed the concept of ``Indians'' in the colonial era.
    There was no understanding in the founding generation that 
Indians constituted a distinct or separate race. Indians were 
often assumed by the European settlers to be peoples like 
themselves. Before the development of modern dating methods 
that established beyond doubt the great antiquity of early man 
in America, it was believed that the Indians were offshoots of 
known civilizations of the Old World. Some scholars argued that 
they came from Egypt, others that they had broken away from the 
Chinese, and still others that they were descendants of 
Phoenician or Greek seamen. Another belief, more legend than 
theory, held that various light-skinned tribes possessed the 
blood of Welshmen who had come to America in the remote 
past.\104\ Others theorized the Indians were the ``lost 
tribes'' of Israel.\105\
---------------------------------------------------------------------------
    \104\ A.M. Joseph, Jr., The Indian Heritage of America 40 (rev. 
ed.1991).
    \105\ Id.; Letter, Jefferson to Adams, June 11, 1812 (discussing a 
popular book arguing ``all the Indians of America to be descended from 
the Jews * * * and that they all spoke Hebrew''), in Jefferson, 
Writings (Library of America, 1984), 1261; Bernal Diaz, The Conquest of 
New Spain 26 (1568) (J.M. Cohen, tr., 1963) (Objects at Indian site 
attributed ``to the Jews who were exiled by Titus and Vespasian and 
sent overseas'').
---------------------------------------------------------------------------
    In his popular, ``Notes on the State of Virginia'', Thomas 
Jefferson accepted the plausibility of the popular notion that 
the Indians had migrated to America from Europevia ``the 
imperfect navigation of ancient times.'' \106\ Jefferson noted, 
however, that Cook's voyage through the Bering Strait suggested that 
all the ``Indians of America'' except the ``Eskimaux'' migrated from 
Asia. Jefferson theorized that the Eskimos had come to America via 
Greenland from ``the northern parts of the old continent,'' i.e., 
Northern Europe.\107\
---------------------------------------------------------------------------
    \106\ Jefferson, Notes on the State of Virginia (1787), in 
Jefferson, Writings, at 226. Jefferson's Notes--which had circulated 
among several of the Founders for years before the Constitutional 
Convention--were written in 1781, published in February 1787 and 
appeared in newspapers during the Convention. Barlow to Jefferson, June 
15, 1787, in Papers of Thomas Jefferson (Boyd, ed.), 11:473 (``Your 
Notes on Virginia are getting into the Gazetts in different States''); 
see also, e.g., id. at 8:147, 9:38, 517, 12:136 (Madison's copy); id. 
at 10:464, 15:11 (Rutledge's comments on); id. at 8:160, 164 (Adams 
comments on); id. at 8:147, 229, 245 (Monroe's copy); id. at 21:392-93 
(citations re circulation of Notes).
    \107\ Jefferson, Notes, at 226.
---------------------------------------------------------------------------
    Modern scholars might be ``puzzled whether they [Eskimos] 
were Indians, or a separate and somewhat mysteriously distinct 
people on earth.'' \108\ Others might question whether the 
native people of Hawai'i are ``Indians.'' Efforts to draw such 
distinctions would themselves have puzzled the Founding 
generation. The ``Indians'' were many peoples, with distinct 
languages, cultures and socio-political organizations. They had 
diverse origins: perhaps Asia, perhaps Europe, perhaps the 
lands of the Bible. But from wherever they came, and whatever 
their distinct cultures and governments, they were all 
``Indians,'' for they were aboriginal inhabitants of the New 
World. The Founding generation had no difficulty thinking of 
Eskimos as ``Indians.'' They would have had no more difficulty 
treating as ``Indians'' native peoples whose origins lay a 
thousand years ago in the South Pacific. Indeed, as one 
historian reports, Captain James Cook, the English 
``discoverer'' of the Hawaiian islands and a contemporary of 
the Founders, referred to the inhabitants of the Hawaiian 
Islands as ``Indians.'' \109\ As far as the Founders knew, all 
the ``aboriginal inhabitants'' of the New World came from the 
South Pacific via the ``imperfect navigation of ancient 
times.''
---------------------------------------------------------------------------
    \108\ Joseph, supra, at 57; see also Oxford English Dictionary (1st 
ed.) (``OED''), ``Indian'' (``The Eskimos * * * are usually excluded 
from the term * * *'').
    \109\ Gavan Daws, Shoal of Time, A History of the Hawaiian Islands 
2, 19, 23, 52 (1968) (Cook ``spent several years among the savages of 
the Pacific, `Indians,' as he and everyone else called them.''). 
Multiple references in logs and diaries of Captain Cook and his 
officers refer to the indigenous people they found in the Hawaiian 
Islands as ``Indians.'' For example, Cook wrote that his first mate 
``attempted to land but was prevented by the Indians coming down to the 
boat in great numbers.'' J.C. Beaglehole, The Journal of Captain James 
Cook on His Voyages of Discovery 111267 (1967). David Samwell, the 
surgeon on Cook's flagship Discovery, wrote, ``The Indians opened and 
made a lane for the Marines to pass.'' Id. at 1161.
---------------------------------------------------------------------------
    The Founding generation used ``tribes'' to denote peoples 
of like kind or kin. As used in the Constitution, the word 
``tribe'' does not refer to some specific type of government or 
social organization. All Native American peoples were 
``tribes,'' whether they lived in villages or spread out in 
vast federations or empires. ``Tribe'' and ``nation'' were used 
to refer not to governments, but to groups of people 
recognizing a common membership or identity as such. 
Application of the biblical concept of ``tribes'' to the 
``Indians'' reflected the understanding that the natives of the 
New World were not one people, but many ``peoples,'' 
``nations,'' or ``tribes''--terms used interchangeably well 
into the Nineteenth Century.\110\
---------------------------------------------------------------------------
    \110\ 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.\111\ 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.\112\ 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.
---------------------------------------------------------------------------
    \111\ Jefferson, Notes, at 221.
    \112\ 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 
theConstitution, 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.'' \113\ 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.'' \114\ 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.
---------------------------------------------------------------------------
    \113\ Articles of Confederation, Art. X, March 1, 1778.
    \114\ 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.'' \115\ 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.'' \116\ 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.\117\ On August 31 st, the Convention 
referred various ``parts of the Constitution'' (including the 
Commerce Clause) to a ``Committee of eleven,'' including 
Madison.\118\ Without recorded discussion, the Committee 
recommended that the language be simplified to commerce ``with 
the Indian tribes.'' \119\ The Convention accepted the 
recommendation without debate or dissent.\120\
---------------------------------------------------------------------------
    \115\ ``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.
    \116\ 2 Federal Convention, at 321, 324; see also id. at 143 
(Rutledge noted that ``Indian affairs'' should be added to Congress' 
powers).
    \117\ 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.
    \118\ Id. at 481.
    \119\ Id. at 493, 496-97, 503 (emphasis added).
    \120\ 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.'' \121\ In the only extended 
discussion of the issue during ratification, Madison used the 
phrases ``commerce with the Indian tribes'' and ``trade with 
Indians'' interchangeably, explaining that the purpose of the 
new provision was to eliminate the limitation on Congress' 
power over trade with the Indians living within the 
States.\122\ 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.
---------------------------------------------------------------------------
    \121\ 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.
    \122\ 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.'' \123\ Congress understood its power to 
``operate immediately on the persons and interests of 
individual citizens.'' \124\ 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.'' 
\125\ 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.
---------------------------------------------------------------------------
    \123\ ``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.
    \124\ Madison, Federalist 40, in Documentary History, XV: 406.
    \125\ 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.'' \126\ 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.
---------------------------------------------------------------------------
    \126\ 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 Lewisand 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,\127\ and Indian nations were treated like alien peoples 
not fully within the jurisdiction of the government:
---------------------------------------------------------------------------
    \127\ 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.\128\
---------------------------------------------------------------------------
    \128\ Cong. Globe, 39th Congress, Ist Sess. 2895.

