[Senate Report 111-162]
[From the U.S. Government Publishing Office]
Calendar No. 314
111th Congress
SENATE
2d Session Report 111-162
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TO EXPRESS 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
_______
March 11, 2010.--Ordered to be printed
_______
Mr. Dorgan, from the Committee on Indian Affairs, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 1011]
The Committee on Indian Affairs, to which was referred the
bill (S. 1011) to express 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, reports thereon
with an amendment in the nature of a substitute and recommends
that the bill as amended do pass.
PURPOSE
The purpose of S. 1011 is to establish a process for the
reorganization of a Native Hawaiian government and, when that
process has been completed in accordance with the Act, to
reaffirm the special political and legal relationship between
the United States and the Native Hawaiian governing entity for
purposes of carrying on a government-to-government
relationship.
BACKGROUND AND HISTORY
S. 1011 is the most recent Senate bill establishing a
process for reorganizing and recognizing a Native Hawaiian
governing entity. Similar bills have been introduced since
1999. These bills are the result of long-standing efforts to
address the consequences of the 1893 overthrow of the Kingdom
of Hawaii, an event that officers of the United States
participated in and encouraged, and to provide a process by
which to organize a federally recognized native group.
The language of S. 1011, as introduced, is identical to
legislative language that was negotiated between the Hawaii
Congressional Delegation and officials from the Department of
Justice, the Office of Management and Budget, and the White
House in the 109th and 110th Congresses. The language is
intended to address concerns expressed in a July 2005 letter
from the Administration regarding land claims, as well as the
bill's impact on military readiness, gaming, and civil and
criminal jurisdiction in Hawaii.
In 1993, Congress passed an Apology Resolution (Pub. L. No.
103-150) in which it apologized on behalf of the United States
to the Native Hawaiians for the United States' role in the
overthrow of the Native Hawaiian government and committed the
United States to supporting reconciliation efforts between the
United States and the Native Hawaiian people. In response to
the Apology Resolution, the Departments of the Interior and
Justice initiated a process of reconciliation in 1999 by
conducting meetings in Native Hawaiian communities. The result
of these reconciliation efforts was a joint report, From Mauka
to Makai: The River of Justice Must Flow Freely, published in
2000. Since the issuance of the report, the Senators from
Hawaii have introduced legislation to implement the findings of
the reconciliation report. This Committee held several hearings
on the matter and has continued to hold hearings each Congress.
Native Hawaiians are the native people of Hawaii with whom
the United States has a special legal and political
relationship. Since 1921, Congress has repeatedly recognized
the distinct status of Native Hawaiians. The long-standing
policy of the United States has been to protect and advance
Native Hawaiian interests.
Native Hawaiians continue to suffer the consequences of the
1893 overthrow of their indigenous government. Today, Native
Hawaiians continue to have higher rates of poverty and lower
incomes than non-Native Hawaiians in Hawaii.\1\ Establishing an
avenue for Native Hawaiians to reorganize and receive Federal
recognition will provide opportunities for Native Hawaiians to
preserve their cultural resources, exercise self-governance and
self-determination, and develop their own solutions to the
problems faced by their community.
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\1\The per capita income for Native Hawaiians is almost 35% lower
than the statewide figure. See Shawn M. Kanaiaupuni et al., Income and
Poverty Among Native Hawaiians: Summary of Ka Huakai Findings 4 (2005)
(relying on U.S. Census 2000 data). One in seven Native Hawaiian
families lives below the poverty level. Id. at 7; see also Income and
Poverty in Hawaii; 2008, Hawaii Dep't of Bus., Econ. Dev., and Tourism
1-2 (2008) (citing U.S. Census Bureau data from the 2008 American
Community Survey).
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Native Hawaiian society before European contact
Hawaii was originally settled by voyagers from central and
eastern Polynesia who travelled great distances in double-
hulled voyaging canoes to arrive in Hawaii, perhaps as early as
300 A.D.
Hundreds of years of Hawaiian isolation followed the era of
``long voyages.'' During these centuries, the Native Hawaiians
evolved a 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. There was no concept of private land ownership in
early Hawaiian thought. The communal nature of the economy and
the structure of the society resulted in values strikingly
different from those prevalent in more competitive Western
economies and societies.
Hawaii's social, economic, and political system was highly
developed and evolving, and its population, conservatively
estimated to be at least 300,000, was relatively stable before
the arrival of the first European explorers.\2\
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\2\See David E. Stannard, Before the Horror: The Population of
Hawaii on the Eve of Western Contact 59 (1989) (arguing that a
population estimate of 800,000 is a ``low to moderate estimate'').
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European contact
Hawaii was ``discovered'' by Europeans in 1778, when
Captain James Cook of the British Royal Navy landed. In their
logs and diaries, Captain Cook and his officers referred to the
people they found in the Hawaiian Islands as ``Indians.''\3\
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\3\See, e.g., Richard H. Houghton III, An Argument for Indian
Status for Native Hawaiians: The Discovery of a Lost Tribe, 14 Am.
Indian L. Rev. 1, 10 & n.74 (citing 3 Captain Cook's Journals 490-91,
530, 540 (W. Wharton, ed. 1893)).
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Other foreign vessels soon followed on journeys of
exploration or trade.\4\ In the years following Cook's arrival,
warring Hawaiian chiefs used foreign weapons and fought for
control of Hawaii. In 1810, the Native Hawaiian political,
economic, and social structure was unified under a monarchy led
by King Kamehameha I. The authority of the King was derived
from the gods, and he was a trustee of the land and other
natural resources of the islands which were held communally.
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\4\Lawrence H. Fuchs, Hawaii Pono: A Social History 8-10 (1961).
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Western contact led to a precipitous decline in the Native
Hawaiian population. Between Cook's arrival in 1778 and 1820,
disease, famine, and war killed more than half of the Native
Hawaiian population. By 1866, only 57,000 Native Hawaiians
lived on the islands, compared to the stable pre-1778
population of at least 300,000. The impact of Western contact
was greater than the numbers can convey: old people were left
without the young adults to support them; children were left
without parents or grandparents to instill traditional values
and practices. The result was a rending of the social fabric.
This devastating population loss was accompanied by
cultural destruction. Western sailors, merchants, and traders
did not abide by the Hawaii kapu (taboos) system or religious
practices. As a result, the chiefs began to imitate the
foreigners, whose ships and arms were technologically more
advanced than their own.\5\ The kapu were abandoned soon after
the death of Kamehameha I.
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\5\Id. at 8-9.
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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 to obtain the
supplies and valuable sandalwood needed for such trades. As
Hawaii's stock of sandalwood declined, so did that trade.\6\
However, it was replaced by whaling and other mercantile
activities.\7\ Soon, more than four-fifths of Hawaii's foreign
commerce was American; the whaling services industry and
mercantile business in Honolulu were primarily in American
hands.\8\ Eventually, the principles of communal ownership and
cultivation of the land were replaced by a Western system of
individual property ownership.
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\6\Melody Kapilialoha MacKenzie, Historical Background, Native
Hawaiian Rights Handbook 5 (Melody Kapilialoha MacKenzie, ed., 1991).
\7\Fuchs, supra note 4, at 10-11; Ralph S. Kuykendall & A. Grove
Day, Hawaii: A History, From Polynesian Kingdom to American State 41-43
(rev. ed., Prentice-Hall, Inc. 1961).
\8\Fuchs, supra note 4, at 18-19; MacKenzie supra note 6, at 6, 9-
10.
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The mass privatization of Native Hawaiian land
As the middle of the 19th century approached, the islands'
small non-Hawaiian population wielded an influence far in
excess of its size.\9\ These influential Westerners sought to
limit the power of the Hawaiian King over their legal rights
and to implement property law so that they could accumulate and
control land. These goals were achieved as a result of foreign
pressure.\10\
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\9\In the mid-1800s, non-Hawaiians were able to acquire land
formerly under the control of Native Hawaiians. These non-natives
sought and were able to ``consolidate their economic gains into
political dominance.'' Cohen's Handbook of Federal Indian Law
Sec. 4.07[4][b], at 366-67 (Nell Jessup Newton ed., 2005) [hereinafter
Cohen's Handbook].
\10\MacKenzie, supra note 6, at 6.
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The Westerners' efforts were successful in 1840, when the
King of Hawaii promulgated a new constitution, establishing a
hereditary House of Nobles and an elected House of Commons. In
1842, the King authorized the Great Mahele, the division of
Hawaii's communal land system into private ownership between
himself and his royal successors, the chiefs, and the Hawaiian
government. Ultimately, the Great Mahele led to the transfer of
substantial amounts of land into Western hands. In 1848, the
King conveyed about 1.5 million of the approximately 4 million
acres in the islands to the konohiki (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 Hawaii (``Government Lands'').\11\
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\11\Cohen's Handbook, supra note 9, Sec. 4.07[4][b], at 367 (citing
Jon Chinen, The Great Mahele 31 (Univ. Haw. Press 1958)).
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All lands remained subject to the rights of native tenants.
However, in 1850, after the division was accomplished, an act
was passed permitting non-natives to purchase land from Native
Hawaiians in fee simple. This resulted in a dramatic
concentration of land ownership in plantations, estates, and
ranches owned by non-natives. The law implementing the Great
Mahele contemplated that the makaainana (commoners) would
receive a substantial portion of the distributed lands 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 Native Hawaiian farmers.\12\
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\12\MacKenzie, supra note 6, at 6-9. The makaainana failed to
secure a great portion of the land for a number of reasons. Many 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, or were killed in epidemics or migrated
to cities. Id. at 8.
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United States enters into treaties with Native Hawaiian government
Ultimately, the 2,000 Westerners who lived on the islands
obtained much of the profitable acreage from the commoners and
chiefs. The mutual interests of Americans living in Hawaii and
those living in the United States became increasingly clear.
American merchants and planters in Hawaii wanted access to
mainland markets and protection from European and Asian
domination.
The United States developed a military and economic
interest in placing Hawaii within its sphere of influence. To
protect its interests, the United States entered into a series
of four treaties with the Kingdom of Hawaii. American advisors
urged the King to pursue international recognition of Hawaiian
sovereignty, backed by an American guarantee of continued
independence.
America's political influence in Hawaii was heightened by
the rapid growth of the island sugar industry which followed
the Great Mahele. The 1875 Convention on Commercial Reciprocity
eliminated the American tariff on sugar from Hawaii and
virtually all tariffs that Hawaii had placed on American
products.\13\ Critically, it also prohibited Hawaii from giving
political, economic, or territorial preferences to any other
foreign power. When the Reciprocity Treaty was extended in
1887, the United States also obtained the right to establish a
military base at Pearl Harbor.\14\
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\13\S. Exec. Doc. No. 52-77, at 160-63 (1893).
\14\Supplementary Convention, Dec. 6, 1884, U.S.-Haw., art. II, 25
Stat. 1400 (proclaimed Nov. 9, 1887).
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Overthrow of the Native Hawaiian government
In 1887, King Kalakaua appointed a prime minister who was
supported by the Native Hawaiian people and who opposed
allowing the United States to establish a military base at
Pearl Harbor as a part of the Reciprocity Treaty. The business
community, backed by the Honolulu Rifles, a military group
formed by the children of American missionaries, forced the
prime minister's resignation and the enactment of a new
constitution. The new constitution, often referred to as the
Bayonet Constitution due to the use of military force, reduced
the King to a figure of minor constitutional 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. This resulted in
representatives of the Westerners taking control of the
legislature.\15\
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\15\Nonetheless, at least one scholar has concluded that ``the
Native Hawaiians still played an active and usually dominant role in
the politics of the islands, because though the new 1887 Constitution
increased the political power of the large foreign property-holders in
various ways, the suffrage was still in native hands. The 1890 census
reported that 13,593 were registered to vote, and of these 8,777 were
listed as `natives' and another 777 were `half-castes,' i.e., part-
Hawaiians.'' Jon M. Van Dyke, Population, Voting, and Citizenship in
the Kingdom of Hawaii, 28 U. Haw. L. Rev. 81, 100 (2005) (internal
quotation marks, alterations, and citations omitted). The same scholar
concludes more broadly that it is ``not in doubt'' that ``Native
Hawaiians constituted the overwhelming majority of the political
community that participated in the decisionmaking in the Kingdom at the
time of the 1893 overthrow.'' Id. at 81.
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In 1891, Queen Liliuokalani came to power. Queen
Liliuokalani supported promulgating a new constitution that
would restore absolute control over the legislature to the
reigning sovereign. Realizing that the Hawaiian monarchy posed
a continuing threat to the unimpeded pursuit of Western
interests, the Westerners formed a Committee of Public Safety
to overthrow the Kingdom of Hawaii. Mercantile and sugar
interests also favored annexation by the United States to
ensure access on favorable terms to mainland markets and
protection from Asian conquest. The American annexation group
collaborated closely with the United States Minister in
Hawaii.\16\
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\16\See 39 L.A. Thurston, Memoirs of the Hawaiian Revolution 230-32
(1936).
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On January 16, 1893, at the order of United States Minister
John Stevens, a contingent of United States Marines from the
USS Boston marched through Honolulu to a building located near
both the government building and the palace.\17\ The next day,
local non-Hawaiian revolutionaries seized the government
building and demanded that Queen Liliuokalani abdicate the
monarchy.\18\ Minister Stevens immediately recognized the
rebels' provisional government and placed it under the United
States' protection.
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\17\Id.
\18\Id.
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Upon hearing the news, United States President Benjamin
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
Grover Cleveland assumed office and withdrew the treaty; he
also demanded that the Queen be restored.\19\ But the Senate
Foreign Relations Committee issued a report ratifying Stevens's
actions and recognizing the provisional government of Hawaii.
In doing so, the Senate Foreign Relations Committee described
the relations between the United States and Native Hawaiian
government as unique because ``Hawaii has been all the time
under a virtual suzerainty [a nation controlled by another
nation] of the United States.''\20\
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\19\President's Message Relating to the Hawaiian Islands, H. Exec.
Doc. No. 53-47, at xv (1893) (asserting that the United States ``can
not allow itself to refuse to redress an injury inflicted through an
abuse of power by officers clothed with its authority and wearing its
uniform; . . . the United States can not fail to vindicate its honor
and its sense of justice by an earnest effort to make all possible
reparation'').
\20\S. Rep. No. 53-227, at 21 (1894) (emphasis added).
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Hawaii's path to statehood, 1893-1959
As a result of this impasse between President Cleveland and
the Senate, the United States Government neither restored the
Queen nor annexed Hawaii. The Provisional Government of Hawaii
called a constitutional convention whose composition and
members it controlled.\21\ The convention promulgated a
constitution for the new Republic of Hawaii that imposed
property and income qualifications as prerequisites for the
franchise and for holding elected office.\22\ Article 101 of
the Constitution of the Republic of Hawaii required prospective
voters to swear an oath of support to the Republic and to
declare 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.''\23\
The overwhelming majority of the Native Hawaiian population,
who were loyal to their Queen, refused to swear such an oath
and were effectively disenfranchised.\24\
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\21\Kuykendall & Day, supra note 7, at 183.
\22\Id. at 184; MacKenzie, supra note 6, at 13.
\23\Republic of Haw. Const. art. 101.
\24\U.S. Dep't of the Interior & U.S. Dep't of Justice, From Mauka
to Makai: The River of Justice Must Flow Freely 29 (2000) [hereinafter
Mauka to Makai Report] (citing NoeNoe K. Silva, Kanaka Maoli Resistance
to Annexation, 1Oiwi: A Native Hawaiian Journal (Dec. 1998)).
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In 1896, William McKinley was elected President of the
United States. He quickly sent the Senate another annexation
treaty. Simultaneously, the Native Hawaiian people adopted
resolutions which they sent to Congress stating that they
opposed annexation and wanted to be an independent kingdom.\25\
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.
