[Senate Report 112-251]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 568
112th Congress                                                   Report
                                 SENATE
 2d Session                                                     112-251

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


 

       TO EXPRESS THE POLICY OF THE UNITED STATES REGARDING THE
    UNITED STATES RELATIONSHIP WITH NATIVE HAWAIIANS AND TO PROVIDE
        PARITY AND A PROCESS FOR THE RECOGNITION BY THE UNITED
           STATES OF THE NATIVE HAWAIIAN GOVERNING ENTITY

                                _______
                                

               December 17, 2012.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 675]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 675) 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, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the bill (as amended) do pass.

                                PURPOSE

    The purpose of S. 675 is to ensure parity in federal 
treatment of Native nations with whom the United States has a 
trust responsibility, to establish a process for the 
reorganization and federal recognition of a Native Hawaiian 
governing entity, 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.

                               BACKGROUND

Native Hawaiians are the only federally-recognized Native people barred 
        from self-determination and self-governance

    The Native Hawaiian people are the only federally-
recognized Native people without a government-to-government 
relationship with the Federal Government. Native Hawaiians are 
indigenous to the State of Hawaii--just as American Indians are 
indigenous to the contiguous United States and Alaska Natives 
are indigenous to the State of Alaska.\1\ S. 675 creates parity 
within federal policy so that Native Hawaiians will be treated 
as are all other Native Americans.\2\
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    \1\In 2011, the State of Hawaii officially recognized the Native 
Hawaiian people as ``the only indigenous, aboriginal, maoli population 
of Hawaii.'' Act 195 (26th Haw. Leg. Sess. (2011)). ``The enactment of 
Act 195 was yet another example of Hawaii's ongoing desire to recognize 
the unique contributions and traditions of the Native Hawaiian 
people.'' Hawaiian Homeownership Act of 2011: Oversight Field Hearing 
on S. 65 Before the S. Comm. on Indian Affairs, 112th Cong. (Apr. 13, 
2012) (statement of Sen. Brickwood Galuteria, Majority Leader, Hawaii 
State Capitol). That Native Hawaiians, Alaska Native, and American 
Indians are not of the same racial group should not be a factor in 
determining who is considered ``Indian.'' Alaska Natives and American 
Indians of the forty-eight contiguous states have many racial 
differences and yet both groups are considered Indians under federal 
law. Despite racial differences between Indians in the lower forty-
eight states and Alaska Natives, the United States Supreme Court has 
included Alaska Natives, non-Indians under an anthropological meaning, 
within the term ``Indian.'' Alaska Pac. Fisheries v. United States, 248 
U.S. 78, 86-87 (1918) (noting that the Annette Islands were established 
as a reservation ``for the use of the Metlakahtla Indians . . . and 
such other Alaskan natives as may join them''). See discussion infra 
pp. 6-9.
    \2\S. Comm. on Indian Affairs: Business Meeting to consider S. 675, 
S. 1345, S. 1684 (Sept. 13, 2012) (statement of Sen. Daniel K. Akaka, 
Chairman, S. Comm. on Indian Affairs). Native Hawaiians ``have yet to 
be afforded the same recognition as our first Americans'' and the 
responsibility to rectify this disparity is a moral imperative on the 
part of the United States Federal Government. 156 Cong. Rec. H700, H712 
(daily ed. Feb. 23, 2010) (statement of Rep. Faleomavaega). See also 
Hawaiian Homeownership Act of 2011: Oversight Field Hearing on S. 65 
Before the S. Comm. on Indian Affairs, 112th Cong. (Apr. 13, 2012) 
(statement of Melody Mackenzie, Associate Professor of Law and Director 
of Ka Huli Ao Center for Excellence in Native Hawaiian law at 
University of Hawaii, Richardson School of Law) (``Native Hawaiians .  
.  . are .  .  . the only native group in the United States that has a 
long history of .  .  . federal recognition, but does not have a 
clearly acknowledged government-to-government relationship with the 
U.S. government.''). The Congress has never properly addressed the 
status of Native Hawaiians and it is within Congress' constitutional 
authority to do so. U.S. Const., art. I, Sec. 8, cl. 3. See also United 
States v. Lara, 541 U.S. 193, 196 (2004) (``We must decide whether 
Congress has the constitutional power to relax restrictions that the 
political branches have, over time, placed on the exercise of a tribes' 
inherent legal authority. We conclude that Congress does possess this 
power.''). ``Not 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.'' Sandoval, 231 U.S. at 45-46; 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.'').