    Congress debated what language to adopt in order to make 
certain that the special status of the Indian tribes was 
preserved.\129\ 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.\130\
---------------------------------------------------------------------------
    \129\ 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'').
    \130\ 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.'' \131\ With 
deliberate irony, he called the Indian tribes ``domestic 
dependent nations.'' \132\ The Indian peoples had surrendered 
``their rights to complete sovereignty,'' \133\ and yet they 
continued to be ``nations'' that governed themselves.\134\
---------------------------------------------------------------------------
    \131\ Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16 (1831).
    \132\ Id at 17.
    \133\ Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 572-74 (1823).
    \134\ 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., 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.'' \135\ As ``guardian,'' 
Congress had both the obligation and the power to enact 
legislation protecting the Indian nations.\136\
---------------------------------------------------------------------------
    \135\ Cherokee Nation, 30 U.S. (5 Pet.) at 17-18; Worcester, 31 
U.S. (6 Pet.) at 558-59.
    \136\ 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.'' 
\137\ 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'' \138\ 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.
---------------------------------------------------------------------------
    \137\ 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.
    \138\ 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.'' \139\ The ``race'' of 
Indian peoples was constitutionally irrelevant. Native peoples 
were ``nations,'' \140\ and the relationship between the United 
States and the natives reflected a political settlement between 
conquered and conquering nations.
---------------------------------------------------------------------------
    \139\ Id., at 559.
    \140\ 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 (i) the descendants of 
aboriginal peoples who (ii) belong to some Native American 
``people,'' ``nation,'' ``tribe,'' or ``community,'' as the 
founding generation understood those terms.\141\
---------------------------------------------------------------------------
    \141\ 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'' 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.\142\ 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.\143\
---------------------------------------------------------------------------
    \142\ United States v. Antelope, 430 U.S. 641, 646-47 (1977).
    \143\ 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.'' \144\ 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.'' \145\ 
From time immemorial, Native American communities have defined 
themselves at least in part by family and ancestry.\146\ 
Kinship and ancestry is part of what it means to be an 
``Indian.'' To the Framers, the essence of ``Indianness'' was 
determined by ancestry or blood. 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.
---------------------------------------------------------------------------
    \144\ 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).
    \145\ 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).
    \146\ See Indian Policy Report at 108-09 (``the tribe, as a 
political institution, has primary responsibility to determine tribal 
membership for purposes of voting in tribal elections * * * and other 
rights arising from tribal membership. Many tribal provisions call for 
one-fourth degree of blood of the particular tribe but tribal 
provisions vary widely. A few tribes require as much as one-half degree 
of tribal blood * * *''); accord Felix S. Cohen, Handbook of Federal 
Indian Law 22-23 & n.27 (1982 ed.).
---------------------------------------------------------------------------
    Congressional authority to use such traditional 
requirements for tribal membership or benefits has never been 
doubted. In 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.'' \147\ 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.'' 
\148\ 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.'' \149\ 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.
---------------------------------------------------------------------------
    \147\ Id., 437 U.S. at 646.
    \148\ Id. at 650 (quoting 25 U.S.C. Sec. 479).
    \149\ 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).
---------------------------------------------------------------------------
    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. * * * '' \150\ Recently, the Supreme Court 
acknowledged the continued significance of this historic trust 
relationship.\151\
---------------------------------------------------------------------------
    \150\ United States v. Kagama, 118 U.S. 375, 384-85 (1886) 
(emphasis added); See Seminole Nation v. United States, 316 U.S. 286, 
296 (1942) (the government owes a ``distinctive obligation of trust'' 
to Indians).
    \151\ 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'').
---------------------------------------------------------------------------
    Like the 556 Indian tribes currently recognized by the 
United States, Native Hawaiians are a group of people defined 
by their common descent from anancestral 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,\152\ 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.'' \153\
---------------------------------------------------------------------------
    \152\ 72 U.S. 737 (1866).
    \153\ Id., 72 U.S. at 755-57.
---------------------------------------------------------------------------
    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.\154\ 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.'' \155\ 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 * * * ''.\156\
---------------------------------------------------------------------------
    \154\ See United States v. Joseph, 94 U.S. (4 Otto.) 614, 616 
(1877).
    \155\ United States v. Sandoval, 231 U.S. 28, 46-47 (1913); 
Candelaria, 271 U.S. at 439-40, 442-43.
    \156\ Sandoval, 231 U.S. at 46; accord Tiger v. Western Inv. Co., 
221 U.S. 286, 315 (1911).
---------------------------------------------------------------------------
    As indicated above, sixty years later, in United States v. 
John,\157\ 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.\158\ 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.'' \159\
---------------------------------------------------------------------------
    \157\ 437 U.S. 634 (1978).
    \158\ Id., 437 U.S. at 652-53.
    \159\ Id., at 650 n.20, 652-53.
---------------------------------------------------------------------------
    Similarly, the Supreme Court has recognized Congress' broad 
authority to deal with individual ``Indians'' \160\ or large 
organizations comprised of numerous ``tribes.'' \161\ 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.\162\ 
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.\163\
---------------------------------------------------------------------------
    \160\ 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.
    \161\ 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).
    \162\ See John, 437 U.S. at 652-53; Moe v. Confederated Salish & 
Kootenai Tribes, 425 U.S. 463, 480 (1976).
    \163\ 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'').
---------------------------------------------------------------------------