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\25\W.A. Russ, The Hawaiian Republic (1894-1898) 198, 209 (1961).
The resolutions were signed by 21,269 people, representing more than
50% of the Native Hawaiian population at that time. Jon M. Van Dyke,
The Political Status of the Native Hawaiian People, 17 Yale L. & Pol'y
Rev. 95, 103 & n.48 (1998) (citing Dan Nakaso, Anti-Annexation Petition
Rings Clear, Honolulu Advertiser, Aug. 5, 1998, at 1).
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However, pro-annexation forces in the House of
Representatives introduced a Joint Resolution of Annexation
that could be adopted with only a simple majority in each House
of Congress. The balance was tipped in favor of the Resolution
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.\26\ In July 1898, the Joint Resolution was
enacted, ``the fruit of approximately seventy-five years of
expanding American influence in Hawaii.''\27\
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\26\Kuykendall & Day, supra note 7, at 188; MacKenzie, supra note
6, at 14.
\27\Fuchs, supra note 4, at 36.
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On August 12, 1898, the Republic of Hawaii ceded
sovereignty and conveyed title to its public lands, including
the Government and Crown Lands, to the United States.\28\ In
1900, Congress passed the Hawaii Organic Act,\29\ establishing
a Hawaiian territorial government. Ultimately, Congress
admitted Hawaii to the Union as the fiftieth state with the
enactment of the Admission Act in 1959.
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\28\Joint Resolution for Annexing the Hawaiian Islands to the
United States, ch. 55, 30 Stat. 750, 751 (1898) (Annexation
Resolution).
\29\Act of April 30, 1900, ch. 339, 31 Stat. 141 (Organic Act).
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Continuity of Native Hawaiian identity
Even after the overthrow of the Hawaiian monarchy, Native
Hawaiians continued to maintain their separate identity as a
single distinct political community through cultural, social,
and political institutions, and through efforts to develop
programs to provide governmental services to Native Hawaiians.
For example, the Hawaiian Protective Association--a political
organization with bylaws and a constitution that sought to
maintain unity among Native Hawaiians, protect Native Hawaiian
interests (including by lobbying the legislature), and promote
the education, health, and economic development of Native
Hawaiians--was organized in 1914 ``for the sole purpose of
protecting the Hawaiian people and of conserving and promoting
the best things of their tradition.''\30\ To this end, the
Association established twelve standing committees, published a
newspaper, undertook dispute resolution, promoted the education
and the social welfare of the Native Hawaiian community, and
developed the framework that became the Hawaiian Homes
Commission Act (``HHCA'') in 1921. In 1918, Prince Jonah Kuhio
Kalanianaole (Prince Kuhio), the Territory of Hawaii's delegate
to Congress, and other prominent Hawaiians founded the Hawaiian
Civic Clubs, the goal of which was ``to perpetuate the
language, history, traditions, music, dances and other cultural
traditions of Hawaii.''\31\ The clubs' first project was to
secure enactment of the HHCA, and the clubs remain in existence
today.
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\30\Hawaiian Homes Commission Act, 1920: Hearing on H.R. 13500
Before the S. Comm. on Territories, 66th Cong. 44 (1920) (statement of
Rev. Akaiko Akana).
\31\McGregor, Aina Hoopulapula: Hawaiian Homesteading, 24 Hawaiian
J. of Hist. 1, 5 (1990).
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Efforts to maintain a distinct political community have
continued through the 20th century to the present day. Examples
include the 1988 Native Hawaiian Sovereignty Conference; the
Kau Inoa initiative, which registers Native Hawaiians for a
movement toward a Native Hawaiian governing entity; the efforts
to protect the North West Hawaiian Islands because of their
cultural and traditional significance; the creation of the
Office of Hawaiian Affairs, which serves as an entity to
protect Native Hawaiian interests; and the development of
traditional justice programs, including a traditional method of
alternative dispute resolution, ``hooponopono,'' which has been
endorsed by the Native Hawaiian Bar Association.\32\
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\32\See Andrew J. Hosmanek, Cutting the Cord: Ho'oponopono and
Hawaiian Restorative Justice in the Criminal Law Context, 5 Pepp. Disp.
Resol. L.J. 359 (2005).
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Moreover, as S. 1011's findings explain, ``the Native
Hawaiian people have actively maintained native traditions and
customary usages throughout the Native Hawaiian community, and
the Federal and State courts have continuously recognized the
right of the Native Hawaiian people to engage in certain
customary practices and usages on public lands.''\33\ For
example, traditional Native Hawaiian fishing and water rights
are protected by state law,\34\ and a 1978 amendment to the
Hawaii Constitution specifically protects ahupuaa tenants'
traditional and customary rights for subsistence, cultural, and
religious purposes.\35\ Hawaiian courts have also recognized
and upheld traditional gathering and access rights.\36\ In
addition, Native Hawaiian traditional practices are often
permitted on Federal lands, including National Parks.\37\
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\33\S. 1011, Section 2(12); see also S. 1011, Section 2(18)
(``Native Hawaiian people are actively engaged in Native Hawaiian
cultural practices, traditional agricultural methods, fishing and
subsistence practices, maintenance of cultural use areas and sacred
sites, protection of burial sites, and the exercise of their
traditional rights to gather medicinal plants and herbs, and food
sources.'').
\34\See, e.g., Haw. Rev. Stat. Sec. 174C-101(c), (d) (stating that
certain traditional and customary water rights ``shall not be abridged
or denied,'' or ``diminished or extinguished,'' by provision of the
State Water Code); id. Sec. 187A-23 (providing for recognition of
certain ``vested fishing rights'' linked to ``ancient regulations'').
\35\Haw. Const. art. XII, Sec. 7. In ancient Hawaii, the islands
were divided into landholding units known as ahupua'a, self-sufficient
areas that generally ran from the sea to the mountains. In Re
Boundaries of Pulehunui, 4 Haw. 239 (1879).
\36\See, e.g., Public Access Shoreline Hawaii v. Hawaii County
Planning Comm'n, 903 P.2d 1246 (Haw. 1995); State v. Hanapi, 970 P.2d
485 (Haw. 1998); Kalipi v. Hawaiian Trust Co., 656 P.2d 745 (Haw.
1982).
\37\See, e.g., 16 U.S.C. Sec. 396d (Kaloko-Honokohau National
Historical Park).
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Further, Native Hawaiian customary law continues to be
preserved and recognized by Hawaii state courts, notably in the
areas of property and family law.\38\ Traditional Hawaiian
usage, in the absence of a statute, is controlling over common
law to the contrary.\39\ Testimony of kamaaina witnesses, who
have knowledge of ancient traditions, customs, and usages, may
be admitted in State-court land disputes.\40\ In addition,
courts have taken into account a form of customary adoption,
hanai, in determining, for example, whether a child
``issue[d]'' from his adoptive parents was entitled to a share
of their estates,\41\ and in measuring damages for intentional
infliction of emotional distress.\42\
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\38\``In modern times the state legislature and courts of Hawaii,
to a degree not found in any other state, have recognized and supported
an array of traditional rights relating to beach access, fishing,
water, access to sacred sites, and language.'' Charles Wilkinson, Blood
Struggle: The Rise of Modern Indian Nations 371 (2005).
\39\See Haw. Rev. Stat. Sec. 1-1; In re application of Ashford, 440
P.2d 76, 77-78 (1968).
\40\Id.
\41\O'Brien v. Walker, 35 Haw. 104 (Haw. Terr. 1939).
\42\Leong v. Takasaki, 520 P.2d 758, 767 (Haw. 1974).
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These practices and legal protections further reinforce the
Native Hawaiian community's continuing status as a distinctly
native community.
RECOGNITION BY THE UNITED STATES OF OBLIGATIONS TO NATIVE HAWAIIANS
In keeping with the special status generally accorded other
native groups, Congress has recognized the distinct status of
the Native Hawaiians by ``extend[ing] services to [them]'' on
the basis of that status, recognizing that they are ``the
native people of a prior-sovereign nation with whom the United
States has a special political and legal relationship.''\43\ As
evidence of this special relationship, Congress has enacted
more than 150 laws addressing the conditions of Native
Hawaiians and providing them with benefits. Two important
examples--the Hawaiian Homes Commission Act and the Hawaii
Admission Act--are discussed in the next two sections. However,
numerous other examples of Congress's recognition of the
distinct status of the Native Hawaiians could be cited,
including the Native American Language Act of 1990, which
recognized and clarified the language rights of American
Indians, Alaska Natives, and Native Hawaiians and explicitly
allowed exceptions to teacher certification requirements for
instruction in Native American languages; the Native Hawaiian
Education Act of 1988 (Title IV of the Augustus F. Hawkins-
Robert T. Stafford Elementary and Secondary School Improvement
Amendments of 1988) which awarded $30 million annually in
competitive education grants to programs benefitting Native
Hawaiian students; the Native Hawaiian Assessment Project of
1983; the Native Hawaiian Health Care Improvement Act; the
Native American Graves Protection and Repatriation Act; and the
Native American Housing Assistance and Self-Determination Act
of 1996.
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\43\S. 1011, Section 2(23)(C); see, e.g., Brief of United States at
4-5, 16 & nn.2-4, Rice v. Cayetano, 528 U.S. 495 (2000) (citing
statutes in which Congress ``established special Native Hawaiian
programs in the areas of health care, education, employment, and
loans''; sought ``to preserve Native Hawaiian culture, language, and
historical sites; and ``by classifying Native Hawaiians as Native
Americans . . . extended to Native Hawaiians many of the same rights
and privileges accorded to American Indian, Alaska Native, Eskimo, and
Aleut communities.) (internal citations and quotation marks omitted).
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Hawaiian Homes Commission Act
Congress explicitly recognized the existence of a special
legal and political relationship between the Native Hawaiian
people and the United States with the enactment of the Hawaiian
Homes Commission Act in 1921. Prior to enactment of this law,
Congress received testimony from Executive Branch officials
analogizing the Federal Government's relationship with, and
responsibilities to, Native Hawaiians to its relationship with
other Native Americans.
As described above, beginning in the early 1800s, large
amounts of land in Hawaii were made available to foreigners and
were eventually leased to them to cultivate pineapple and sugar
cane. Large numbers of Native Hawaiians were forced off the
lands that they had cared for and traditionally occupied. Many
of these Native Hawaiians moved into the urban areas, often
living in severely overcrowded tenements and contracting
diseases for which they had no immunities.
By 1920, due to the dramatic decline in the number of
Native Hawaiians in the decades leading up to and following the
overthrow of the monarchy, many concluded that if the native
people of Hawaii were to be saved from extinction, they had to
have the means of regaining their connection to the land, the
aina.\44\ In hearings on the matter, Secretary of the Interior
Franklin Lane explained the special relationship on which the
statute was premised:
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\44\The legislative history of the HHCA includes numerous
references to the Native Hawaiian community as a ``race'' or a ``dying
race.'' See, e.g., H.R. Rep. No. 66-839, at 2 (1920). This is
consistent with the way Federal officials referred to Indian tribes
during the same period. See, e.g., United States v. Sandoval, 231 U.S.
28, 46 (1913) (referring to ``these remnants of a race once powerful,
now weak and diminished in numbers'' (quoting United States v. Kagama,
118 U.S. 375, 384 (1886)); United States v. Rickert, 188 U.S. 432, 437
(1903) (referring to the ``weakness and helplessness'' of ``this
dependent race'') (internal citation omitted)). The HHCA legislative
history also refers to Native Hawaiians as a ``people.'' See, e.g.,
H.R. Rep. No. 66-839, at 3 (1920) (referring to Native Hawaiians as ``a
dying people''); id. at 4 (referring to Native Hawaiians as a ``noble
people''). This locution also was used with regard to Indian tribes.
See, e.g., Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832).
One thing that impressed me . . . was the fact that
the natives of the island, 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.\45\
---------------------------------------------------------------------------
\45\H.R. Rep. No. 66-839, at 4 (1920).
Secretary Lane explained 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.\46\
---------------------------------------------------------------------------
\46\Proposed Amendments to the Organic Act of the Territory of
Hawaii: Hearings Before the H. Comm. on the Territories, 66th Cong.
129-31 (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,'' 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, and citing a Department of the Interior Solicitor's opinion
stating that setting aside public lands within the Territory of Hawaii
would not be unconstitutional, relying in part on the Congressionally
authorized allotment to Indians as precedent for such an action); see
also id. at 127 (colloquy between Secretary Lane and Representative
Monahan, analogizing status of Native Hawaiians to that of Indians);
id. 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 Hawaii, testified before the
United States House of Representatives as follows:
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 big 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.\47\
---------------------------------------------------------------------------
\47\Id. at 39. Wise's testimony was also quoted and adopted in the
House Committee on the Territories' report to the full U.S. House of
Representatives. H.R. Rep. No. 66-839, at 4 (1920).
In 1920, Prince Kuhio, the Territory's sole delegate to
Congress, testified before the full U.S. House of
Representatives: ``[I]f conditions continue to exist as they do
today, . . . my people . . . will pass from the face of the
earth.''\48\ Secretary Lane attributed the declining population
to health problems like those faced by the ``Indian in the
United States'' and concluded that the Nation must provide
similar remedies.\49\
---------------------------------------------------------------------------
\48\59 Cong. Rec. 7453 (1920) (statement of Delegate Jonah Kuhio
Kalanianaole).
\49\H.R. Rep. No. 66-839. at 5 (1920) (statement of Secretary
Lane).
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The effort to ``rehabilitate'' Native Hawaiians by
returning them to the land led Congress to enact the Hawaiian
Homes Commission Act on July 9, 1921. The Act set aside
approximately 200,000 acres of the Ceded Lands for homesteading
by Native Hawaiians.\50\ Congress compared the Act to
``previous enactments granting Indians . . . special privileges
in obtaining and using the public lands.''\51\ In support of
the Act, the House Committee on the Territories recognized
that, prior to the Great Mahele, Hawaiians had a one-third
interest in the lands of the Kingdom. The Committee reported
that the Act was necessary to address the way Hawaiians had
been short-changed in prior land-distribution schemes.\52\
---------------------------------------------------------------------------
\50\Hawaiian Homes Commission Act, 1920, Pub. L. No. 67-34,
Sec. Sec. 203-204, 42 Stat. 108, 109-10.
\51\H.R. Rep. No. 66-839, at 11 (1920); see id. at 4 (suggesting
that the HHCA was enacted in part because, after the arrival and
settlement of foreigners in Hawaii, the Native Hawaiians had been
``frozen out of their lands and driven into the cities,'' where they
were ``dying'' as a people).
\52\Id. at 6-7.
---------------------------------------------------------------------------
The 1921 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,\53\ 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 1923,
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.\54\
---------------------------------------------------------------------------
\53\25 U.S.C. Sec. Sec. 331-334, 339, 342, 348, 349, 381 (1998).
\54\See Mauka to Makai Report, supra note 24, at 36.
---------------------------------------------------------------------------
During the remainder of the Territorial period and the
first two decades following statehood, administration of the
Hawaiian home lands program was inadequately funded, and some
of the best lands were leased to non-Hawaiians to generate
operating funds. Little income remained 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 homelands,
made the program an illusory promise for most Native
Hawaiians.\55\ While the Act did not succeed in its purpose,
its enactment is an express affirmation of the United States'
special political and legal relationship to and responsibility
for the Native Hawaiian people.
---------------------------------------------------------------------------
\55\See id. at 32-37.
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The Hawaii Admission Act
As a condition of statehood, the Hawaii Admission Act\56\
required the State of Hawaii to adopt the Hawaiian Homes
Commission Act and imposed a public trust on the lands ceded by
the United States to the new State. The 1959 Compact between
the United States and the People of Hawaii by which Hawaii was
admitted into the Union expressly provides that:
---------------------------------------------------------------------------
\56\Pub. L. No. 86-3, 73 Stat. 4 (Mar. 18, 1959) (the ``Admission
Act'').
