[Senate Report 108-85]
[From the U.S. Government Publishing Office]
Calendar No. 185
108th Congress Report
SENATE
1st Session 108-85
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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).
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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\
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\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)).
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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\
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\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).
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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.
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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\
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\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.
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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\
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\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.
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\86\ See generally Victoria Shook, Ho'oponopono, Contemporary Uses
of a Hawaiian Problem-Solving Process (1985).
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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.
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\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).
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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\
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\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.).
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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.
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\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).
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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.
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\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\
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\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\
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\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\
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\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).
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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\
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\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.
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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.
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\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.
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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.
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\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.
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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.
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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).
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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:
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\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\
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\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.
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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
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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.