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,\164\ 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.\165\ 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,\166\ 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.
---------------------------------------------------------------------------
    \164\ Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978).
    \165\ 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. 
* * *''.
    \166\ See, e.g., United States v. Rogers, 45 U.S. (4 How.) 567 
(1846); Westmoreland v. United States, 155 U.S. 545 (1895); Alberty v. 
United States, 162 U.S. 499 (1896); Lucas v. United States, 163 U.S. 
612 (1896); Nofire v. United States, 164 U.S. 657 (1897). The question 
of whether such non-Indian tribal citizens should be treated as 
``Indians'' for purposes of particular Federal jurisdictional statutes 
is a separate issue that has no bearing on the eligibility of the tribe 
itself for recognition.
---------------------------------------------------------------------------
    Many contemporary tribes define their citizenship or 
membership based upon lineal descendancy from a tribal roll, 
and the Congress has from time to timeestablished criteria for 
membership in certain tribes.\167\ 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.
---------------------------------------------------------------------------
    \167\ See, e.g., 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).
---------------------------------------------------------------------------

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 \168\ 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,'' 
\169\ 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.\170\
---------------------------------------------------------------------------
    \168\ See 25 C.F.R. Part 83.
    \169\ 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 C.F.R. 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).
    \170\ 25 C.F.R., Part 83. Quinn 1992, at 40-41.
---------------------------------------------------------------------------
    An administrative process for the acknowledgment of Native 
groups by the United States that was established almost twenty 
years after Hawai'i's 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.\171\ The present legislation thus 
establishes no precedent applicable to groups eligible to apply 
for recognition under the existing administrative framework.
---------------------------------------------------------------------------
    \171\ 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 Hawai'i, 764 F.2d 623 (9th Cir. 1985); 
Kahawaiolaa v. Norton, 222 F. Supp. 2d 1213 (D. Haw. 2002).
---------------------------------------------------------------------------
    The primary injury that S. 344 is intended to address is 
the loss of a sovereign governing entity resulting from the 
1893 overthrow of the government of the Kingdom of Hawai'i, an 
event made possible by the actions of officials and citizens of 
the United States. Although Congress has consistently 
recognized Native Hawaiians as among the Native people of the 
United States on whose behalf it may exercise its powers under 
the Indian Commerce Clause, it has not as yet acted to provide 
a process for the reorganization of a Native Hawaiian sovereign 
governing entity. S. 344 provides authority for that process.

Summary of Provisions of S. 344

    The findings of S. 344 focus on the history of Native 
Hawaiians and the United States policy as it relates to Native 
Hawaiians, including the enactment of over 160 public laws to 
address the conditions of Native Hawaiians.
    S. 344 also provides a process for the recognition of a 
Native Hawaiian government by the United States for purposes of 
carrying on a government-to-government relationship.
    S. 344 provides for the development of a roll of the adult 
members of the Native Hawaiian community who meet the 
definition of ``Native Hawaiian'' in section 3(7) of S. 344 and 
who wish to participate in the reorganization of the Native 
Hawaiian governing entity. This roll is to be submitted to the 
Secretary of Interior by the adult members of the Native 
Hawaiian community and the names on the roll are to be 
certified as meeting the definition of ``Native Hawaiian'' in 
section 3(7) of S. 344. The Secretary then publishes the roll 
and thereafter, the adult members of the Native Hawaiian 
community elect an Interim Governing Council that is authorized 
to conduct referenda on the proposed elements of the organic 
governing documents of the Native Hawaiian governing entity, 
the proposed criteria for citizenship of the Native Hawaiian 
governing entity, the proposed powers and authorities to be 
exercised by the Native Hawaiian governing entity, as well as 
the proposed privileges and immunities of the Native Hawaiian 
governing entity, the proposed civil rights and protection of 
civil rights of the citizens of the Native Hawaiian governing 
entity and all persons subject to the authority of the Native 
Hawaiian governing entity, and other issues determined 
appropriate by the Council.
    Based on the referendum, the Council is authorized to 
develop proposed organic governing documents for the Native 
Hawaiian governing entity, to distribute them to all adult 
members of the Native Hawaiian community listed on the roll, 
and conduct an election for the purpose or ratifying the 
proposed organic governing documents. Upon the ratification of 
the organic governing documents, the governing documents are to 
be submitted to the Secretary of the Interior for certification 
that they are consistent with Federal law and the special 
relationship between the United States and native people. The 
Secretary is also authorized to certify that the governing 
documents provide for the protection of the civil rights of the 
citizens of the Native Hawaiian government and any others who 
would come within the jurisdiction of the government. Once the 
Secretary has made these certifications, and the officers of 
the Native Hawaiian governing entity are elected, the bill 
provides authority for the United States' recognition of the 
Native Hawaiian government. Upon recognition, the definition of 
``Native Hawaiian'' for purposes of S. 344, would be as 
provided for in the organic governing documents of the Native 
Hawaiian government.
    S. 344 also provides authority for the establishment of a 
United States Office of Native Hawaiian Relations within the 
Office of the Secretary of the U.S. Department of the Interior. 
The Office is to be the principal entity through which the 
United States will carry on relations with the Native Hawaiian 
people until a Native Hawaiian government is formed. The Office 
would also serve as the primary agent of ongoing efforts to 
effect the reconciliation that is authorized in the Apology 
Resolution. The Office would also serve as lead agency for the 
work of a Native Hawaiian Interagency Task Force that is 
authorized to be established in S. 344.

Indian and Native Hawaiian Program Funding

    As referenced above, since 1910, the Congress has enacted 
over 160 statutes designed to address the conditions of Native 
Hawaiians. Appropriations for Native Hawaiian programs have 
always been separately secured and have had no impact on 
program funding for American Indians or Alaska Natives, based 
in part on thefact that generally, Native Hawaiian programs do 
not come within the jurisdiction of the appropriations subcommittees 
that provide funding for American Indian and Alaska Native programs. 
Consistent with this practice, S. 344 provides authority for a separate 
and distinct appropriation that does not impact in any way on existing 
authorizations for American Indian and Alaska Native programs.
    It is also important to note that Federal programs 
addressing health care, education, housing, job training, 
Native graves protection, arts and culture, and language 
preservation for Native Hawaiians are already in place. 
Accordingly, new impacts on the Federal budget that might 
otherwise be anticipated with the Federal recognition of a 
native government will not be forthcoming as a result of the 
recognition of a Native Hawaiian government. S. 344 does 
authorize appropriations for the establishment of the U.S. 
Office of Native Hawaiian Relations within the Department of 
the Interior, but the costs associated with these activities 
are not expected to be significant.