[Section 4.] 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 the ``available lands'', as defined by said Act,
shall be used only in carrying out the provisions of
said Act.
* * * * * * *
[Section 5(f).] The lands granted to the State of
Hawaii by subsection (b) of this section and public
lands retained by the United States under subsections
(c) and (d) and later conveyed to the State under
subsection (e), together with the proceeds 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 the 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.\57\
---------------------------------------------------------------------------
\57\Admission Act Sec. Sec. 4, 5(f), 73 Stat. at 5-6 (emphasis
added).
These transfers of Federal authority to the new State were
not discretionary or permissive. The United States is empowered
to sue to compel compliance with the terms of the trust. For
example, the Federal courts have noted that the United States
retains the authority to bring an enforcement action against
the State of Hawaii for breach of the section 5(f) trust.\58\
Moreover, sections 204 and 223 of the Hawaiian Homes Commission
Act provide that the consent of the Secretary of the Interior
must be obtained for certain exchanges of land and reserve to
Congress the right to amend that Act.\59\
---------------------------------------------------------------------------
\58\Han v. United States, 45 F.3d 333, 337 (9th Cir. 1995).
\59\With the adoption of its new Constitution, the State of Hawaii
assumed the responsibility of administering the Ceded Lands in
accordance with the five purposes set forth in the Admission Act and of
managing the 203,500 acres of land that had been set aside by Congress
in 1921 for the benefit of the native people of Hawaii under the
Hawaiian Homes Commission Act. See Haw. Const. art. XII, Sec. Sec. 2,
4; id. art. XVI, Sec. 7.
---------------------------------------------------------------------------
Treatment of Native Hawaiians compared to other indigenous groups
The Hawaiian Homes Commission Act and the Hawaii Admission
Act--the most significant actions the United States has taken
to date in respect to the native people of Hawaii--must be
understood in the context of the Federal policy towards members
of other native groups.
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. Much of the 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.
A 25-year restraint on the alienation of allotted lands was
typically imposed. This restraint prevented the lands from
being subject to taxation by the States, but the restraint
could be lifted if an individual Indian was deemed to be
``civilized.'' Once the restraint on alienation was lifted and
individual Indian lands became subject to taxation, Indians who
could not pay the property taxes often had their land seized.
This ``allotment era'' in Federal Indian policy was
responsible for the alienation of more than half of all Indian
lands nationwide. Nearly 90 million acres of lands fell out of
native ownership in less than half a century, and although the
primary objective of the allotment of lands to individual
Indians was to ``civilize'' native people, in part by making
them family farmers, thousands of Indians were rendered not
only landless but homeless. The fact that the United States
thought to impose a similar scheme on the native people of
Hawaii in an effort to ``rehabilitate'' Native Hawaiians by
returning them to their land is thus readily understandable in
the context of the prevailing Federal Indian policy in 1921.
By 1959, when the State of Hawaii 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 Indian tribes and their members and to
transfer many of those responsibilities to the several States.
A prime example of this Federal policy was the enactment of
Public Law No. 83-280,\60\ an Act which vested criminal
jurisdiction and certain aspects of civil jurisdiction over
Indian lands in certain States. Similarly, in 1959, the United
States transferred most of its responsibilities related to
administering the Hawaiian Homes Commission Act to the new
State of Hawaii and imposed a public trust upon the lands that
were ceded to the State for five purposes, one of which was the
betterment of the conditions for Native Hawaiians.
---------------------------------------------------------------------------
\60\67 Stat. 5884 (1953).
---------------------------------------------------------------------------
CONGRESS'S AUTHORITY TO ENACT REORGANIZATION LEGISLATION FOR THE NATIVE
HAWAIIANS
For more than two hundred years, Congress, the Executive
Branch, and the Supreme Court have recognized certain legal
rights and protections for America's indigenous peoples. The
United States' interactions with indigenous peoples have varied
from group to group. Indeed, since the founding of the United
States, Congress has exercised constitutional authority over
indigenous affairs and has undertaken enhanced responsibility
for America's indigenous peoples. This has been done in
recognition of the sovereignty possessed by the native groups,
which pre-existed the formation of the United States.
Congress's exercise of its constitutional authority is also
premised upon the status of the indigenous peoples as the
original inhabitants of this Nation who occupied and exercised
dominion and control over the lands which the United States
subsequently acquired.
Constitutional sources of Congressional authority to legislate in
respect to Native Groups
It is well-established that ``the Constitution grants
Congress broad general powers to legislate in respect to Indian
tribes, powers that [the Supreme Court has] consistently
described as `plenary and exclusive.'''\61\ As the Court
explained in United States v. Sandoval, ``in respect of
distinctly Indian communities 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, and not by the courts,'' so long as Congress does not
use this power to ``arbitrarily'' designate a community or body
of people an Indian tribe.\62\ The Supreme Court has upheld
Congress's exercise of this power even in the case of a tribe
that the Court assumed had become ``fully assimilated into the
political and social life of the State,'' concluding that ``the
fact that federal supervision over [the tribe] has not been
continuous'' did not ``destroy[] the federal power to deal with
them.''\63\
---------------------------------------------------------------------------
\61\United States v. Lara, 541 U.S. 193, 200 (2004).
\62\231 U.S. 28, 46 (1913).
\63\United States v. John, 437 U.S. 634, 652-53 (1978); see also
Winton v. Amos, 255 U.S. 373, 378 (1921) (The members of the same
recognized tribe at issue in John had ``adopted the dress, habits,
customs, and manner of living of the white citizens of the state. They
had no tribal or band organization or laws of their own, but were
subject to the laws of the state. They did not live upon any
reservation, nor did the government exercise supervision or control
over them.'').
---------------------------------------------------------------------------
The Supreme Court has historically located the sources of
Congress's Indian affairs powers in the Indian Commerce
Clause\64\ and the Treaty Clause.\65\ The Court has also
recognized that insofar as Indian affairs were traditionally an
aspect of military and foreign policy, ``Congress' legislative
authority would rest in part, not upon `affirmative grants of
the Constitution,' but upon the Constitution's adoption of
preconstitutional powers necessarily inherent in any Federal
Government, namely, powers that this Court has described as
`necessary concomitants of nationality.'''\66\
---------------------------------------------------------------------------
\64\U.S. Const. art. I, Sec. 8, cl. 3.
\65\Id. art. II, Sec. 2, cl. 2; see Lara, 541 U.S. at 200; see also
id. (``The central function of the Indian Commerce Clause, we have
said, is to provide Congress with plenary power to legislate in the
field of Indian affairs.'') (internal quotation marks omitted).
Although ``[t]he treaty power does not literally authorize Congress to
act legislatively, for it is an Article II power authorizing the
President, not Congress, `to make Treaties[,]' . . . treaties made
pursuant to that power can authorize Congress to deal with `matters'
with which otherwise `Congress could not deal.''' Id. at 201.
\66\Id.
---------------------------------------------------------------------------
In addition, the ``existence of federal power to regulate
and protect the Indians and their property'' is implicit in the
structure of the Constitution.\67\ ``In the exercise of the war
and treaty powers, the United States overcame the Indians and
took possession of their lands, sometimes by force, leaving
them . . . needing protection. . . . Of necessity the United
States assumed the duty of furnishing that protection, and with
it the authority to do all that was required to perform that
obligation.''\68\ Thus, ``[n]ot only does the Constitution
expressly authorize Congress to regulate commerce with the
Indian tribes, but long continued legislative and executive
usage and an unbroken current of judicial decisions have
attributed to the United States . . . the power and the duty of
exercising a fostering care and protection over all dependent
Indian communities.''\69\
---------------------------------------------------------------------------
\67\Board of County Comm'rs of Creek County v. Seber, 318 U.S. 705,
715 (1943).
\68\Id.
\69\United States v. Sandoval, 231 U.S. 28, 45-46 (1913); see
United States v. Kagama, 118 U.S. 375, 384-85 (1886) (``From [the
Indians'] very weakness[,] so largely due to the course of dealing of
the federal government with them and the treaties in which it has been
promised, there arises the duty of protection, and with it the power. .
. . 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; because it has never been
denied; and because it alone can enforce its laws on all the
tribes.'').
---------------------------------------------------------------------------
Although the aboriginal ``tribes,'' ``nations,'' or
``peoples,'' over which Congress exercised its Indian affairs
authority, were defined in part by common ancestry, the unique
constitutional significance of such entities derives from their
separate existence as ``independent political
communities.''\70\ Native peoples and groups were
``nations,''\71\ and the relationship between the United States
and the natives reflected a political settlement between
sovereigns. The Supreme Court has thus repeatedly made clear
that Indian tribes are the political and familial heirs to
``once-sovereign political communities,'' not ``racial
group[s].''\72\
---------------------------------------------------------------------------
\70\Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832).
\71\Id. at 559-60.
\72\United States v. Antelope, 430 U.S. 641, 646 (1972); see Fisher
v. District Ct. of Sixteenth Jud. District of Mont., 424 U.S. 382, 389
(1976); Morton v. Mancari, 417 U.S. 535, 553-54 (1974); see also
Oklahoma Tax Comm'n v. Sac & Fox Nation, 508 U.S. 114, 123 (1993);
United States v. Mazurie, 419 U.S. 544, 557 (1975).
---------------------------------------------------------------------------
Congress has frequently enacted legislation that provides
for the reorganization of Indian tribes, via an election
organized by the Secretary of the Interior and the recognition
of native sovereigns pursuant to its Indian affairs powers. For
example, the Indian Reorganization Act of 1934 provides that
``[a]ny Indian tribe shall have the right to organize for its
common welfare, and may adopt an appropriate constitution and
bylaws . . . which shall become effective when--(1) ratified by
a majority vote of the adult members of the tribe or tribes at
a special election authorized and called by the Secretary [of
the Interior] under such rules and regulations as the Secretary
may prescribe; and (2) approved by the Secretary. . . .''\73\
---------------------------------------------------------------------------
\73\25 U.S.C. Sec. 476(a).
---------------------------------------------------------------------------
Similarly, Congress has on numerous occasions enacted
specific statutes that ``restore'' Federal recognition of
previously ``terminated'' tribes. There are many tribal
restoration acts throughout Title 25 of the U.S. Code,
involving interim council elections set up and run by the
Secretary, with participation based on statutory criteria that
include lineal descent or required ancestry, as well as other
indicia of connection to the community. Some of these statutes
establish a process for nominating and electing members of an
interim council or body that has responsibility for functioning
as the acting tribal government and developing proposed
constitution and bylaws to be voted on by the members in an
election conducted by the Secretary.\74\ And courts have
referred approvingly to treaties or laws that promise to
provide for tribal self-government,\75\ as well as statutes
that prescribe in detail the structure and operation of tribal
governments.\76\
---------------------------------------------------------------------------
\74\See 25 U.S.C. 711
\75\See Ex Parte Crow Dog, 109 U.S. 556, 568 (1883) (discussing a
Federal pledge in a treaty to ``secure to'' a tribe ``an orderly
government, by appropriate legislation thereafter to be framed and
enacted'').
\76\See Fletcher v. United States, 116 F.3d 1315, 1327 (10th Cir.
1997) (discussing approvingly and invoking an Act in which ``Congress .
. . prescribed the form of tribal government for the Osage Tribe,''
including ``establish[ing] the offices of a principal chief, an
assistant principal chief, and an eight-member Osage tribal council,
and requir[ing] that elections be held every four years to fill those
offices'').
---------------------------------------------------------------------------
Native Hawaiians and the meaning of ``Indian Tribes''
Like the previous Congresses that have enacted legislation
for the benefit of Native Hawaiians, this Committee concludes
that the Native Hawaiians are a distinctly native community
that falls within the scope of Congress's power to legislate in
respect to ``Indian Tribes.''\77\ The term ``Indian'' was first
applied by Columbus to the native peoples of the New World
based on the mistaken belief that he had found a sea route to
India. The term has been understood ever since to refer to the
indigenous peoples who inhabited the New World before the
arrival of the Europeans.\78\ As the original, aboriginal
occupants of Hawaii before the arrival of the Europeans, the
Native Hawaiians fall within the scope of the term ``Indian''
as used in the Federal Constitution.
---------------------------------------------------------------------------
\77\U.S. Const. art. I, Sec. 8, cl. 3.
\78\See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 544 (1832)
(referring to Indians as ``those already in possession [of the land],
either as aboriginal occupants, or as occupants by virtue of a
discovery made before the memory of man''); Johnson v. M'Intosh, 21
U.S. (8 Wheat.) 543, 572-74 (1823) (referring to Indians as ``original
inhabitants'' or ``natives'' who occupied the New World before
discovery by ``the great nations of Europe'').
---------------------------------------------------------------------------
To the framers of the Constitution, an Indian tribe simply
meant a distinct group of indigenous people set apart by their
common circumstances.\79\ Because Native Hawaiians today have a
direct historic, cultural, and land-based link to the
indigenous people who inhabited and exercised sovereignty over
the Hawaiian Islands before the first European contact in 1778,
and because they are determined to preserve and to pass on to
future generations their native lands and their distinct
culture, the Native Hawaiian community falls squarely within
the scope of Congress's power to legislate in respect to
``Indian Tribes.''
---------------------------------------------------------------------------
\79\See also Worcester, 31 U.S. (6 Pet.) at 559 (equating Indian
tribe and Indian nation and defining ``nation'' as a ``people distinct
from others''); id. at 583 (Indians are ``a separate and distinct
people'').
---------------------------------------------------------------------------
Indeed, as the 1993 Apology Resolution and other recent
Federal statutes extending educational and health benefits to
Native Hawaiians make clear, Congress has found that: (1)
Native Hawaiians are ``a distinct and unique indigenous people
with a historical continuity to the original inhabitants of the
Hawaiian archipelago'';\80\ (2) Native Hawaiians exercised
sovereignty over the Hawaiian Islands;\81\ (3) the overthrow of
the Kingdom of Hawaii was ``illegal'' and deprived Native
Hawaiians of their right to ``self-determination'';\82\ (4) the
government installed after the overthrow ceded 1.8 million
acres of land to the United States ``without the consent of or
compensation to the Native Hawaiian people of Hawaii or their
sovereign government'';\83\ (5) ``the indigenous Hawaiian
people never directly relinquished their claims to their
inherent sovereignty as a people or over their national lands
to the United States'';\84\ and (6) ``the Native Hawaiian
people are determined to preserve, develop and transmit to
future generations their ancestral territory, and their
cultural identity in accordance with their own spiritual and
traditional beliefs, customs, practices, language, and social
institutions.''\85\
---------------------------------------------------------------------------
\80\42 U.S.C. Sec. 11701(1); 20 U.S.C. Sec. 7512(1).
\81\20 U.S.C. Sec. 80q-14(11).
\82\107 Stat. 1510, 1513 (1993).
\83\Id. at 1512.
\84\Id.
\85\Id. at 1512-13.
---------------------------------------------------------------------------
Those findings demonstrate that indigenous Hawaiians, like
numerous tribes in the continental United States, share
historical and current bonds within their community. Also like
tribes in the continental United States, Native Hawaiians,
pursuant to Acts of Congress, have substantial lands set aside
for their benefit: 200,000 acres of Homes Commission Act land
on which there are thousands of leases to Native Hawaiians that
furnish homes to tens of thousands of Hawaiians, and an
interest in the income generated by 1.2 million acres of public
trust lands under the Admission Act.
The fact that the indigenous Hawaiian community does not
presently have an operating tribal government recognized by the
Department of the Interior does not remove that community from
the scope of Congress's Indian affairs power. The Constitution
does not limit Congress's Indian affairs power to groups with a
particular government structure. ``[S]ome bands of Indians, for
example, had little or no tribal organization while others . .
. were highly organized.''\86\ For example, in United States v.
John, the Court upheld Congress's power to provide for a group
of Indians that did not have a Federally recognized tribal
government, even though Federal supervision had lapsed and a
measure of assimilation had occurred.\87\ Nor does the
Constitution limit Congress's power to groups that continue to
exercise all aspects of sovereignty. European ``discovery'' and
the establishment of the United States necessarily diminished
certain aspects of Indian sovereignty.\88\ Thus, under the
Constitution, ``Federal regulation of Indian tribes . . . is
governance of once-sovereign political communities.''\89\
---------------------------------------------------------------------------
\86\Washington v. Washington State Commercial Passenger Fishing
Vessel Ass'n, 443 U.S. 658, 664 (1979) (footnote omitted).
\87\437 U.S. 634 (1978).
\88\Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 574 (1823);
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 45 (1831).
\89\United States v. Antelope, 430 U.S. 641, 646 (1972).
---------------------------------------------------------------------------
As noted above, the United States' authority over Indian
affairs does not emanate simply from the Commerce Clause's
reference to ``Indian Tribes.'' Rather, the Constitution
implicitly gives Congress power to manage Indian affairs more
generally.\90\ That power is not limited to native groups that
exhibit formal governmental structures of modern sovereigns.
The sovereignty of an indigenous people may be expressed
through informal structures, as well as through a formal
government. And the loss of a formal government does not
preclude future expression of sovereignty through some formal
governmental structure. In the case of Native Hawaiians, a
variety of Native Hawaiian organizations have continued to be
active in a broad range of native political, cultural,
religious, legal, and land-related matters, and furnish
vehicles for the expression of self-determination over
important aspects of Hawaiian affairs, and form an active
``political'' community.\91\
---------------------------------------------------------------------------
\90\Board of County Comm'rs of Creek County v. Seber, 318 U.S. 705,
715 (1943); United States v. Sandoval, 231 U.S. 28, 45-46 (1913);
United States v. Kagama, 118 U.S. 375, 383-84 (1886).
\91\Cf. 25 C.F.R. 83.7(c) (discussing political and comparable
activity as a criterion for Interior Department acknowledgment).
---------------------------------------------------------------------------
Also instructive is Federal legislation concerning Alaska
Natives, which reflects Congress's intent to exercise its
constitutional power and responsibility regarding all the
Native American groups within the United States. In January
1932, Representative Howard, Chairman of the House Indian
Affairs Committee, wrote to Secretary of the Interior Wilbur
seeking an opinion on the legal status of Alaska Natives. In
response, Interior Solicitor Finney issued a comprehensive
opinion, which Secretary Wilbur forwarded to Chairman Howard in
March 1932. Finney concluded his opinion by stating: ``[I]t is
clear that no distinction has been made between the Indians and
other natives of Alaska so far as the laws and relations of the
United States are concerned whether the Eskimos and other
natives are of Indian origin or not[,] as they are all wards of
the Nation, and their status is in material respects similar to
that of the Indians of the United States.''\92\
---------------------------------------------------------------------------
\92\53 I.D. 593, 605, 1 Op. Sol. On Indian Affairs 303, 310 (1932).
---------------------------------------------------------------------------
In 1934, when Congress passed the Indian Reorganization
Act, the landmark legislation intended to revitalize tribes'
government-to-government relationship with the United States,
it defined ``Indian'' to include all aboriginal people of
Alaska, even though Congress knew that Alaska's aboriginal
population included Eskimos and Aleuts, two distinct cultural
and ethnic groups, as well as Indians similar to those in the
contiguous 48 States.\93\
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\93\25 U.S.C. Sec. 479. In 1936, Congress amended the Indian
Reorganization Act to allow qualifying Alaska Native villages to
reorganize under that Act. See 25 U.S.C. Sec. 473a.
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Like Native Hawaiians, the Eskimo peoples are
linguistically, culturally, and ancestrally distinct from other
American ``Indians.'' Yet Native Alaskan villages are Federally
recognized tribal entities within Congress's Indian affairs
authority.\94\ Modern scholars typically do not use the word
``Indian'' to describe Eskimos or the word ``tribe'' to
describe their nomadic family groups and villages. But the
Constitution's Framers would not have recognized these kinds of
distinctions. To them, ``Indians'' were many peoples, with
distinct languages, cultures, and sociopolitical organizations;
but for all their distinct cultures and governments, they were
all ``Indians,'' because they were aboriginal inhabitants of
the ``New World.'' Because Eskimos--like Native Hawaiians--were
aboriginal peoples, they too would therefore have been
considered ``Indians.''\95\ Courts have supported this
construction by recognizing ``that the term `Indians' includes
all native people in the United States.''\96\
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\94\In 1993, the Department of the Interior included Alaska Native
villages on the revised list of Federally recognized tribes. Indian
Entities Recognized and Eligible To Receive Services From the United
States Bureau of Indian Affairs, 58 Fed. Reg. 54,364 (Oct. 21, 1993).
\95\See S. Rep. 107-66, at 35 nn.43-44 (2001).
\96\Jon M. Van Dyke, The Political Status of Native Hawaiian
People, 17 Yale L. & Pol'y Rev. 95, 146 (1998) (citing Alaska Pac.
Fisheries v. United States, 248 U.S. 78 (1918); Native Village of
Tyonek v. Puckett, 957 F.2d 631 (9th Cir. 1992); Alaska Chapter, Assoc.
Gen. Contractors of Am. v. Pierce, 694 F.2d 1162 (9th Cir. 1982); Pence
v. Kleppe, 529 F.2d 135 (9th Cir. 1976); Alaska v. Annette Island
Packing Co., 289 F. 671 (9th Cir. 1923); Cape Fox Corp. v. United
States, 4 Cl. Ct. 223 (1983); Aguilar v. United States, 474 F. Supp.
840 (D. Alaska 1979); Eric v. HUD, 464 F. Supp. 44 (D. Alaska 1978);
Naliielua v. State of Hawaii, 795 F. Supp. 1009 (D. Haw. 1990); Ahuna
v. Department of Hawaiian Home Lands, 640 P.2d 1161, 1168-69 (Haw.
1982)).
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Although these general principles governing Congress's
power over Indian affairs are well established in Supreme Court
decisions, the Court has never specifically considered the
application of those principles to Native Hawaiians. Most
recently, in Rice v. Cayetano,\97\ the Court called that
question ``a matter of some dispute,'' which it did not need to
decide in that case.\98\ Indeed, the Court specifically
reserved a number of other important questions in that case,
such as the extent to which Congress had already exercised or
delegated such powers.\99\ The Court made clear that its
opinion ``stay[ed] far off that difficult terrain.''\100\ Thus,
although the Court struck down a Hawaii law limiting
eligibility to vote in elections for trustee of the State
Office of Hawaiian Affairs (OHA), it did so because OHA ``is a
state agency'' and the elections were ``elections of the State,
not of a separate quasi sovereign.''\101\ The elections
therefore had to be open to all citizens of the State of Hawaii
who were otherwise eligible to vote in statewide
elections.\102\ By resolving the case on that ground, the Court
did not need to reach any question about Congress's authority
to treat Native Hawaiians the same way it treats Indian tribes
on the continental United States. Nor has the Court returned to
the issue since.
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\97\528 U.S. 495 (2000).
\98\Id. at 518.
\99\See id.
\100\Id. at 519.
\101\Id. at 520, 522.
\102\The Court explained that ``[i]f a non-Indian lacks a right to
vote in tribal elections, it is for the reason that such elections are
the internal affair of a quasi sovereign;'' the Court did not need to
rule on the applicability of that principle to Native Hawaiians,
because it concluded that the election was conducted by the State of
Hawaii rather than by any such recognized quasi sovereign entity. Id.
at 520.
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NEED FOR LEGISLATION
The primary goal of S. 1011 is to establish a process for
the reorganization of a Native Hawaiian government and to
reaffirm the special political and legal relationship between
the United States and the Native Hawaiian governing entity for
purposes of carrying on a government-to-government
relationship. Congress has consistently recognized Native
Hawaiians as among the native peoples of the United States on
whose behalf it may exercise its powers under the Indian
Commerce Clause and other relevant provisions of the
Constitution. But Congress has not yet acted to provide a
process for reorganizing a Native Hawaiian governing entity.
That inaction has placed Native Hawaiians at a unique
disadvantage. Of the three major groups of Native Americans in
the United States--American Indians, Alaska Natives, and Native
Hawaiians--only Native Hawaiians currently lack the benefits of
democratic self-government. In earlier eras, similar
deprivations wreaked havoc on countless American Indians and
Alaska Natives. As President Obama recently stated, ``History
has shown that failure to include the voices of tribal
officials in formulating policy affecting their communities has
all too often led to undesirable and, at times, devastating and
tragic results.''\103\
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\103\Memorandum of November 5, 2009--Tribal Consultation, 74 Fed.
Reg. 57,881, 57,881 (Nov. 9, 2009).
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For nearly a half century now, Congress has pursued a
strong policy of Indian self-determination and self-government,
with the ``overriding goal of encouraging tribal self-
sufficiency and economic development.''\104\ The results of
that policy have been striking. As the co-director of the
Harvard Project on American Indian Economic Development
recently wrote, ``the evidence is overwhelming that political
self-rule is the only policy'' that has succeeded in overcoming
Native Americans' ``social, cultural, and economic
destruction.''\105\ For Native Americans, economic development
``is first and foremost a political problem. At the heart of it
lie sovereignty and the governing institutions through which
sovereignty can be effectively exercised.''\106\ By
establishing a process that would lead to the reorganization of
a sovereign Native Hawaiian government, S. 1011 will finally
put Native Hawaiians on a par with other Native Americans,
giving them equal access to the benefits of accountable, local,
democratic self-rule.
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\104\California v. Cabazon Band of Mission Indians, 480 U.S. 202,
216 (1987) (citing New Mexico v. Mescalero Apache Tribe, 462 U.S. 324,
334-35 (1983); Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987); White
Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980)) (internal
quotation marks omitted).
\105\Joseph P. Kalt, Constitutional Rule and the Effective
Governance of Native Nations, in American Indian Constitutional Reform
and the Rebuilding of Native Nations 184 (Eric D. Lemont ed., 2006).
\106\Stephen Cornell & Joseph P. Kalt, Sovereignty and Nation
Building: The Development Challenge in Indian Country Today, 22 Amer.
Indian Culture & Res. J. 187, 212 (1998); Charles Wilkinson, Blood
Struggle: The Rise of Modern Indian Nations 271 (2005) (``Experience in
Indian economic development . . . has shown that strong and effective
tribal governments, anchored in tribal culture, are critical for
economic progress.'').
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The Committee recognizes that there is a Federal
Acknowledgment Process defined by the Department of the
Interior's regulations in 25 CFR Part 83. However, these
regulations exclude Native Hawaiians. Thus, legislation is the
only mechanism available for Congress to recognize Native
Hawaiians at this time.
LEGISLATIVE HISTORY
S. 1011 was introduced on May 7, 2009, by Senator Akaka for
himself and Senator Inouye, and referred to the Committee on
Indian Affairs. Senators Dorgan, Begich, and Murkowski became
cosponsors on August 5, 2009. A hearing was held before the
Committee on Indian Affairs on August 6, 2009. On December 17,
2009, the bill was ordered by the Committee to be favorably
reported with an amendment in the nature of a substitute. Other
versions of the bill, S. 381 and S. 708, were introduced but
not considered by the Committee.
A House companion measure to S. 1011, H.R. 2314, was
introduced on May 7, 2009, by Representative Abercrombie for
himself and Representative Hirono, and referred to the
Committee on Natural Resources. The Natural Resources Committee
met to consider the bill on June 11, 2009. On December 16,
2009, the bill was favorably reported without amendment to the
House of Representatives by the Yeas and Nays 26-13. On
February 23, 2010, the House of Representatives considered H.R.
2314 and passed by the Yeas and Nays 245-164 with an amendment
in the nature of a substitute offered by Representative
Abercrombie. Other versions of the bill, H.R. 862 and H.R.
1711, were introduced but not considered by the Natural
Resources Committee.
SUMMARY OF THE AMENDMENT IN THE NATURE OF A SUBSTITUTE
A number of amendments were made to S. 1011, all of which
were included in a substitute amendment accepted by the
Committee on December 17, 2009. These changes were made to
address concerns with the legislation, a number of which were
raised by the Attorney General of the State of Hawaii, to
further refine the process for reorganization, and to clarify
definitions, among other issues. The Committee expects the
language will continue to be modified to bring clarity to some
issues.
Section 1. Short title
Section 1 was not amended.
Section 2. Findings
The findings of the underlying bill were amended to
reaffirm the authority of Congress to legislate on behalf of
Native Hawaiians as a distinctly native community. Congress
exercised this authority in enacting the Hawaiian Homes
Commission Act (HHCA) to set aside land for Native Hawaiians.
The changes in the substitute amendment reflect the Native
Hawaiian people's active commitment to maintaining their native
traditions, their connection to the indigenous people who
exercised sovereignty over the Hawaiian Islands, and the
courts' recognition of their ability to engage in certain
customary practices on public lands. Because the Native
Hawaiian people have steadfastly maintained their native
traditions and customary practices since the overthrow of the
Kingdom of Hawaii in 1893, there is continuity between the
native citizens of the Kingdom of Hawaii and their successors,
the Native Hawaiian people today.
Section 3. Definitions
Section 3, was amended to redefine those eligible to
participate in the reorganization of the Native Hawaiian
governing entity. The definitions of ``adult member'' and
``Native Hawaiian'' were struck and incorporated into the new
definition of ``qualified Native Hawaiian constituent''.
``Native Hawaiian programs or services'' was also struck from
the section on definitions.
The term ``Native Hawaiian membership organization'' was
added to identify organizations through which Native Hawaiians
have sought to preserve their culture, native traditions, and
self-governance. These organizations are an important, though
not the exclusive, means through which Native Hawaiians have
succeeded in maintaining their native traditions and culture,
and in giving expression to their rights to self-determination
and self-governance. Indeed, Congress has relied on such
organizations to function as official representatives of the
Native Hawaiian community in other Federal laws. In the Native
American Graves Protection and Repatriation Act (NAGPRA), for
example, Native Hawaiian organizations function as
representatives of the Native Hawaiian community with respect
to the treatment and protection of Native Hawaiian remains and
funerary objects, just as Federally recognized Indian tribes
represent their communities with respect to Indian remains and
objects.\107\
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\107\See 25 U.S.C. Sec. Sec. 3001-3013.
---------------------------------------------------------------------------
The definition of ``qualified Native Hawaiian constituent''
was added to require not only descent from the aboriginal,
indigenous, native inhabitants of Hawaii, but also maintenance
of ``a significant cultural, social, or civic connection to the
Native Hawaiian community.''
An individual must demonstrate this connection by
satisfying at least two of ten listed criteria, which include,
among others, residence in Hawaii, residence on Hawaiian Homes
Commission Act lands (or status as the child or grandchild of
such a resident), eligibility to be a beneficiary of Hawaiian
Homes Commission Act programs, status as the child or
grandchild of a person with such eligibility, residence or
ownership interest in ``kuleana land''\108\ that is owned in
whole or in part by a verified lineal descendant of the person
who received original title to such land (or status as a child
or grandchild of a person with such a residence or ownership
interest), attendance for at least one school year at a school
or program taught through the medium of the Hawaiian language
or at a school founded and operated primarily or exclusively
for the benefit of Native Hawaiians (or status as the child or
grandchild of a person who attended such a program for at least
one school year), membership in a Native Hawaiian
organization,\109\ or recognition as Native Hawaiian and as the
son or daughter of a person recognized as Native Hawaiian by
certain other members of the Native Hawaiian community.\110\
The inclusion of these criteria will provide that the persons
who participate in the reorganization of the Native Hawaiian
governing entity are persons with Native Hawaiian ancestry who
have established ties to the Native Hawaiian community.