Gaming

    Some have questioned whether the reorganization of a Native 
Hawaiian government might have implications for gaming that is 
conducted under the authority of the Indian Gaming Regulatory 
Act (IGRA). The Act authorizes Indian tribal governments to 
conduct gaming on Indian reservations and lands held in trust 
by the United States for Indian tribes and over which a tribal 
government exercises jurisdiction. The scope of gaming that can 
be conducted under the Indian Gaming Regulatory Act is 
determined by the law of the state in which the Indian lands 
are located. There are no Indian reservations or Indian lands 
in the State of Hawai'i, nor are there any Indian reservations 
or Indian lands over which a tribal government exercises 
jurisdiction in the State of Hawai'i.
    The U.S. Supreme Court has held that in Public Law 83-280 
states, state laws that criminally prohibit certain forms of 
gaming apply on Indian lands. Hawai'i is one of only two states 
in the Union (the other is Utah) that criminally prohibit all 
forms of gaming. Accordingly, a reorganized Native Hawaiian 
government could not conduct any form of gaming in the State of 
Hawai'i under the authority of the Indian Gaming Regulatory 
Act. In an effort to address concerns about the application of 
the IGRA, S. 344 provides that nothing in S. 344 is to be 
construed as an authorization for the Native Hawaiian governing 
entity to conduct gaming activities under the authority of the 
Indian Gaming Regulatory Act.

                       EXPLANATION OF AMENDMENTS

    The amendment in the nature of a substitute to S. 344 as 
approved by the Committee includes the following substantive 
changes:
           Addition of a section setting forth the 
        short title of the Act;
           Inclusion of a finding addressing actions 
        undertaken by the legislature of the State of Hawai'i 
        and the Governor of Hawai'i expressing support for the 
        recognition of a Native Hawaiian governing entity by 
        the United States;
           Addition of provisions addressing a process 
        for the reorganization of the Native Hawaiian governing 
        entity;
           Addition of a section providing a waiver of 
        certain provisions that would otherwise bar Native 
        Hawaiians from employment in the United States Office 
        for Native Hawaiian Relations.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    This section states that this Act may be cited as the 
``Native Hawaiian Recognition Act of 2003''.

Section 2. Findings

    This section sets forth the Congress' findings. Findings 
(1) through (4) address Congress' recognition of Native 
Hawaiians as native people of the United States and the State 
of Hawai'i. Findings (5) through (7) reflect Congress' 
determination of the need to address conditions of Native 
Hawaiians through the Hawaiian Homes Commission Act of 1920. 
Findings (8) and (9) document Congress' establishment of the 
ceded lands trust as a condition of statehood for the State of 
Hawai'i. Findings (9) through (11) reflect the importance of 
the Hawaiian Home Lands and Ceded Lands to Native Hawaiians as 
a foundation for the Native Hawaiian community for the survival 
and economic self-sufficiency of the Native Hawaiian people. 
Findings (12) through (14) address the effect of the Apology 
Resolution. Findings (15) through (19) address the status of 
the Native Hawaiian community as a ``distinct native 
community.'' Finding (20) reflects the legal position of the 
United States before the U.S. Supreme Court in the case of Rice 
v. Cayetano. Findings (21) and (22) reaffirm the special 
political and legal relationship between the Native Hawaiian 
people and the United States. Finding (23) documents that the 
Governor and Legislature of the State of Hawai'i have expressed 
their strong support for the recognition of the Native Hawaiian 
governing entity.

Section 3. Definitions

    This section sets forth definitions of terms used in the 
bill. Defined terms are Aboriginal, Indigenous, Native People; 
Adult Members; Apology Resolution; Council; Interagency 
Coordinating Group; Native Hawaiian; Native Hawaiian Governing 
Entity; Office; and Secretary.
    With regard to the definition of the term ``Native 
Hawaiian,'' it is the intent of the Committee that the 
definition shall be applicable for the purpose of establishing 
the roll authorized under section 7(b)(1) and until such time 
as the Native Hawaiian governing entity is recognized by the 
United States. Thereafter, however, the definition of this term 
for the purposes of citizenship in the Native Hawaiian 
governing entity shall be as set forth in the organic governing 
documents of the Native Hawaiian governing entity, and upon 
certification of those documents by the Secretary of the 
Interior, the definition of Native Hawaiian in the organic 
governing documents of the Native Hawaiian governing entity 
shall be the definition of Native Hawaiian for purposes of this 
Federal law.

Section 4. United States policy and purpose

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

Section 5. United States Office for Native Hawaiian Relations

    This provision provides authority for the establishment of 
the United States Office for Native Hawaiian Relations within 
the Office of the Secretary of the Department of the Interior. 
This Office is charged with: (1) effectuating and coordinating 
the special political and legal relationship between the Native 
Hawaiian people and the United States; (2) continuing the 
process of reconciliation with the Native Hawaiian people, and 
upon recognition of the Native Hawaiian governing entity by the 
United States, continuing the process of reconciliation with 
the Native Hawaiian governing entity; (3) fully integrating the 
principle and practice of meaningful, regular, and appropriate 
consultation withthe Native Hawaiian people and the Native 
Hawaiian governing entity prior to taking any actions that may have the 
potential to significantly affect Native Hawaiian resources, rights, or 
lands; (4) consulting with the Native Hawaiian Interagency Coordinating 
Group, other Federal agencies, and with relevant agencies of the State 
of Hawai'i on policies, practices, and proposed actions affecting 
Native Hawaiian resources, rights, or lands; and (5) preparing and 
submitting to the Senate Committee on Indian Affairs, Senate Committee 
on Energy and Natural Resources, and House Resources Committee an 
annual report detailing the activities of the Interagency Coordinating 
Group that are undertaken with respect to the continuing process of 
reconciliation and to effect meaningful consultation with the Native 
Hawaiian governing entity, and providing recommendations for any 
necessary changes to existing Federal statutes or regulations 
promulgated under the authority of Federal law.
    It is the intent of the Committee that the United States 
Office for Native Hawaiian Relations serve as a liaison between 
the Native Hawaiian people and the United States for the 
purposes of continuing the reconciliation process and ensuring 
proper consultation with the Native Hawaiian people for any 
Federal policy impacting Native Hawaiians. The Committee does 
not intend that the United States Office for Native Hawaiian 
Relations will assume the responsibility or authority for any 
of the Federal programs established to address the conditions 
of Native Hawaiians. All Federal programs established and 
administered by Federal agencies will remain with those 
agencies.

Section 6. Native Hawaiian Interagency Coordinating Group

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

Section 7. Process for the recognition of the Native Hawaiian governing 
        entity

    Subsection (a) sets forth the recognition by the United 
States that the Native Hawaiian people have the right to 
organize for their common welfare and to adopt appropriate 
organic governing documents.
    Subsection (b) addresses a process for the reorganization 
of the Native Hawaiian government.
    Subsection (b)(1) provides that the United States Office 
for Native Hawaiian Relations (Office), in consultation with 
those adult members of the Native Hawaiian community who elect 
to participate in the reorganization of the Native Hawaiian 
governing entity (participating adult members), shall prepare 
and maintain a roll containing the names of those adult members 
of the Native Hawaiian community who meet the definition of 
``Native Hawaiian'' as set forth in section 3(7) of S. 344. The 
Committee does not intend, nor does S. 344 provide authority 
for, the Office to conduct independent research into the 
genealogy of Native Hawaiians seeking to be listed on the roll 
beyond the documentation or other evidence submitted by those 
who wish to participate in the organization of the Native 
Hawaiian governing entity. The participating adult members, in 
consultation with the Office, shall certify to the Secretary 
that those individuals listed on the roll meet the definition 
of ``Native Hawaiian'' as set forth in section 3(7) of S. 344. 
Upon certification, the Secretary shall publish the roll, or if 
the Secretary fails to act within 90 days after the date that 
the roll is submitted to the Secretary, the Office shall 
publish the roll notwithstanding any order or directive issued 
by the Secretary or any other official of the Department of the 
Interior to the contrary. The Secretary may establish an appeal 
mechanism available to any Native Hawaiian excluded from the 
roll, provided however that the pendency of such appeals shall 
not delay the Secretary's publication of the roll. The 
Secretary shall update the roll and shall publish the final 
roll upon the final disposition of all appeals. The effect of 
the publication of the roll is to assure that the roll will 
serve as the basis for the eligibility of adult members of the 
Native Hawaiian community whose names are listed on the roll to 
participate in all referenda and elections associated with the 
reorganization of the Native Hawaiian governing entity.
    Subsection (b)(2) addresses the organization of the Native 
Hawaiian Interim Governing Council.
    Subsection (b)(2)(A) provides that the adult members of the 
Native Hawaiian community whose names are listed on the roll 
published by the Secretary (published roll) may develop 
eligibility criteria for election to serve on the Native 
Hawaiian Interim Governing Council (Council), may determine the 
structure of the Council, and may elect the members of the 
Council from those listed on the final roll.
    Subsection (b)(2)(B) provides that at the request of the 
adult members of the Native Hawaiian community listed on the 
published roll, the Office may assist individuals listed on the 
roll in holding an election by secret ballot, including, at the 
option of the Office, absentee and mail balloting, to elect the 
membership of the Council.
    Subsection (b)(2)(C) provides that the Council may 
represent individuals on the published roll in the 
implementation of the Act and shall have no powers other than 
powers conferred upon the Council under the authority of S. 
344. The subsection further provides that the Council may enter 
into a contract with, or obtain a grant from, any Federal or 
State agency for the purpose of carrying out its authorized 
activities. The Council may also conduct a referendum among the 
adult members of the Native Hawaiian community whose names are 
listed on the published roll for the purpose of determining the 
proposed elements of the organic governing documents of the 
Native Hawaiian governing entity, the proposed criteria for 
citizenship of the Native Hawaiian governing entity, the 
proposed powers, authorities, privileges, and immunities of the 
Native Hawaiian governing entity, the proposed civil rights and 
protection of the rights of the citizens of the Native Hawaiian 
governing entity and all persons subject to its authority, and 
other issues determined by the Council to be appropriate. Based 
on the referendum, the Council may develop proposed organic 
governing documents for the Native Hawaiian governing entity, 
may distribute to all adult members of the Native Hawaiian 
community listed on the published roll a copy of the proposed 
organic governing documents and a brief impartial description 
of their contents. The Council may also hold elections for the 
purpose of ratifying the proposed organic governing documents 
and, upon certification of those documents by the Secretary in 
accordance with section 7(b)(4), may hold elections of the 
officers of the Native Hawaiian governing entity. The Council 
may request the assistance of the Office in conducting the 
elections.
    Subsection (b)(2)(D) provides that the Council shall have 
no powers other than those set forth in S. 344, and those 
powers, and the existence of the Council itself, shall 
terminate when the duly elected officers of the Native Hawaiian 
governing entity take office.
    Subsection (b)(3) provides that following the organization 
of the Native Hawaiian governing entity and the adoption of 
organic governing documents, the Council shall submit the 
ratified organic governing documents to the Secretary.
    Subsection (b)(4)(A) provides that not later than 90 days 
after the date on which the Council submits the organic 
governing documents to the Secretary, the Secretary shall 
certify that the organic governing documents:
           Establish criteria for citizenship in the 
        Native Hawaiian governing entity;
           Were adopted by a majority vote of the adult 
        members of the Native Hawaiian community whose names 
        are listed on the roll published by the Secretary;
           Provide for the exercise of governmental 
        authorities by the Native Hawaiian governing entity;
           Provide authority for the Native Hawaiian 
        governing entity to negotiate with Federal, State, and 
        local governments, and other entities;
           Prevent the sale, disposition, lease, or 
        encumbrance of lands, interests in lands, or other 
        assets of the Native Hawaiian governing entity without 
        the consent of the Native Hawaiian governing entity;
           Provide for the protection of the civil 
        rights of the citizens of the Native Hawaiian governing 
        entity and all persons subject to the authority of the 
        Native Hawaiian governing entity, and ensure that the 
        Native Hawaiian governing entity exercises its 
        authority in a manner consistent with the requirements 
        of section 202 of the Act of April 11, 1968 (25 U.S.C. 
        1302); and
           Are consistent with applicable Federal law 
        and the special political and legal relationship 
        between the United States and the indigenous native 
        people of the United States. It is the Committee's 
        intent that for purposes of determining whether the 
        criteria for citizenship in the Native Hawaiian 
        governing entity are consistent with applicable Federal 
        law, the definition of ``Native Hawaiian'' contained in 
        S. 344 or any other Federal law shall not serve as a 
        constraint on the right of the Native Hawaiian 
        governing entity to determine its own citizenship or 
        membership.
    Subsection (b)(4)(B) provides that if the Secretary 
determines that any provision of the organic governing 
documents is not consistent with applicable Federal law, the 
Secretary shall resubmit the organic governing documents to the 
Council along with a justification for each of the Secretary's 
findings as to why the provisions are not consistent with such 
law. The Council is authorized to amend the organic governing 
documents in order to ensure their compliance with applicable 
Federal law and to resubmit the organic governing documents to 
the Secretary for certification. It is the Committee's intent 
that the resubmission to the Secretary of the organic governing 
documents does not foreclose the Native Hawaiian governing 
entity from seeking judicial review of the Secretary's 
rejection of the proposed organic governing documents.
    Subsection (b)(4)(C) provides that the certification of the 
organic government documents shall be deemed to have been made 
if the Secretary has not acted within 90 days of the date that 
the Council has submitted, or resubmitted, the organic 
governing documents of the Native Hawaiian governing entity to 
the Secretary.
    Subsection (b)(5) provides that on completion of the 
certifications made by the Secretary, the Council may hold 
elections of the officers of the Native Hawaiian governing 
entity.
    Subsection (b)(6) provides that upon election of the Native 
Hawaiian governing entity's officers and the certification of 
the organic governing documents of the Native Hawaiian 
governing entity, the United States shall extend Federal 
recognition to the Native Hawaiian governing entity as the 
representative governing body of the Native Hawaiian people.