---------------------------------------------------------------------------
\108\``Kuleana land'' is defined as ``lands granted to native
tenants pursuant to Haw. L. 1850, p. 202, entitled `An Act Confirming
Certain Resolutions of the King and Privy Council Passed on the 21st
day of December, A.D. 1849, Granting to the Common People Allodial
Titles for Their Own Lands and House Lots, and Certain Other
Privileges', as amended by Haw. L. 1851, p. 98, entitled `An Act to
Amend An Act Granting to the Common People Allodial Titles for Their
Own Lands and House Lots, and Certain Other Privileges' and as further
amended by any subsequent legislation.'' Kuleana lands are parcels of
land granted to native Hawaiian tenant farmers between 1850 and 1855.
From 1845 to 1848, in what is known as the Great Mahele, King
Kamehameha III divided up land among the Kingdom, high-ranking chiefs,
and the territorial government, subject to the rights of the native
tenants. Law of June 7, 1848, reprinted in 2 Rev. Laws Haw. 2152, 2174
(1925); Mauka to Makai Report, supra note 24. The Act of Aug. 6, 1850
(the Kuleana Act) provided a process by which native tenants who had
occupied and improved the land could apply to the Land Commission for a
royal patent and obtain fee title to those parcels of land. Id. at 24.
Less than 30,000 acres of land were awarded under the Kuleana Act.
Cohen's Handbook, supra note 9, Sec. 4.07[4][b], at 367 (citing Jon
Chinen, The Great Mahele: Hawaii's Land Division 31 (1958)).
\109\Any person who has been a member since September 30, 2009, of
two or more Native Hawaiian membership organizations would satisfy the
requirement of maintaining a significant cultural, social, or civic
connection to the Native Hawaiian community.
\110\To execute a sworn affidavit stating that a person is, and his
or her mother or father is or was, regarded as Native Hawaiian by the
Native Hawaiian community, the affiant must himself or herself be a
``qualified Native Hawaiian constituent'' and also must be certified by
the Commission as ``possessing expertise in the social, cultural, and
civic affairs of the Native Hawaiian community.'' The Commission should
construe the latter phrase broadly, to include elders or kupuna; heads
of extended families; cultural practitioners; leaders and long-standing
members of Native Hawaiian political, civic, cultural, artistic,
literary, spiritual, or social organizations; teachers or scholars of
Native Hawaiian studies, language, or history; and any other qualified
Native Hawaiian constituent who understands, has daily interactions
with, and is involved with the social, cultural, or civic life of the
Native Hawaiian community.
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There is precedent for using associative factors such as
kinship, land, and participation in native organizations to
determine tribal membership.\111\ The last criterion,
recognition as Native Hawaiian by the Native Hawaiian
community, is also akin to criteria used to define membership
in a native community in other contexts.\112\ The definition of
``qualified Native Hawaiian constituent'' will ensure that the
persons who participate in the reorganization of the governing
entity demonstrate a significant cultural, social, or civic
connection to the Native Hawaiian community and further ensures
that the Native Hawaiian governing entity will represent a
distinctly Native American community.\113\
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\111\See, e.g., 25 CFR Sec. 83.7(b)(1)(vii), (2)(iv) (including
``language'' and ``kinship organization[s]'' among the criteria the
Department of the Interior considers in determining whether petitioning
tribes can establish that they are a distinct community). In its tribal
acknowledgment process, the Department of the Interior has repeatedly
relied on participation in community organizations as an important
indicator of the existence of a distinct community. Activities that the
Department has cited in support of the existence of a community include
churches, organizations devoted to management of group cemeteries, the
existence of organized social functions or collective economic
activity, and organized participation in political activities and
debate. Branch of Acknowledgment & Research, U.S. Dep't of the
Interior, Acknowledgment Precedent Manual 26-32 (Draft, Mar. 1, 2002)
[hereinafter Acknowledgment Precedent Manual]. For example, in
concluding that it was appropriate to acknowledge the Jena Band of
Choctaw Indians as a sovereign tribe, the Department cited, among other
considerations, the Band's collective maintenance of a cemetery and
associated traditional practices, and the existence of a tribal
organization that ``conducts Choctaw language and history classes at
the tribal center after school hours and during the summer.'' Proposed
Finding for Federal Acknowledgment of the Jena Band of Choctaw Indians,
59 Fed. Reg. 54,496 (Oct. 31, 1994); see also Final Determination for
Federal Acknowledgment of the Jena Band of Choctaw Indians, 60 Fed.
Reg. 28,480 (May 31, 1995) (final acknowledgment). Likewise, the
ability of leaders to organize a community to address a particular
issue has been cited as evidence of the existence of internal political
organization, another criterion for acknowledgment. For example, the
Acknowledgment Precedent Manual cites the ability of a Narragansett
leader to organize opposition to the draining of a cedar swamp as
evidence supporting acknowledgment of that group. Acknowledgment
Precedent Manual, supra, at 40.
\112\See, e.g., Alaska Native Claims Settlement Act, 43 U.S.C.
Sec. 1602(b) (ANCSA).
\113\See United States v. Sandoval, 231 U.S. 28, 46 (1913)
(referring to ``distinctly Indian communities''); see also United
States v. Chavez, 290 U.S. 357, 363 (1933) (same); United States v.
Candelaria, 271 U.S. 432, 439 (1926) (same).
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Section 4. United States policy and purpose
Section 4 was amended to further enumerate portions of the
Constitution from which Congress derives its authority to deal
with Native Hawaiians.
The purpose of the Act is to provide a process for the
reorganization of a single Native Hawaiian governing entity and
the reaffirmation of the special political and legal
relationship between the United States and that Native Hawaiian
governing entity for purposes of continuing a government-to-
government relationship. In acting to promote Native Hawaiian
autonomy and self-government, Congress is acting in accord with
the United States' policy over the last several decades toward
Indian tribes and Native Americans generally.\114\
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\114\See, e.g., Indian Self-Determination and Education Assistance
Act of 1975, 25 U.S.C. Sec. 450a(a) (recognizing the United States'
obligation to advance Indian ``self-determination by assuring maximum
Indian participation in the direction of . . . Federal services to
Indian communities so as to render such services more responsive to the
needs and desires of those communities''); Indian Financing Act of
1974, 25 U.S.C. Sec. 1451 (expressing Congress's policy ``to help
develop and utilize Indian resources . . . to a point where the Indians
will fully exercise responsibility for the utilization and management
of their own resources''); see also Exec. Order No. 13,175, 59 Fed.
Reg. 22,951 (Nov. 9, 2000) (``The United States recognizes the right of
Indian tribes to self-government and supports tribal sovereignty and
self-determination.'').
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Section 5. United States Office for Native Hawaiian Relations
Section 5 was amended to require timely notice and
consultation between the Native Hawaiian governing entity and
the United States Office for Native Hawaiian Relations before
beginning any action that may affect Native Hawaiian resources,
rights, or lands. This section also contained some technical
amendments.
Section 6. Interagency Coordinating Group
Section 6 was amended to add the White House Office of
Intergovernmental Affairs as a co-leader of the Interagency
Coordinating Group.
The entities established in sections 5 and 6 provide advice
and consultation during the formation of the Native Hawaiian
governing entity and after its recognition by the United
States. The nature and form of the consultation between these
entities is expected to parallel the consultation process for
Indian tribes, which is guided by the requirements of Executive
Order 13175 and by the President's November 5, 2009 memorandum
on the implementation of that Order. Executive Order 13175
requires that Federal agencies have in place a process to allow
meaningful input from tribes in the development of regulations
and policies that have significant implications for tribes. The
Committee anticipates that the consultation envisioned by
sections 5 and 6 will proceed in a similar manner with regard
to the Native Hawaiian governing entity.
Section 7. Department of Justice representative
Section 7 is a new section which requires a Department of
Justice official to assist the Office for Native Hawaiian
Relations in the implementation and protection of the rights of
Native Hawaiians and the Native Hawaiian governing entity. The
Department of Justice already has an office that performs a
similar function with respect to the Department's relationship
with Indian tribes, the Office of Tribal Justice. The Committee
anticipates that the official designated under this section
will carry out his or her functions in a similar manner.
Section 8. Process for reorganization and federal recognition
All portions of section 8 were amended to reflect the
definition changes in section 3. Section 8 was originally
section 7 in the introduced version.
The underlying bill establishes a Commission to prepare and
maintain a roll of the ``qualified Native Hawaiian
constituents'' who elect to participate in the reorganization
of a single Native Hawaiian governing entity. In section
8(b)(2), the section defining the membership of the Commission,
the substitute amendment allows for traditional cultural
experience to be considered in looking at candidates for
appointment to the Commission.
Section 8(c)(1), entitled ``Roll'', was amended to allow a
presumption of meeting the lineal descent requirement for an
individual presenting evidence that he or she satisfies the
definition in Section 2 of Public Law 103-150, the Apology
Resolution. It was also amended to allow an individual's lineal
ancestors on the 1890 census by the Kingdom of Hawaii shall to
be considered reliable proof of lineal descent from the
aboriginal, indigenous, native people who resided in the
islands that now comprise the State of Hawaii on or before
January 1, 1893. The substitute amendment further adds a
provision to allow elderly Native Hawaiians and others lacking
birth certificates or other documentation to establish lineal
descent by sworn affidavits from two or more qualified Native
Hawaiian constituents.
This subsection was further amended to establish a process
to ensure authenticity of submitted documents and inform an
individual whether they have been deemed a qualified Native
Hawaiian constituent and of their right to appeal if they were
not. A provision outlining the Secretary's failure to act
regarding publication of the roll was struck in the substitute
amendment. The notice of certification of the roll will be
published in the Federal Register by the Commission, regardless
of pending appeals. Additional amendments require the
Secretary, in consultation with the Commission, to establish an
Administrative appeals process. The Commission must provide a
copy of the roll and any updated rolls to the Council.
Section 8(c)(2), renamed ``Organization of Council,'' was
amended to require the Commission, in consultation with the
Secretary, to hold a minimum of three meetings of at least two
working days of the qualified Native Hawaiian constituents
listed on the roll to develop criteria for candidates,
determine the structure of the Council, including the number of
Council members, and to elect Council members from the
individuals listed on the roll.
The section was further amended to require the Council to
perform certain duties as opposed to simply permitting the
Council to perform such duties. These duties include
representing those listed on the roll, conducting a referendum
of those individuals as to the governing documents of the
Native Hawaiian governing entity, developing proposed organic
documents based on that referendum, and publishing notice of
the availability of such documents. The Council may ask the
Secretary to ensure that draft organic governing documents
comply with this Act and Federal law.
Additional subsections were added to this section to
require the Council, with assistance of the Secretary, to hold
elections for the purpose of ratifying the proposed organic
government documents not sooner than 180 days after the
documents are drafted and distributed and 60 days after
publishing notice of an election.
Upon certification of the organic governing documents by
the Secretary, the Council, with the assistance of the
Secretary, is now required to hold elections of the officers of
the Native Hawaiian governing entity. In the introduced
version, the Council was merely permitted to hold these
elections. In addition, the Secretary must, within 180 days of
the Council's submission of the organic governing documents,
which may be extended an additional 90 days if the Secretary
deems necessary, certify or decline to certify that the
documents establish membership criteria for the Native Hawaiian
governing entity, were adopted by a majority of those listed on
the roll who voted in the election, and provide for the
exercise of inherent and other appropriate governmental
authorities by the Native Hawaiian governing entity. The
certifications will be deemed to have been made if the
Secretary does not act within 180 days after the date of the
Council's submission of the organic governing documents to the
Secretary. The introduced version of the bill gave the
Secretary 90 days.
Additional subsections were added by the substitute
amendment to require the Council to provide a copy of the roll
to the governing body of the Native Hawaiian governing entity
and to terminate the Council after the officers of the
governing body are elected and installed.
The final subsection of section 8 was amended to clearly
state that the special political and legal relationship between
the United States and the Native Hawaiian people is reaffirmed
and Federal recognition is extended to the Native Hawaiian
governing entity as the representative sovereign body of the
Native Hawaiian people. This occurs only after approval of the
organic governing documents by the Secretary and installation
of the officers of the governing body except where expressly
limited. The Committee expects the Native Hawaiian governing
entity to have the same aspects of sovereignty as other native
groups and Indian tribes that have received Federal
recognition.
Congress has a long history of enacting such legislation
under its Indian affairs power. S. 1011's process for
recognizing a Native Hawaiian governing entity is analogous to
the process established by prior tribal-reorganization
legislation, and is also analagous to the process by which the
United States recognizes Indian tribes. For example, S. 1011
would establish a roll of Native Hawaiian constituents that
would define those individuals who are qualified to participate
in reorganizing the Native Hawaiian governing entity based on
lineal descent and continued connection to the Native Hawaiian
community and Native Hawaiian lands.
The Commission is expected to be an expert body, with
particular expertise in Native Hawaiian genealogy and culture.
The Committee recognizes that the task of compiling a roll of
qualified Native Hawaiian constituents is likely to be complex
and may require technical decisions as to which individuals
have a sufficient connection to the Native Hawaiian community,
based on the criteria set forth in this legislation. The
Committee expects that courts and government agencies will
accord significant deference to the Commission's expert
decisions and will allow the Commission to make eligibility
decisions in the first instance. There is a provision in
Section 8(c) for an administrative appeal for any person whose
name is excluded from the roll.
Moreover, the Committee emphasizes that the Commission is
expected to complete a roll of qualified Native Hawaiian
constituents without delay, to allow the organizing process to
proceed on schedule. The Committee anticipates that the
Commission will establish appropriate deadlines, rules of
procedure, and other requirements to allow the timetables set
forth in this legislation to be met while giving due
consideration to the claims of those seeking to be included on
the roll. The sole purpose of the roll established by the
Commission is to compile a list of those qualified Native
Hawaiian constituents who can take part in the initial
reorganization of a Native Hawaiian government. Prior tribal-
restoration acts have similarly relied on an initial roll in
determining eligibility to participate in tribal-reorganization
elections.\115\
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\115\See, e.g., 25 U.S.C. Sec. 711b(a), (b).
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The substitute amendment permits elderly Native Hawaiians
and other qualified Native Hawaiian constituents lacking birth
certificates or other documentation due to birth on Hawaiian
Home Lands or other similar circumstances to establish lineal
descent by sworn affidavits from two or more qualified Native
Hawaiian constituents. This provision was included to address
cases of hardship, and is not expected to be applied routinely.
The Committee anticipates that the Commission will establish
specific prerequisites allowing individuals to demonstrate that
they are unable to obtain a birth certificate.
In general, Section 8 calls for the Federal Government to
play a relatively minor role in setting the rules for the
election of officers of the Native Hawaiian governing entity.
In particular, while the Federally created Commission will call
an initial meeting for persons on the roll, it is these roll
members who will determine the criteria for candidates to serve
on the Council, determine the structure of the Council, and
elect its members. The Committee emphasizes the importance of
the deadlines established by this legislation. Barring unusual
circumstances, the existence of pending disputes as to the
inclusion of particular individuals on the roll should not be
allowed to delay the reorganization process set forth in this
section. The degree of Federal involvement contemplated by S.
1011 is thus consistent with the historical role Congress has
played in assisting Indian tribes and other native groups in
reorganizing politically.\116\
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\116\See id. Sec. 476(a) (noting that special elections for
ratifying tribal constitutions and bylaws may be ``authorized and
called by the Secretary [of the Interior] under such rules and
regulations as the Secretary may prescribe . . . .''); id.