Section 8. Reaffirmation of delegation of Federal authority; 
        negotiations

    Section 8(a) reaffirms the United States' delegation of 
authority to the State of Hawai'i in the Hawai'i Admission Act 
to address the conditions of the indigenous, native people of 
Hawai'i.
    Section 8(b) provides that upon Federal recognition of the 
Native Hawaiian governing entity, the United States and the 
State of Hawai'i are authorized to enter into negotiations with 
the Native Hawaiian governing entity that are designed to lead 
to an agreement addressing matters such as the transfer of 
lands, natural resources and other assets, and the exercise of 
governmental authorities over such lands, natural resources and 
other assets. It is the Committee's intent that the reference 
to ``lands, natural resources and other assets'' include, but 
not be limited to, lands set aside under the Hawaiian Homes 
Commission Act and lands ceded by the Republic of Hawai'i to 
the United States in 1898 and later ceded to the State pursuant 
to Sec. 5 of the Hawai'i Admission Act and Pub. L. 88-233, 77 
Stat. 472 (December 23, 1963). It is the Committee's view that 
if an inventory of the ceded lands is required to facilitate 
negotiations addressing ceded lands, then such an inventory 
should be conducted. The section also provides that nothing in 
S. 344 shall be construed as a settlement of any claim against 
the United States.

Section 9. Applicability of certain Federal laws

    This section provides that nothing in S. 344 is to be 
construed as an authorization for the Native Hawaiian governing 
entity to conduct gaming activities under the authority of the 
Indian Gaming Regulatory Act or as an authorization for 
eligibility to participate in any programs and services 
provided by the Bureau of Indian Affairs, for any persons who 
are not otherwise eligible for such programs and services.

Section 10. Ethics

    This section provides a limited waiver of the provisions of 
18 U.S.C. 208(a), prohibiting involvement by a Federal employee 
in matters in which an employee has a financial interest, to 
permit individuals who would otherwise be barred from such 
employment by reason of the status of the individual, a spouse, 
or minor child as a Native Hawaiian, to accept employment 
within the United States Office for Native Hawaiian Relations.

Section 11. Severability clause

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

Section 12. Authorization of appropriations

    This section authorizes the appropriation of such sums as 
are necessary to carry out the activities authorized by S. 344.

                          LEGISLATIVE HISTORY

    S. 344 was introduced on February 11, 2003, by Senator 
Akaka, for himself and Senator Inouye, and was referred to the 
Committee on Indian Affairs. Senator Reid of Nevada became a 
cosponsor on February 27, 2003, and Senator Stevens of Alaska 
became a cosponsor on March 17, 2003. A hearing on S. 344 was 
held before the Committee on Indian Affairs on February 25, 
2003. S. 344 was ordered favorably reported to the full Senate 
by the Committee on Indian Affairs on May 14, 2003.
    A House companion measure, H.R. 665, was introduced on 
February 11, 2003, by Representative Abercrombie, for himself 
and Representative Case, and was referred to the Committee on 
Resources.
    In the 107th Congress, S. 746, a bill similar in purpose to 
S. 344 was introduced on April 6, 2001, by Senator Akaka, for 
himself and Senator Inouye, and was referred to the Committee 
on Indian Affairs. On July 24, 2001, S. 746 was ordered 
favorably reported to the full Senate. The Committee report 
accompanying the bill was Senate Report 107-66.
    A House companion measure, H.R. 617, was introduced in the 
House of Representatives by Representative Neil Abercrombie, 
for himself and Representatives Patsy Mink, Eni Faleomavaega, 
James Hansen, Dale Kildee, Nick Rahall, and Don Young, and was 
referred to the Committee on Resources. H.R. 617 was ordered 
favorably reported to the full House of Representatives on May 
16, 2001. S. 746 and H.R. were not acted upon prior to the sine 
die adjournment of the 107th session of the Congress.
    In the 106th Congress, a bill similar in purpose to S. 344, 
S. 2899, was introduced by Senator Akaka, for himself and 
Senator Inouye, and was referred to the Committee on Indian 
Affairs. A House companion measure to S. 2899, H.R. 4904, was 
introduced in the House of Representatives in the 106th session 
of the Congress. Five days of hearings were held on S. 2899 and 
H.R. 4904 in joint hearings of the House Resources Committee 
and the Senate Indian Affairs Committee in Hawai'i from Monday, 
August 28, 2000 through Friday, September 1, 2000. An 
additional hearing on S. 2899 was held in Washington, D.C. on 
September 13, 2000. S. 2899 was ordered favorably reported to 
the full Senate by the Senate Committee on Indian Affairs on 
September 13, 2000. The Committee report accompanying the bill 
was Senate Report 106-424. H.R. 4904 was ordered favorably 
reported by the House Resources Committee and passed the House 
on September 26, 2000. H.R. 4904 failed to pass the Senate 
before the sine die adjournment of the 106th session of the 
Congress.

            COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

    The Committee on Indian Affairs, on May 14, 2003, in an 
open business meeting, considered an amendment in the nature of 
a substitute to S. 344, and ordered the substitute amendment to 
S. 344 favorably reported to the Senate.

                   COST AND BUDGETARY CONSIDERATIONS

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

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 30, 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. 344, the Native 
Hawaiian Recognition Act of 2003.
    If you wish further details on this estimate, we will lie 
pleased to provide them. The CBO staff contacts are Lanette J. 
Walker (for federal costs), and Marjorie Miller (for the impact 
on state, local, and tribal governments).
            Sincerely,
                                          Barry B. Anderson
                               (For Douglas Holtz-Eakin, Director).
    Enclosure.

S. 344--Native Hawaiian Recognition Act of 2003

    S. 344 would establish a process for a Native Hawaiian 
government to be constituted and recognized by the federal 
government. CBO estimates that implementing S. 344 would have 
no significant impact on the federal budget. The bill would not 
affect direct spending or revenues.
    S. 344 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments. 
Enacting this legislation could lead to the creation of a new 
government to represent native Hawaiians. The transfer of any 
lands or other assets to this new government, including lands 
now controlled by the state of Hawai'i, would be the subject of 
future negotiations. Similarly, federal payments to native 
Hawaiians following recognition of a Native Hawaiian government 
would depend on future legislation.
    The bill would establish the United States Office for 
Native Hawaiian Relations within the Department of the Interior 
(DOI) to coordinate services to native Hawaiians. In addition, 
S. 344 would establish the Native Hawaiian Interagency 
Coordinating Group to coordinate federal programs and policies 
that affect native Hawaiians. Based on information from DOI, 
CBO expects that the agency would require up to five additional 
employees to implement the bill. Therefore, CBO estimates that 
implementing S. 344 would cost less than $500,000 a year, 
subject to the availability of appropriated funds.
    The CBO staff contacts for this estimate are Lanette J. 
Walker (for federal costs), and Marjorie Miller (for the impact 
on state, local, and tribal governments). This estimate was 
approved by Peter H. Fontaine, Deputy Assistant Director for 
Budget Analysis.

                        EXECUTIVE COMMUNICATIONS

    The Committee has not received any communications from the 
Executive branch on S. 344.

                    REGULATORY AND PAPERWORK IMPACT

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate require each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 344 will 
have a minimal impact on regulatory or paperwork requirements.

                        CHANGES IN EXISTING LAW

    The provisions of S. 344 do not effect any change in 
existing law.
                           A P P E N D I X  A

                              ----------                              


             Demographics of the Native Hawaiian Population

Housing
    Within the last several years, three studies have 
documented the poor housing conditions that confront Native 
Hawaiians who either reside on the Hawaiian home lands or who 
are eligible to reside on the home lands.
    In 1992, the National Commission on American Indian, Alaska 
Native, and Native Hawaiian housing issued its final report to 
the Congress, ``Building the Future: A Blueprint for Change.'' 
The Commission's study compared housing data for Native 
Hawaiians with housing information for other citizens in the 
State of Hawai'i. The Commission found that Native Hawaiians, 
like American Indians and Alaska Natives, lacked access to 
conventional mortgage lending and home financing because of the 
trust status of the Hawaiian home lands, and that Native 
Hawaiians had the worst housing conditions in the State of 
Hawai'i and the highest percentage of homelessness, 
representing over 30 percent of the State's homeless 
population.
    The Commission concluded that the unique circumstances of 
Native Hawaiians require the enactment of new legislation to 
alleviate and address the severe housing needs of Native 
Hawaiians and recommended that the Congress extend to Native 
Hawaiians the same Federal housing assistance programs that are 
provided to American Indians and Alaska Natives under the Low-
Income Rental, Mutual Help, Loan Guarantee Program and 
Community Development Block Grant programs. Subsequently, the 
Community Development Block Grant program authority was amended 
to address the housing needs of Native Hawaiians.
    In 1995, the U.S. Department of Housing and Urban 
Development (HUD) issued a report entitled ``Housing Problems 
and Needs of Native Hawaiians.'' The HUD report was 
particularly helpful because it compared the data on Native 
Hawaiian housing conditions with housing conditions nationally 
and with the housing conditions of American Indians and Alaska 
Natives.
    The most alarming finding of the HUD report was that Native 
Hawaiians experience the highest percentage of housing problems 
in the nation--49 percent--higher than even that of American 
Indians and Alaska Natives residing on reservations (44 
percent) and substantially higher than that of all U.S. 
households (27 percent). Additionally, the HUD study found that 
the percentage of overcrowding in the Native Hawaiian 
population is thirty-six percent as compared to three percent 
for all other households in the United States.
    Applying the HUD guidelines, 70.8 percent of Native 
Hawaiians who either reside or who are eligible to reside on 
Hawaiian home lands have incomes which fall below the median 
family income in the United States, and 50 percent of those 
Native Hawaiians have incomes below thirty percent of the 
median family income in the United States.
    Also in 1995, the Hawai'i State Department of Hawaiian Home 
Lands published a Beneficiary Needs Study as a result of 
research conducted by an independent research group. This study 
found that among the Native Hawaiian population, the needs of 
Native Hawaiians eligible to reside on the Hawaiian home lands 
are the most severe--with 95 percent of home lands applicants 
(16,000) in need of housing, and with one-half of those 
applicant households facing overcrowding and one-third paying 
more than 30 percent of their income for shelter.
Health status
    Language contained in the 1984 Supplemental Appropriations 
Act, Public Law 98-396, directed the Department of Health and 
Human Services to conduct a comprehensive study of the health 
care needs of Native Hawaiians. The study was conducted under 
the aegis of Region IX of the Department by a consortium of 
health care providers and professionals from the State of 
Hawai'i in a predominantly volunteer effort, organized by Alu 
Like, Inc., a Native Hawaiian organization. An island-wide 
conference was held in November of 1985 in Honolulu to provide 
an opportunity for members of the Native Hawaiian community to 
review the study's findings. Recommended changes were 
incorporated in the final report of the Native Hawaiian Health 
Research Consortium, and the study was formally submitted to 
the Department of Health and Human Services in December of 
1985. The Department submitted the report to the Congress on 
July 21, 1986, and the report was referred to the Select 
Committee on Indian Affairs.
    Because the Consortium report's findings as to the health 
status of Native Hawaiians was compared only to other 
populations within the State of Hawai'i, the Select Committee 
requested that the Office of Technology Assessment (OTA), an 
independent agency of the Congress, undertake an analysis of 
Native Hawaiian health statistics as they compared to national 
data on other United States populations. Using the same 
population projection model that was employed in OTA's April 
1986 report on ``Indian Health Care to American Indian and 
Alaska Native Populations,'' and based on additional 
information provided by the Hawai'iState Department of Health 
and the Office of Hawaiian Affairs of the State of Hawai'i, the Office 
of Technology Assessment report contains the following findings:

          The Native Hawaiian population living in Hawai'i 
        consists of two groups, Hawaiians and part-Hawaiians, 
        who are distinctly different in both age distributions 
        and mortality rates. Hawaiians comprise less than 5 
        percent of the total Native Hawaiian population and are 
        much older than the young and growing part-Hawaiian 
        populations.
          Overall, Native Hawaiians have a death rate that is 
        34 percent higher than the death rate for the United 
        States all races, but this composite masks the great 
        differences that exist between Hawaiians and part-
        Hawaiians. Hawaiians have a death rate that is 146 
        percent higher than the U.S. all races rate. Part-
        Hawaiians also have a higher death rate, but only 17 
        percent greater. A comparison of age-adjusted death 
        rates for Hawaiians and part-Hawaiians reveals that 
        Hawaiians die at a rate 110 percent higher than part-
        Hawaiians, and this pattern persists for all except one 
        of the 13 leading causes of death that are common to 
        both groups.
          As in the case of the U.S. all races population, 
        Hawaiian and part-Hawaiian males have higher death 
        rates than their female counterparts. However, when 
        Hawaiian and part-Hawaiian males and females are 
        compared to their U.S. all races counterparts, females 
        are found to have more excess deaths than males. Most 
        of these excess deaths are accounted for by diseases of 
        the heart and cancers, with lesser contributions from 
        cerebrovascular diseases and diabetes mellitus.
          Diseases of the heart and cancers account for more 
        than half of all deaths in the U.S. all races 
        population, and their pattern is also found in both the 
        Hawaiian and part-Hawaiian populations, whether grouped 
        by both sexes or by male or female. However, Hawaiians 
        and part-Hawaiians have significantly higher death 
        rates than their U.S. all races counterparts, with the 
        exception of part-Hawaiian males, for whom the death 
        rate from all causes is approximately equal to that of 
        U.S. all races males.
          One disease that is particularly pervasive is 
        diabetes mellitus, for which even part-Hawaiian males 
        have a death rate 128 percent higher than the rate for 
        U.S. all races males. Overall, Native Hawaiians die 
        from diabetes at a rate that is 222 percent higher than 
        for the U.S. all races. When compared to their U.S. all 
        races counterparts, deaths from diabetes mellitus range 
        from 630 percent higher for Hawaiian females and 538 
        percent higher for Hawaiian males, to 127 percent 
        higher for part-Hawaiian females and 128 percent higher 
        for part-Hawaiian males.
          There is thus little doubt that the health status of 
        Native Hawaiians is far below that of other U.S. 
        population groups, and that in a number of areas, the 
        evidence is compelling that Native Hawaiians constitute 
        a population group for whom the mortality rate 
        associated with certain diseases exceed that for other 
        U.S. populations in alarming proportions.
          Native Hawaiians premise the high mortality rates and 
        the incidence of disease that far exceed that of other 
        populations in the United States upon the breakdown of 
        the Hawaiian culture and belief systems, including 
        traditional healing practices, that was brought about 
        by western settlement, and the influx of western 
        diseases to which the native people of the Hawaiian 
        Islands lacked immune systems. Further, Native 
        Hawaiians predicate the high incidence of mental 
        illness and emotional disorders in the Native Hawaiian 
        population as evidence of the cultural isolation and 
        alienation of the native peoples, in a statewide 
        population in which they now constitute only 20 
        percent. Settlement from both the east and the west 
        have not only brought new diseases which decimated the 
        Native Hawaiian population, but which devalued the 
        customs and traditions of Native Hawaiians, and which 
        eventually resulted in Native Hawaiians being 
        prohibited from speaking their native tongue in school, 
        and in many instances, at all.