Sec. Sec. 711a-711f.
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Section 9. Negotiations and claims
Section 9 was amended to clarify that in the interim period
between recognition of the Native Hawaiian governing entity and
any agreements between the three sovereigns, the Native
Hawaiian governing entity would, unless expressly limited,
exercise powers and authorities typically exercised by Indian
tribes and native groups recognized by the United States. This
section was further amended to specify that State of Hawaii
lands and surplus Federal lands would be part of the
negotiations among the three governments.
Section 9(b)(3) was amended to clarify that the Native
Hawaiian governing entity would be vested with the inherent
powers of a native government, modifiable only by agreement
among the three governments. Nothing in the Act, unless agreed
upon, preempts Federal or State authority over Native Hawaiians
or their property or authorizes the State to tax or regulate
the Native Hawaiian governing entity.
A subsection was added to reaffirm that once the Native
Hawaiian governing entity is extended federal recognition, it
retains the inherent authority to determine its own membership,
membership criteria, and whether to grant, deny, revoke, or
qualify membership without regard to the definitions in this
Act.
A subsection on ``Claims'' was amended to confirm and
clarify that nothing in this Act alters the obligations of the
United States or the State of Hawaii relating to events that
occurred prior to recognition of the Native Hawaiian governing
entity. It clarifies that nothing creates, enlarges, revives,
modifies, diminishes, extinguishes, waives, or otherwise alters
any claim or cause of action against the United States or its
officers or the State of Hawaii or its officers, or any defense
to any such claim or cause of action, or amends any Federal
statute except as expressly amended by this Act.
In general, Section 9 affirms the inherent powers and
privileges of the Native Hawaiian governing entity upon Federal
recognition. The specific demarcations of authority among the
State, the Native Hawaiian sovereign, and the United States are
most appropriately determined by agreement among those three
sovereigns, as provided for by Section 9(b). Recognition of the
Native Hawaiian sovereign is a necessary precondition to
negotiating such an agreement.
It is the Committee's expectation that the parties will
engage in these negotiations in good faith to resolve the
issues in a just manner, accounting for the unique history and
circumstances of the Native Hawaiian people. This should be
done without compromising the inherent authority of the Native
Hawaiian governing entity to exercise those powers, privileges,
and immunities typically exercised by governments representing
the native peoples of the United States. Historically, when
Congress has enacted legislation allowing for the
reorganization of native governments, it has recognized that
those governments are vested with inherent tribal authority
under existing Federal law.\117\
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\117\See Indian Reorganization Act of 1934, 25 U.S.C. Sec. 476(e)-
(h); Amendment to Indian Reorganization Act for Alaska (1936), 25
U.S.C. 473a.
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Although, the substitute amendment made improvements to
clarify the provisions of the bill, the Committee believes that
this section would benefit from further clarifying certain
limitations on the interim powers of the Native Hawaiian
governing entity during the period prior to the completion of
negotiations. Any such limitations would be intended to be
temporary, remaining in place until such time as the
negotiations are concluded and any necessary implementing
legislation is enacted. Limitations that may be placed on the
inherent powers of the Native Hawaiian governing entity during
the period of negotiations may include the following: that (1)
there will be no ``Indian country'' or territory akin to
``Indian country'' over which the governing entity may assert
governmental authority;\118\ (2) the United States will not
take land into trust for the Native Hawaiian government or its
members; (3) that while the Native Hawaiian government will be
able to exercise jurisdiction or authority over its own members
(membership being voluntary), it will lack any territory-based
jurisdiction or authority; (4) the Native Hawaiian governing
entity will not be able to exercise jurisdiction or authority
over nonmembers (or entities owned wholly or mostly by
nonmembers) without their express consent; (5) individual
Native Hawaiians will continue to be subject to the civil and
criminal jurisdiction of Federal and State courts; and (6) the
State can continue to regulate and tax individual Native
Hawaiians and their property. In the substitute amendment,
these points are for the most part not express, but may be
inferred from paragraphs (1) to (4) of Section 9(b). The
Committee believes that the Act could benefit from making these
points express.
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\118\``Indian country'' is a term codified by Federal statute. 18
U.S.C. Sec. 1151. Although section 1151 defines ``Indian country'' for
the purpose of delineating the scope of Federal criminal jurisdiction
over Indians, the Supreme Court has applied the definition to determine
the scope of tribal territorial jurisdiction, as well. Alaska v. Native
Village of Venetie Tribal Gov't, 522 U.S. 520, 527 (1998); DeCoteau v.
District County Ct. for the Tenth Jud. District, 420 U.S. 425, 427 n.2
(1975).
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Further, any such interim limitations are not intended to
express the will of Congress with respect to the inherent
powers and privileges of native self-government that may be
properly exercised by the Native Hawaiian governing entity
following the negotiations and the enactment of any
implementing legislation.
The inherent powers and privileges of self-government that
vest in the Native Hawaiian governing entity upon Federal
recognition include, but are not limited to, Native Hawaiians'
inherent right to autonomy in their internal affairs, and their
inherent right to self-determination and self-governance. This
inherent, internal power of self-government, includes, but is
not limited to, the power to operate under a form of government
of the Native Hawaiians' choosing, the power to define
conditions of membership,\119\ the authority to regulate
domestic relations of members,\120\ the power to provide
governmental programs and services to members, and sovereign
immunity.
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\119\See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978).
Membership in the Native Hawaiian governing entity will be voluntary,
paralleling the applicable rule for tribes. Accordingly, no person
could be involuntarily subject to the governing entity's inherent
powers and privileges.
\120\ See Fisher v. District Ct. of the Sixteenth Jud. District of
Mont., 424 U.S. 382, 387-89 (1976) (per curiam).
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During this initial period of negotiation between Federal
recognition and any implementing legislation, the substitute
amendment protects the authority and interests of the State of
Hawaii by providing that ``nothing in this Act shall preempt
Federal or State authority over Native Hawaiians or their
property under existing law.''
The final clause of Section 9(b)(3) is designed to
safeguard the governing entity's independence from State and
local taxation and regulation when it undertakes core
governmental functions. The scope of this protection, once
again, is not express, but may be inferred from Section
9(b)(1)-(4), as well as from Federal common law regarding the
authority of States to tax and regulate tribes in analogous
situations.\121\
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\121\Cf. John v. Baker, 982 P.2d 738 (Alaska 1999) (analyzing a
Federally recognized Native tribe's inherent sovereign powers outside
of Indian country), cert. denied, 528 U.S. 1182 (2000).
---------------------------------------------------------------------------
The Act would benefit from clarifying the scope of the
Native Hawaiian governing entity's immunity from State
regulation and taxation. Such a clarification could provide
that the State have the ability during the interim period to
regulate and tax the non-governmental activities and property
of the Native Hawaiian governing entity (and of entities owned
by the Native Hawaiian governing entity). Such a clarification
should continue, however, to prohibit the State from regulating
or taxing governmental, nonbusiness, noncommercial activities
undertaken by the Native Hawaiian governing entity (or by
entities wholly owned by the Native Hawaiian governing entity).
Such activities would include the provision of health care,
housing and public safety to members of the Native Hawaiian
governing entity, and activities that support those and similar
government functions. It is unlikely that the Native Hawaiian
governing entity's governmental, nonbusiness, noncommercial
activities would have much impact on anyone other than its own
Native Hawaiian members. So this potential clarification of the
State's power to tax and regulate the Native Hawaiian governing
entity during the interim period would be a narrow one and
would prevent the State from unduly interfering with Native
Hawaiians' inherent rights to autonomy in their internal
affairs, to self-determination, and to self-governance.
In addition, upon Federal recognition, the Native Hawaiian
governing entity would be entitled to sovereign immunity from
suit.\122\ The common-law sovereign immunity possessed by
tribes is a ``necessary corollary to Indian sovereignty and
self-governance.''\123\ Immunities have a range of functions,
including preventing ``distraction of officials from their
governmental duties, inhibition of discretionary action, and
deterrence of able people from public service.''\124\ In
upholding tribal sovereign immunity, courts have recognized
Congress's desire, expressed through legislation, to promote
the ``goal of Indian self-government, including its `overriding
goal' of encouraging tribal self-sufficiency and economic
development.''\125\ Accordingly, the Committee believes that
the Native Hawaiian sovereign should enjoy the same immunity
from lawsuits in Federal and State courts that sovereign Indian
tribes and native groups in the continental United States
enjoy.\126\
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\122\See Kiowa Tribe of Oklahoma v. Mfg. Techs, Inc., 523 U.S. 751,
764 (1997); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978).
Tribal sovereign immunity applies to activities either within or
outside Indian country. See Kiowa Tribe, 523 U.S. at 764; Runyon ex
rel. B.R. v. Ass'n of Village Council Presidents, 84 P.3d 437, 439 &
nn.3-4 (Alaska 2004).
\123\Three Affiliated Tribes of Fort Berthold Reservation v. Wold
Eng'g, 476 U.S. 877, 890 (1986) (citing Santa Clara Pueblo v. Martinez,
436 U.S. 49 (1978)).
\124\Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982).
\125\Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of
Okla., 498 U.S. 505, 510 (1991) (quoting California v. Cabazon Band of
Mission Indians, 480 U.S. 202, 216 (1987)).
\126\As is the case for Indian tribes generally, the Native
Hawaiian governing entity could waive its sovereign immunity (by
contract or by statute), provided that it does so clearly and
unequivocally; and the Native Hawaiian governing entity would not be
immune from any lawsuit brought by the United States in any Federal
court. Furthermore, real property owned in fee simple by the Native
Hawaiian governing entity would not be immune from any in rem action
filed by the State. See County of Yakima v. Confederated Tribes, 502
U.S. 251, 265 (1992); Keweenaw Bay Indian Cmty. v. Rising, 477 F.3d
881, 894-95 (6th Cir. 2007).
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Likewise, the Committee believes that officers and
employees of the Native Hawaiian governing entity should enjoy
the same common-law immunities as the officers and employees of
any Indian tribe. These immunities are similar to those enjoyed
by officers and employees of State governments. As with tribal
officers, officers of the Native Hawaiian governing entity
might be sued for declaratory or injunctive relief under
principles akin to the doctrine of Ex parte Young.\127\ As is
also the case with Indian tribal officers, in some
circumstances an official of the Native Hawaiian sovereign who
acts outside the scope of his or her authority might be liable
to a suit for money damages. For example, the Committee
believes that a Native Hawaiian legislator could not be sued
for libel based on statements made in the course of
deliberations by the sovereign's legislative body, as the
immunity of the Native Hawaiian sovereign would encompass such
conduct. But if an official of the Native Hawaiian governing
entity were to defraud a State agency for personal profit in
violation of State law, he or she would not have individual
immunity for such conduct.
---------------------------------------------------------------------------
\127\Ex parte Young, 209 U.S. 123 (1908).
---------------------------------------------------------------------------
Absent sovereign immunity and protection of the core
governmental functions of the Native Hawaiian governing entity
from State taxation and regulation, the State could wield vast
power against the governing entity. That imbalance would give
the State little incentive to negotiate for a fair, long-term
allocation of powers, authorities, and immunities among the
three sovereigns.
At some point after the United States' initial recognition
of the newly reorganized Native Hawaiian governing entity,
negotiations among the three sovereigns--the United States, the
State of Hawaii, and the Native Hawaiian governing entity--
could alter many of the above-discussed ground rules that are
implicit in section 9(b) of the substitute amendment. For
example, if the three sovereigns eventually agreed to the
creation of Indian country within the State of Hawaii, and
legislation was enacted to implement that agreement, it is
possible that the Native Hawaiian governing entity could then
exercise certain limited types of authority or jurisdiction
over nonmembers.
Once the Native Hawaiian governing entity is reorganized,
the United States will recognize and affirm the entity's
inherent power and authority (akin to the inherent power and
authority of any Indian tribe) to determine its own membership
criteria, to determine its own membership, and to grant, deny,
revoke, or qualify membership without regard to whether any
person was or was not deemed to be a ``qualified Native
Hawaiian constituent'' under this Act. Membership criteria set
forth in the Native Hawaiian governing entity's organic
governing documents should provide that membership is voluntary
and can be relinquished, as is typically the case with Indian
tribes.
As noted in section 9(c), this legislation does not provide
the basis for the Native Hawaiian governing entity or other
Native Hawaiian groups to relitigate claims that have already
been resolved by the courts or to retroactively impose new
obligations on the Federal Government or the State of Hawaii.
Native Hawaiian claims--in contrast to those of most newly
recognized tribes--have been extensively litigated over the
past 100 years. There has been extensive litigation relating to
land claims, claims for money damages, and other types of
claims, dating back at least to 1908.\128\ The Committee
envisions that issues concerning asserted historic or moral
wrongs may be the subject of negotiations among the Native
Hawaiian governing entity, the State of Hawaii, and the United
States, together with the other issues encompassed within the
process set forth in section 9(b) of this Act, and that such
negotiations will provide an appropriate forum in which to
address these claims questions.
---------------------------------------------------------------------------
\128\E.g., Hawaii v. Office of Hawaiian Affairs, 129 S. Ct. 1436
(2009); Han v. Department of Justice, 824 F. Supp. 1480, 1486 (D. Haw.
1993), aff'd, 45 F.3d 333 (9th Cir. 1995); Keaukaha-Panaewa Cmty. Ass'n
v. Hawaiian Homes Comm'n, 588 F.2d 1216, 1224 n.7 (9th Cir. 1979); Na
Iwi O Na Kupuna O Mokapu v. Dalton, 894 F. Supp. 1397 (D. Haw. 1995);
Liliuokalani v. United States, 45 Ct. Cl. 418 (1910); see also Burgert
v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661 (9th Cir. 2000);
`Ohana v. United States, 76 F.3d 280 (9th Cir. 1996); Price v. Akaka, 3
F.3d 1220 (9th Cir. 1995); Ulaleo v. Paty, 902 F.2d 1395 (9th Cir.
1990); Bush v. Watson, 918 P.2d 1130 (Haw. 1996); Aged Hawaiians v.
Hawaiian Homes Comm'n, 891 P.2d 279 (Haw. 1995); Bush v. Hawaiian Homes
Comm'n, 870 P.2d 1272 (Haw. 1994); Pele Defense Fund v. Paty, 837 P.2d
1247 (Haw. 1992); Territory v. Kapiolani, 18 Haw. 640 (Haw. Terr.
1908); Territory v. Puahi, 18 Haw. 649 (Haw. Terr. 1908).
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Section 10. Applicability of Federal laws
Section 10 was amended to state that the Council,
established by section 8(c)(2), and the subsequent Native
Hawaiian governing entity will be considered an ``Indian
tribe'' for the purposes of sections 201 through 203 of the
Indian Civil Rights Act of 1968.
In addition, the substitute amendment clarifies that
nothing in this Act would extend eligibility for any Indian
program for the Native Hawaiian governing entity or its members
unless it explicitly states they are eligible. Again, unlike
most newly recognized native governments, Congress has
consistently established separate programs for Native
Hawaiians. The Committee expects that for the foreseeable
future, funding for Native Hawaiians remains separate, but with
the understanding that sometime in the future, it may make
sense to include Native Hawaiians in other native programs and
extinguish some of the Native Hawaiian specific programs. A
similar approach was taken with Alaska Natives. Nothing in this
Act affects eligibility for any program or service in effect
before the date of enactment of this Act.
Subsections were added to clarify that the terms ``Indian''
and ``Native American'' in Federal statutes or regulations in
force prior to United States' recognition of the Native
Hawaiian governing entity, do not apply to the Native Hawaiian
governing entity or its members unless it expressly does so. In
addition, new subsections clarify that the Indian Trade and
Intercourse Act does not apply to any land transfer involving
Native Hawaiians or Native Hawaiian entities that occurs prior
to recognition of the Native Hawaiian governing entity.
As stated above, the substitute amendment expressly makes
the Indian Civil Rights Act of 1968\129\ applicable to the
Council and the Native Hawaiian governing entity. The Indian
Civil Rights Act (ICRA) provides certain protections similar to
those under the Bill of Rights and the Fourteenth
Amendment.\130\ Similar to how the Bill of Rights and
Fourteenth Amendment operate to constrain the United States and
the several states in the exercise of their powers, ICRA will
restrict the actions of the Native Hawaiian governing entity
and will prohibit it from violating, for example, the due-
process and equal-protection rights of members and nonmembers
alike.
---------------------------------------------------------------------------
\129\25 U.S.C. Sec. Sec. 1301-03.
\130\See id. Sec. 1302.
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Importantly, because this provision makes ICRA expressly
applicable to the Native Hawaiian governing entity, a person
would be able to file a habeas corpus petition in Federal court
to challenge the legality of his detention by an order of the
Native Hawaiian governing entity.\131\ While ICRA allows a
person to bring a habeas action, and thus serves as a limited
waiver of the Native Hawaiian governing entity's sovereign
immunity, it is not a general waiver of the entity's sovereign
immunity.\132\
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\131\Id. Sec. 1303.
\132\See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59 (1978).
---------------------------------------------------------------------------
By incorporating only those statutes that expressly
reference Native Hawaiians, Section 10(d)(2) attempts to
provide clear direction to Federal agencies regarding which
programs and statutes are available to Native Hawaiians, and to
avoid statute-by-statute litigation over the scope of these
statutes. The Committee anticipates that a body of law
addressing Native Hawaiians will develop over time, based on
currently existing statutory and regulatory provisions and new
legislation and court decisions.
This language is intended to avoid uncertainty, and
potential litigation, as to whether Native Hawaiians are
properly considered ``Indians,'' or the Native Hawaiian
sovereign is properly considered an ``Indian tribe'' under
every existing statute involving Indians and Indian tribes.
These terms occur throughout the United States Code and
associated implementing regulations. Such references to
``Indians'' and ``tribes'' were not generally intended to
encompass Native Hawaiians. When Congress has wanted to
reference Native Hawaiians, it has done so expressly. There is
an extensive body of Federal Indian statutes and regulations
specifically addressing Native Hawaiians, often in conjunction
with other Native Americans.\133\
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\133\E.g., American Indian Religious Freedom Act, 42 U.S.C.
Sec. 1996; Native American Graves Protection and Repatriation Act, 25
U.S.C. Sec. Sec. 3001-3013; Native American Programs Act of 1974, 42
U.S.C. Sec. Sec. 2991-2992d.
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Section 10(e) addresses the Indian Trade and Intercourse
Act. First enacted in 1790, that Act requires Congressional
assent to transfers of Indian land title to third parties. The
Indian Trade and Intercourse Act has never been thought to
apply to the alienation of Native Hawaiian lands. As a result,
parties have not sought Congressional ratification pursuant to
25 U.S.C. Sec. 177 prior to the transfer of these lands. To
apply the Indian Trade and Intercourse Act retroactively could
impose significant liabilities on landowners in Hawaii, as well
as on the State of Hawaii and the Federal Government. The
provision in section 10(e) eliminates the possibility of a
cloud on title issuing from the Indian Trade and Intercourse
Act. Section 10(e) is primarily directed to the State and
private parties, but the language is written to include all
transactions, including those involving the Federal Government,
to avoid future uncertainty and litigation.
Section 11. Severability
Other than to change the section number from 10 to 11, this
section was not amended.
Section 12. Authorization of appropriations
Other than to change the section number from 11 to 12, this
section was not amended.
SECTION-BY-SECTION OF S. 1011, AS AMENDED
Section 1. Short title
Section 1 sets forth the short title for the bill as the
``Native Hawaiian Government Reorganization Act of 2009.''
Section 2. Findings
Section 2 sets forth Congressional findings that support
this legislation. These findings, among other things, identify
some of the key respects in which Congress has previously
legislated for the benefit of the Native Hawaiian people--
thereby recognizing them as a distinctly native community
within Congress's power to legislate in respect of Indian
tribes. The findings also discuss some of the past and current
ways in which the Native Hawaiian people have preserved their
culture, traditions, and identity as a distinctly native
people, and have given expression to their rights as native
people to self-determination, self-governance and economic
self-sufficiency.
Section 3. Definitions
Section 3 sets forth a number of definitions of terms used
in this Act, including definitions for the term ``aboriginal,
indigenous, native people,'' ``Native Hawaiian membership
organization'', and ``qualified Native Hawaiian constituent''.
The term ``aboriginal, indigenous, native people'' is
defined as the ``people whom Congress has recognized as the
original inhabitants of the lands that later became part of the
United States and who exercised sovereignty in the areas that
later became part of the United States.''
The term ``Native Hawaiian membership organization'' is
defined as ``an organization that . . . serves and represents
the interests of Native Hawaiians, has as a primary and stated
purpose the provision of services to Native Hawaiians, and has
expertise in Native Hawaiian affairs; . . . has leaders who are
elected democratically, or selected through traditional Native
leadership practices, by members of the Native Hawaiian
community; . . . advances the cause of Native Hawaiians
culturally, socially, economically, or politically; . . . is a
membership organization or association; and . . . has an
accurate and reliable list of Native Hawaiian members.''
The term ``qualified Native Hawaiian constituent''
identifies adult U.S. citizens who, subject to the procedures
and provisions of Section 8 of the Act, will be eligible to
participate in the reorganization of the Native Hawaiian
governing entity. The term is defined in part as ``an
individual who is 1 of the indigenous, native people of Hawaii
and who is a direct lineal descendant of the aboriginal,
indigenous, native people who . . . resided in the islands that
now comprise the State of Hawaii on or before January 1, 1893;
and . . . occupied and exercised sovereignty in the Hawaiian
archipelago, including the area that now constitutes the State
of Hawaii; or . . . an individual who is 1 of the indigenous,
native people of Hawaii and who was eligible in 1921 for the
programs authorized by the Hawaiian Homes Commission Act, 1920
(42 Stat. 108, chapter 42), or a direct lineal descendant of
that individual.''
In addition to certifying lineal descent requirements, as
provided above, qualified Native Hawaiian constituents must be
U.S. citizens, 18 years of age or older, wish to participate in
the reorganization process, and maintain a significant
cultural, social, or civic connection to the Native Hawaiian
community, as evidenced by satisfying two or more of the ten
listed criteria.
Section 4. United States policy and purpose
In section 4, the United States reaffirms its political and
legal relationship with the Native Hawaiian people, and the
distinctly native nature of the Native Hawaiian community.
Section 4 also explains that Congress is exercising its
authority to enact legislation directed to Native Hawaiians, as
it has previously done in more than 150 Federal laws. This
section also reaffirms that Native Hawaiians have an inherent
right to autonomy in their internal affairs, an inherent right
of self-determination and self-governance, the right to
reorganize a Native Hawaiian governing entity, and the right to
become economically self-sufficient. This section states that
the United States shall continue to engage in the process of
reconciliation and political relations with Native Hawaiians.
This section also sets forth the purpose of the Act, which
is to provide a process for the reorganization of a single
Native Hawaiian governing entity and the reaffirmation of the
special political and legal relationship between the United
States and that Native Hawaiian governing entity for purposes
of continuing a government-to-government relationship.
Section 5. United States Office for Native Hawaiian Relations
Section 5 establishes the United States Office for Native
Hawaiian Relations (Office) in the Office of the Secretary of
the Department of the Interior and sets forth the duties of the
Office. This section does not apply to the Department of
Defense but the Secretary of Defense may designate one or more
officials as liaison to the Office.
Section 6. Native Hawaiian Interagency Coordinating Group
Section 6 establishes the Native Hawaiian Interagency
Coordinating Group, which is to be composed of officials from
each Federal agency that administers Native Hawaiian programs,
establishes or implements policies that affect Native
Hawaiians, or whose actions may significantly or uniquely
impact Native Hawaiian resources, rights, or lands, and the
Office for Native Hawaiian Relations. The specific duties of
the Interagency Coordinating Group are set forth but,
generally, the Group will coordinate Federal programs and
policies affecting Native Hawaiians and consult with the Native
Hawaiian governing entity.
This section does not apply to the Department of Defense
but the Secretary of Defense may designate one or more
officials as liaison to the Interagency Coordinating Group.
Section 7. Designation of Department of Justice representative
Section 7 provides for a representative from the Department
of Justice to assist the Office for Native Hawaiian Relations
with the implementation of this Act to ensure that all
constitutional parameters, rights, and protections are
observed.
Section 8. Process for reorganization of Native Hawaiian Governing
Entity and reaffirmation of special political and legal
relationship between United States and Native Hawaiian
Governing Entity
Section 8 outlines the process for the reorganization of
the Native Hawaiian governing entity. Section 8 initially
establishes that the United States recognizes the right of the
qualified Native Hawaiian constituents to reorganize the single
Native Hawaiian governing entity to provide for their common
welfare and to adopt appropriate organic governing documents.
A Commission composed of nine members is established to
prepare and maintain a roll of the ``qualified Native Hawaiian
constituents'' who elect to participate in the reorganization
of a single Native Hawaiian governing entity. The
qualifications for appointment by the Secretary to the
Commission as well as the duties and parameters of the
Commission are outlined in this section.
Following the establishment of the Commission, a process
for reorganization of a single Native Hawaiian governing entity
is set forth. First, a roll of the names of the qualified
Native Hawaiian constituents is established, as defined by
section 3. The Commission is required to determine the types of
documentation that can be submitted to the Commission for a
determination to be made on whether an individual meets the
definition of ``qualified Native Hawaiian constituent'' for the
purposes of establishing a roll. The Commission must submit to
the Secretary of the Interior an established roll and certify
that individuals on the list satisfy the requirements of the
definition in section 3. The certified roll shall be published
in the Federal Register. An appeal mechanism shall be
established by the Secretary of the Interior in consultation
with the Commission for any person whose name is excluded from
the roll but who claims to meet the definition of ``qualified
Native Hawaiian constituent.'' The Commission is responsible
for updating the roll.
The Commission, in consultation with the Secretary, will
hold a minimum of three meetings that are at least two working
days of the qualified Native Hawaiian constituents listed on
the roll to organize the Native Hawaiian Interim Governing
Council. The qualified Native Hawaiian constituents on the
certified roll may develop criteria for candidates to serve on
the Native Hawaiian Interim Governing Council, determine the
structure of the Council, and elect members from individuals
listed on the roll to serve on the Council. This section sets
forth the powers and activities of the Council, which include
developing organic governing documents for the Native Hawaiian
governing entity and holding elections to ratify such organic
documents.
Following ratification of the organic governing documents,
they shall be submitted to the Secretary. The Secretary must
certify that the organic documents contain criteria for future
membership in the Native Hawaiian governing entity; were
adopted by a majority vote of the qualified Native Hawaiian
constituents on the published roll who chose to vote in the
election; provide authority for the Native Hawaiian entity to
negotiate; provide for the exercise of inherent authorities of
the Native Hawaiian governing entity; prevent the sale,
disposition, lease, or encumbrance of lands, interests in lands
or other assets of the Native Hawaiian governing entity;
provide for civil rights protection for citizens of the Native
Hawaiian governing entity and all persons affected by the
exercise of governmental powers and authorities by the Native
Hawaiian governing entity; and that the organic governing
documents are consistent with applicable Federal law.
Upon certification of the organic governing documents and
the election and installation of officers of the Native
Hawaiian governing entity, the Council shall cease to exist.
Once this occurs, the political and legal relationship between
the United States and the Native Hawaiian governing entity will
automatically be reaffirmed and Federal recognition shall be
extended to the Native Hawaiian governing entity as the
representative sovereign governing body of the Native Hawaiian
people.
Section 9. Reaffirmation of delegation of Federal authority to State of
Hawaii; negotiations; claims
Section 9 provides that upon reaffirmation of the political
and legal relationship between the United States and the Native
Hawaiian governing entity, the United States and the State of
Hawaii may enter into negotiations with the Native Hawaiian
governing entity. The Native Hawaiian governing entity will
exercise the inherent governmental powers of a native
government under existing law, only modified by agreement among
the Native Hawaiian governing entity, the United States, and
the State. These agreements address such matters as the
transfer of State of Hawaii lands and surplus Federal lands,
natural resources, and other assets, and the protection of
existing rights related to such lands or resources; the
exercise of governmental authority over any transferred lands,
natural resources, and other assets, including land use; the
exercise of civil and criminal jurisdiction; the exercise of
other powers and authorities that are recognized by the United
States as powers and authorities typically exercised by
governments representing indigenous, native people of the
United States; any residual responsibilities of the United
States and the State of Hawaii; and grievances regarding
assertions of historical wrongs committed against Native
Hawaiians by the United States or by the State of Hawaii.
Upon agreement on any matter or matters, negotiated with
the United States or the State of Hawaii, and the Native
Hawaiian governing entity, the parties may submit
recommendations for proposed amendments to Federal law that
will enable the implementation of these agreements to both the
Federal and State governments.
This section clarifies that the Native Hawaiian governing
entity shall be vested with the inherent powers and privileges
of self-government of a native government under existing law.
These powers may be modified through negotiations and by
agreement between the three entities, with the exception of
section 10(a) of the Act. Nothing in this Act shall preempt
Federal or State authority over Native Hawaiians or their
property under existing law or authorize the State to tax or
regulate the Native Hawaiian governing entity, unless so agreed
by the three entities. In addition, the United States
recognizes and affirms the Native Hawaiian governing entity's
inherent power and authority to determine its own membership
once Federal recognition is extended.
Finally, this section further addresses potential or
existing causes of action against the United States or any
other entity or person. It specifically states that nothing in
this Act alters existing law, including case law, regarding
obligations of the United States or the State of Hawaii
relating to events or actions that occurred prior to
recognition of the Native Hawaiian governing entity. In
addition, this Act does not create, enlarge, revive, modify,
diminish, extinguish, waive, or otherwise alter any claim or
cause of action against the United States or its officers or
the State of Hawaii or its officers, or any defense (including
the defense of statute of limitations) to any such claim or
cause of action. Nor does the Act alter the applicable statutes
of limitations. This section also lists a number of other Acts
which this Act would not amend unless expressly stated in this
Act.
Section 10. Applicability of certain Federal laws
Section 10 prohibits the Native Hawaiian governing entity
and Native Hawaiians from conducting gaming as a matter of
claimed inherent authority or under any Federal law, in the
State of Hawaii or within any other State or Territory of the
United States.
Only one Native Hawaiian governing entity may be recognized
pursuant to this Act. The Council and the subsequent governing
entity recognized under this Act shall be an Indian tribe as
defined in the Indian Civil Rights Act of 1968. No other groups
shall be eligible for the Federal Acknowledgment Process. In
addition, this section clarifies that Native Hawaiians shall
not be eligible for programs and services available to Indians
unless otherwise provided under applicable Federal law. The
Native Hawaiian governing entity and its members shall be
eligible for Native Hawaiian programs and services to the
extent and in the manner provided by other applicable laws.
Finally, this section makes clear that the Indian Trade and
Intercourse Act does not apply to land conveyances, titles or
claims involving Native Hawaiians or Native Hawaiian
organizations prior to the date of the United States'
recognition of the Native Hawaiian governing entity.
Section 11. Severability
The section provides that if any section or provision of
this Act is found to be invalid, the remaining sections or
provisions shall continue in full force and effect.
Section 12. Authorization of appropriations
This section authorizes such sums as necessary to carry out
this Act.