    In 1998, Papa Ola Lokahi, a Native Hawaiian organization 
which oversees the administration of the Federally-authorized 
Native Hawaiian health care systems, updated the health care 
statistics from the original E Ola Mau report. In addition, on 
an annual basis, Papa Ola Lokahi extrapolates the data on 
Native Hawaiians gathered yearly by the Hawai'i State 
Department of Health from the Department's behavioral risk 
assessment and health surveillance survey. The findings from 
those assessments reveal that--
     With respect to cancer, Native Hawaiians have the 
highest cancer mortality rates in the State of Hawai'i (216 out 
of every 100,000 male residents and 191.6 out of every 100,000 
female residents), rates that are 21 percent higherthan that 
for the total State 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).
     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-blooded 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 eighteen 
years of age and younger, and 35 percent of all asthma cases 
reported, and in 1999, the Native Hawaiian rate for asthma was 
69 percent higher than the rate for the total statewide 
population.
     With respect to heart disease, the mortality rate 
for Native Hawaiians from heart disease is 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 five to ten years less than that of the overall 
State population average, and the most recent data for 1990 
indicates that Native Hawaiians life expectancy at birth is 
approximately five years less than that of the total State 
population.
     With respect to prenatal care, as of 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 
Hawaiian mothers were infants born to single mothers. 
Statistics indicated that infants born to single mothers have a 
higher risk of low birth weight and infant mortality. Of all 
low birth weight babies born to single mothers in the State of 
Hawai'i, 44 percent were Native Hawaiians.
     In 2001, Native Hawaiian fetal mortality rates 
comprised 21 percent of all fetal deaths for the State of 
Hawai'i. Thirty-seven percent of all fetal deaths occurring in 
mothers under the age of eighteen years were Native Hawaiians.

Education

    In 1981, the Senate instructed the Office of Education to 
submit to Congress a comprehensive report on Native Hawaiian 
education. The report, entitled the ``Native Hawaiian 
Educational Assessment Project,'' was released in 1983 and 
documented that Native Hawaiians scored below parity with 
regard to national norms on standardized achievements tests, 
were disproportionately represented in many negative social and 
physical statistics indicative of special educational needs, 
and had educational needs that were related to their unique 
cultural situation, such as different learning styles and low 
self-image.
    In recognition of the educational needs of native 
Hawaiians, in 1988 the Congress enacted title IV of the 
Augustus F. Hawkins-Robert T. Stafford Elementary and Secondary 
School Improvement Amendments of 1988 (102 Stat. 130) to 
authorize and develop supplemental educational programs to 
benefit Native Hawaiians. In 1993, the Kamehameha Schools 
Bishop Estate released a ten-year update of findings for the 
Native Hawaiian Educational Assessment Project, finding that 
despite the successes of the programs established under title 
IV of the Augustus F. Hawkins-Robert T. Stafford Elementary and 
Secondary School Improvement Amendments of 1988, many of the 
same educational needs still existed for Native Hawaiians. 
Subsequent reports by the Kamehameha Schools Bishop Estate and 
other organizations have generally confirmed those findings. 
For example--
          (A) educational risk factors continue to start even 
        before birth for many Native Hawaiian children, 
        including--
                  (i) late or no prenatal care;
                  (ii) high rates of births by Native Hawaiian 
                women who are unmarried; and
                  (iii) high rates of births to teenage 
                parents;
          (B) Native Hawaiian students continue to begin their 
        school experience lagging behind other students in 
        terms of readiness factors such as vocabulary test 
        scores;
          (C) Native Hawaiian students continue to score below 
        national norms on standardized education achievement 
        tests at all grade levels;
          (D) both public and private schools continue to show 
        a pattern of lower percentages of Native Hawaiian 
        students in the uppermost achievement levels and in 
        gifted and talented programs;
          (E) Native Hawaiian students continue to be over 
        represented among students qualifying for special 
        education programs provided to students with learning 
        disabilities, mild mental retardation, emotional 
        impairment, and other such disabilities;
          (F) Native Hawaiians continue to be under represented 
        in institutions of higher education and among adults 
        who have completed 4 or more years of college;
          (G) Native Hawaiians continue to be 
        disproportionately represented in many negative social 
        and physical statistics, indicative of special 
        educational needs, as demonstrated by the fact that--
                  (1) Native Hawaiian students are more likely 
                to be retained in grade level and to be 
                excessively absent in secondary school;
                  (ii) Native Hawaiian students are the highest 
                users of drugs and alcohol in the State of 
                Hawai'i; and
                  (iii) Native Hawaiian children continue to be 
                disproportionately victimized by child abuse 
                and neglect; and
          (H) Native Hawaiians now comprise over 23 percent of 
        the students served by the State of Hawai'i Department 
        of Education, and there are and will continue to be 
        geographically rural, isolated areas with a high Native 
        Hawaiian population density.
    In the 1998 National Assessment of Educational Progress, 
Native Hawaiian fourth-graders ranked thirty-ninth among groups 
of students from thirty-nine States and the District of 
Columbia in reading.

                                
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