COMMITTEE RECOMMENDATION AND TABULATION OF VOTE
On December 17, 2009, in an open business meeting, the
Committee considered S. 1011 and ordered, by voice vote, that
the bill be favorably reported with an amendment in the nature
of a substitute to the Senate, and that the bill, as amended,
do pass.
COST AND BUDGETARY CONSIDERATIONS
S. 1011--Native Hawaiian Government Reorganization Act of 2009
S. 1011 would establish a process for a Native Hawaiian
government to be constituted and recognized by the federal
government. CBO estimates that implementing this legislation
would cost about $1 million annually over the 2010-2012 period
and less than $500,000 in each subsequent year, assuming the
availability of appropriated funds. Enacting the bill would not
affect direct spending or revenues.
The bill would establish the United States Office for
Native Hawaiian Relations within the Department of the Interior
(DOI) to consult and coordinate the relationship with the
Native Hawaiian governing entity. Based on information from
DOI, CBO expects that the office would require up to three
full-time personnel. S. 1011 also would establish the Native
Hawaiian Interagency Coordinating Group, consisting of
officials from DOI and certain other federal agencies. Finally,
the bill would create a nine-member commission responsible for
creating and certifying a roll of adult Native Hawaiians. Based
on information from DOI, CBO expects that this commission would
need three years and three full-time staff to complete its
work.
CBO has determined that section 10(c) of S. 1011 is
excluded from review for mandates under the Unfunded Mandates
Reform Act (UMRA) because it enforces constitutional rights of
individuals. Other provisions of the bill contain no
intergovernmental or private-sector mandates as defined in UMRA
and would impose no costs on state, local, or tribal
governments. Enacting this legislation could lead to the
creation of a new government unit to represent Native
Hawaiians. The transfer of any land or other assets, including
land now controlled by the state of Hawaii, would be the
subject of future negotiations.
On January 7, 2010, CBO transmitted a cost estimate for
H.R. 2314, the Native Hawaiian Government Reorganization Act of
2009, as ordered reported by the House Committee on Natural
Resources on December 16, 2009. S. 1101 contains a provision
not included in H.R. 2314 that enforces certain constitutional
rights. That difference in the bills is reflected in the
mandates statements of the cost estimates. Otherwise, the two
bills are similar, and the estimated costs are the same.
The CBO staff contact for this estimate is Jeff LaFave. The
estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
ADDITIONAL VIEWS OF VICE CHAIRMAN BARRASSO
I have given my views on this bill, S. 1011, during the
Committee's hearing in August of 2009 and during the business
meeting last December during which the Committee approved by
voice vote the substitute amendment: I cannot support this
bill.
There are many aspects of the substitute amendment that are
either troubling or give me great pause, but for purposes of
this statement of additional views I will confine my remarks to
what I think is the principal problem of this bill, both as
introduced and as it would be amended by the substitute. In
short, the bill presupposes that the group, entity or
organization that would emerge from the process authorized in
the bill is an ``Indian tribe'' within the meaning of the
United States Constitution, or is at least the functional
equivalent of an Indian tribe for constitutional purposes.
That is a presupposition that I am unable and unwilling to
make.
Many people take the position that, as a matter of law and
fact and history, Native Hawaiians simply cannot be recognized
as a group in the same way that Indian tribes are recognized.
On the other hand, many others take the position that indeed
Native Hawaiians can be recognized that way, as a group that is
functionally and legally the equivalent of an American Indian
tribe. In our Committee hearings on this and prior versions of
the Native Hawaiian recognition bill we have heard from
proponents of both sides of the question.
During the Committee hearing on S. 1011 in August of 2009,
Professor Stuart Minor Benjamin of Duke Law School submitted
testimony suggesting that the question whether a Native
Hawaiian government can or should be federally recognized is an
exceedingly difficult one, fraught with many legal and
constitutional issues that deserve serious consideration.
The significance of Federal recognition of an Indian tribe
is far reaching--for the tribe, for its members, and for the
United States.
That is why we have an administrative recognition process
in the Department of the Interior: to determine which native
groups should be recognized by the Federal government as Indian
tribes, and which native groups should not. The analysis that
goes into that determination is very exacting, covering a
number of historical, ethnographic, and other relevant factors
relating to the tribal group and its members.
I appreciate that the substitute amendment includes
provisions that would impose a number of new requirements for
enrollment to participate in the referendum process authorized
by the bill. These new requirements would likely limit the size
of the population that would vote on the governing documents,
including a requirement that, to be eligible to enroll, a
person of Native Hawaiian descent also would have to provide
evidence of minimum ties or relationships to ``the Native
Hawaiian community,'' such as ties to certain Native Hawaiian
lands, eligibility for benefits under the Hawaiian Homes
Commission Act, or participation in Native Hawaiian
organizations.\1\ Nevertheless, these new requirements seem
rather minimal and arbitrary, and in any event give me little
or no comfort that what we are coming up with in this bill is
an Indian tribe, or the constitutional equivalent of an Indian
tribe.\2\
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\1\See the definition of ``qualified Native Hawaiian constituent''
in section 3(12) of the substitute amendment. In addition to other
requirements, this definition sets forth a list of 10 criteria, any 2
or more of which will suffice to demonstrate that the person maintains
``a significant cultural, social, or civic connection to the Native
Hawaiian community. . . .''
\2\The reorganization process set forth in section 8 of the bill
seems almost outcome determinative. Would many ``qualified Native
Hawaiian constituents'' who do not support recognition of a Native
Hawaiian government gather the evidence of eligibility necessary to
enroll under the substitute amendment, pursue the enrollment process,
and then cast their votes against ratification of governing documents?
Perhaps, but it seems highly unlikely. To the contrary, the process
appears to be one that will tend to enroll those who favor recognition
and not those who are either opposed or indifferent to recognition.
---------------------------------------------------------------------------
I continue to believe that the best way to determine
whether Native Hawaiians should be treated as an Indian tribe
is not to have Congress deem them to be so as this bill would
do but instead to authorize them to pursue the same
administrative process at the Department of the Interior that
other native groups must pursue, so that they, like these other
groups, can make their best case for Federal recognition within
that process.
S. 1011, as introduced and as embodied in the substitute
amendment filed by Senator Akaka, jumps to the conclusion that
the group that ultimately organizes under the bill should be
treated like a federally recognized Indian tribe. Respectfully,
I do not think that we, as members of this Committee and of the
Senate, can or should make the determination that the Native
Hawaiian governing entity should be treated as a federally
recognized Indian tribe.
For that reason I cannot support this bill.
John Barrasso.
ADDITIONAL VIEWS FROM SENATOR McCAIN
For years, the Senate Committee on Indian Affairs has been
considering legislation that would establish a process for
reorganization and federally recognizing a native Hawaiian
government. I understand that this legislation has been offered
in response to several concerns expressed by the members of the
Hawaii delegation. I am very much aware that one of the
purposes of this legislation is to insulate current native
Hawaiian programs from constitutional attack in the courts, and
I am sympathetic to that purpose. However, that does not change
the fact that I have serious doubts about the wisdom of this
legislation.
If enacted, S. 1011 would result in the formation of a
sovereign government for Native Hawaiian people, which carries
with it the privilege of sovereign immunity from lawsuits, and
the powers to tax, to promulgate and enforce criminal code, and
to exercise eminent domain. I cannot turn away from the fact
that this bill bases this new nation exclusively--not
primarily, not in part, but exclusively--on race. This approach
has drawn criticism from the U.S. Commission on Civil Rights,
which recommended against passage of a similar native Hawaiian
bill, S. 147, during the 109th Congress, and warned that the
proposal would ``discriminate on the basis of race'' and
``further subdivide the American people into discrete subgroups
accorded varying degrees of privilege.''
The Constitution provides the federal government with the
power to recognize tribes with a continuous history of separate
self-governance, but it does not give it the power to
reconstitute or create a new tribe made up of a collection of
United States citizens demanding special status. Regrettably,
at its core, this bill embraces the dangerous concept of
conferring special privileges on one racial group over others.
This is unacceptable to me, and it is unacceptable, I am sure,
to most other citizens of this Nation who agree that we must
continue our struggle to become and remain one people--all
equal, all Americans.
John McCain.
ADDITIONAL VIEWS OF TOM COBURN
I want to thank my colleagues for this opportunity to
express my grave concerns with S. 1011, ``the Native Hawaiian
Government Reorganization Act,'' now being reported by the
Indian Affairs Committee.
As my colleagues on the committee know well, this bill has
been around for some time. I have many serious objections to
this bill, and have submitted a series of documents to the
Committee outlining most of those concerns.
I will focus my many comments on the one question that
matters most: Does Congress have the Constitutional authority
to take this unprecedented action?
IS THE BILL CONSTITUTIONAL?
Section 2 of this bill reads: ``Congress finds that--(1)
the Constitution vests Congress with the authority to address
the conditions of the indigenous, native people of the United
States;''.
Section 4 reads, in part: ``Congress possesses the
authority under the Constitution, including but not limited to
Article I, section 8, clause 3, to enact legislation to address
the conditions of Native Hawaiians.''
Since it is the only provision of our Constitution
specifically mentioned in the bill, I think it is important
that senators read Article I, Section 8, Clause 3: ``Congress
shall have Power . . . To regulate Commerce with foreign
Nations, and among the several States, and with the Indian
Tribes;''.
In other words, this entire bill rests upon the ability of
Congress to regulate commerce with Indian tribes.
Supporters of this bill will argue that ``Indian tribes''
also refers to ``indigenous peoples.'' I adamantly disagree
with that interpretation, and while each senator will have to
decide this issue based on their reading of the Constitution
and their Oath, I believe the historical record is clear.
I have submitted volumes of information in the official
committee hearing record from constitutional scholars and
historians that underscore this lack of authority and the
serious harm this precedent will establish. I encourage my
colleagues to examine those documents in detail. The evidence
is quite clear.
Ironically, many of the bill's strongest opponents have
previously agreed with these concerns. For instance:
In 1998, the State of Hawaii (now one of the strongest
supporters of the bill--expending considerable resources) had
this to say in a brief before the U.S. Supreme Court: ``the
tribal concept simply has no place in the context of Hawaiian
history.''\1\
---------------------------------------------------------------------------
\1\Brief in opposition to Petition for Writ of Certiorari at p. 18,
Rice v Cayetano, 528 US 495 (2000).
---------------------------------------------------------------------------
Senator Inouye--one of the most respected men to ever serve
on the Indian Affairs Committee--had this to say: ``Because the
Native Hawaiian government is not an Indian tribe, the body of
Federal Indian law that would otherwise customarily apply when
the United States extends Federal recognition to an Indian
tribal group does not apply.''
Senator Inouye went on to say: ``. . . That is why concerns
which are premised on the manner in which Federal Indian law
provides for the respective governmental authorities of the
state governments and Indian tribal governments simply don't
apply in Hawaii.''\2\
---------------------------------------------------------------------------
\2\Inouye, Daniel Senator, ``Statement on Introduced Bills and
Resolutions.'' January 25, 2005.
---------------------------------------------------------------------------
In other words, the very foundation on which this bill is
based--Congress' ability to regulate commerce among Indian
tribes--is highly questionable.
On the one hand, the authors of this bill claim that Native
Hawaiians are an ``Indian tribe'' as a basis for Constitutional
authority, and on the other hand, claim it is in fact NOT an
``Indian tribe'' for purposes of Indian law.
If the statements of the bill's supporters are accurate, it
is not even clear whether the Indian Affairs Committee had
proper jurisdiction to review this bill.
There simply is no comparison to Indian tribes, or even to
Alaska Native Corporations.
This bill does not restore ``tribal status'' where it once
existed; It creates an entirely new government based solely on
race. The Kingdom of Hawaii was a diverse society and
government (much like the state today). The new ``tribe'' will
not reflect that tradition and will create a government just
for those deemed ``indigenous.''
Unlike the many Indian tribes in my state whose governments
were subsequently terminated, no such history exists for a
Native Hawaiian entity.
American Indians were not even formally given full
citizenship until 1924.\3\ In contrast, Native Hawaiians became
citizens of this country in 1900, twenty four years earlier.\4\
Native Hawaiians took part in the referendum that brought
Hawaii into the Union as a state, and as one government.
---------------------------------------------------------------------------
\3\http://memory.loc.gov/ammem/today/jun02.html
\4\http://www.capitol.hawaii.gov/hrscurrent/Vol01_Ch0001-0042F/03-
ORG/ORG_0004.HTM
---------------------------------------------------------------------------
In Oklahoma, and even in Alaska, there were distinct tribal
populations with existing governments at the time of statehood.
That was not the case in Hawaii. In Alaska, distinct tribal
communities existed at the time of statehood and were addressed
in that state's organic documents. Again, that is not the case
in Hawaii.
WHAT IS THE SOLUTION?
If the Native Hawaiians are entitled to sovereign tribal
government status, as this bill presupposes, the solution is
quite simple.
As many of my colleagues know, the federal government
already has in place an established and rigorous seven step
process for recognition of tribal governments. This review is
handled by the Office of Federal Acknowledgement (OFA).
This process is applied evenly to all who apply, and takes
politics out of the equation.
This committee should take the supporters of Native
Hawaiian governmental recognition at their word. If they are
indeed a distinct Indian community with historic ties to the
federal government, and who has continued to exercise
continuous governmental authority after an official
termination, a Native Hawaiian entity should submit an
application to OFA. If it believes it is not eligible for this
process, Congress can easily authorize it to submit an
application.
THE LEGISLATIVE PROCESS
Even though the Committee has officially reported S. 1011,
it is my hope that the people of Hawaii--those most immediately
impacted by this bill--will have an opportunity to have their
voices heard in Congress. While I mean no disrespect to the
panelists who have testified during the legislative hearing, it
is clear that those most strongly favoring the creation of a
separate Native Hawaiian government have had a dominant voice.
Further, the last minute changes made to this bill during
the business meeting have heightened my concerns and should
give the State of Hawaii considerable heartburn. The amendment
in the nature of a substitute will severely weaken the
sovereignty of the State of Hawaii and place it on a path
towards two separate Hawaiis--one subject to the Constitution
of the United States and built on the proudest traditions of
American diversity and the other with undefined ``inherent''
authority that will reshape the State of Hawaii, and place many
of its residents outside the full protections of the Bill of
Rights.
In an effort to preserve subsidies put in place for Native
Hawaiians and jeopardized by recent Court decisions, this
Congress is being asked to act outside of its Constitutional
bounds and completely redefine the Indian Commerce Clause. This
is a dangerous precedent for our nation.
There are dozens of senators, including me, who believe
this bill is a violation of our oath to the Constitution and a
major affront to the Indian tribes in our states who have
labored to regain their recognition.
The road ahead for this bill will not be an easy one. I,
along with many of our colleagues, will never give unanimous
consent to moving forward on this bill.
Tom Coburn.
EXECUTIVE COMMUNICATIONS
The Committee held a hearing on S. 1011 on August 6, 2009,
at which Sam Hirsch, Deputy Associate Attorney General, U.S.
Department of Justice, presented a statement on behalf of the
Administration. In this statement, Mr. Hirsch acknowledged that
many of the Administration's concerns with previous versions of
the Native Hawaiian Government Reorganization Act had been
addressed in S. 1011. He also stated that the Department of
Justice strongly supported the core policy goals of this bill,
while recognizing that some of the specific details of the
legislation were still being addressed. Mr. Hirsch's statement
was made a part of the hearing record for the Committee.
REGULATORY AND PAPERWORK IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill evaluate
the regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that the
regulatory and paperwork impact of S. 1011 will be minimal.
CHANGES IN EXISTING LAW
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee finds that the
enactment of S. 1011 will not make any changes in existing law.