          I have seen so many changes in Hawai`i and across the 
        country, and I have been amazed at the resiliency of 
        our Native Hawaiian people, our culture, and our 
        language. . . . I have witnessed profound change in the 
        status and treatment of all indigenous peoples. Gone 
        are the days when teaching our language was banned, 
        when our culture and traditions were deemed 
        unimportant. We now know that our language, culture, 
        and traditions hold incredible wisdom about how best to 
        live in this place we call Hawaii.\3\
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    \3\Sen. Daniel K. Akaka, Final Speech to the Council for Native 
Hawaiian Advancement's Annual Native Hawaiian Convention (Oct. 5, 
2012).

    Having survived more than 200 years of foreign influence, 
the Native Hawaiian people are determined to preserve, develop, 
and pass on 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. Native Hawaiians preserve and perpetuate 
their culture, language, and lifeways through traditional 
practices like ho`oponopono (peace-making and conflict 
resolution), la`au lapa`au (traditional medicine), lua (martial 
arts), oli (chant), and hula (dance). These practices help 
Native Hawaiians address current socio-economic conditions, 
education, health, and resource management. By encouraging 
traditional practices as well as civic participation, community 
governance, and self-sufficiency, Native Hawaiians ensure that 
their culture will continue for many generations to come.
    The Native Hawaiian people have become leaders in national 
efforts to ensure the survival and proliferation of indigenous 
languages, and are the first Native American peoples to develop 
and offer Native language education programming from preschool 
to Ph.D.\4\ ``For the past twenty years [Native Hawaiians] have 
been recognized as `the go-to source of support' for Native 
American immersion and teaching methodology for endangered 
indigenous languages.''\5\
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    \4\A Timeline of Revitalization, E Ola Ka `Olelo Hawaii: The 
Hawaiian Language Shall Live (Nov. 17, 2012). The two leading entities 
in Native American language revitalization are `Aha Punana Leo, Inc. 
and the Liaison of Ka Haka `Ula O Ke`elikolani, Hawaiian language 
college established by the Hawaii State Legislature in 1997 at the 
University of Hawaii at Hilo. ``These two entities lead a consortium of 
programs in Hawaii and also in the national Native American language 
immersion effort.'' In Our Way: Expanding the Success of Native 
Language & Culture-Based Education: Oversight Hearing Before the S. 
Comm. on Indian Affairs, 112th Cong. (May 26, 2011) (statement of 
Namaka Rawlins, Liaison, Consortium `Aha Punana Leo, Ka Haka `Ula O 
Ke`elikolani, Ke Kula `o Nawahiokalani`opu`u).
    \5\In Our Way: Expanding the Success of Native Language & Culture-
Based Education: Oversight Hearing Before the S. Comm. on Indian 
Affairs, 112th Cong. (May 26, 2011) (statement of Namaka Rawlins, 
Liaison, Consortium `Aha Punana Leo Ka Haka `Ula O Ke`elik Iolani, Ke 
Kula `o Nawahiokalani`opu`u). (noting that current federal educational 
legislation fails to take into account ``the unique needs of Native 
American languages and the crisis of extinction facing Native American 
languages'' and this legislation may actually suppress Native American 
languages in American education).
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Native Hawaiians suffer the same consequences of negative federal 
        treatment as American Indians and Alaska Natives, yet Native 
        Hawaiians do not have a means to address these issues

    Native Hawaiian socio-economic and health conditions lag 
significantly behind other populations in Hawaii\6\ and the 
nation, and remain comparable to other Native Americans. Native 
Hawaiians consistently exhibit higher rates of unemployment 
than the state average, and are increasingly underrepresented 
in white-collar jobs, while remaining overrepresented in blue-
collar jobs.\7\ In 1999, 14.1 percent of Native Hawaiian 
families living in Hawaii lived below the poverty level, nearly 
double the statewide rate of 7.6 percent.\8\ In 2010, Native 
Hawaiians made up the largest percentage of people, 28.7 
percent, who received homeless shelter services.\9\ Native 
Hawaiian veterans also suffer disproportionately from the 
consequences of military service, including higher rates of 
disorders related to combat exposure.\10\
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    \6\``[T]he social statistics of Native Hawaiians, welfare rolls, 
incarceration rates, health issues are very, very significant and 
Hawaiians rank on the top of all of those social ills at this point, 
and have been for many, many years. And the legislation and NAHASDA and 
homeownership I think is an important step in providing stability.'' 
Hawaiian Homeownership Act of 2011: Oversight Field Hearing on S. 65 
Before the S. Comm. on Indian Affairs, 112th Cong. (Apr. 13, 2012) 
(statement of Richard Naiwieha Wurdeman, President, Native Hawaiian Bar 
Ass'n).
    \7\Shawn Malia Kana`iaupuni, Nolan J. Malone & Koren Ishibashi, ka 
huaka`i i mua: Findings from the 2005 Native Hawaiian Educational 
Assessment (Mar. 2005).
    \8\Office of Hawaiian Affairs, Native Hawaiian Data Book 189, Table 
2.48 (2011) [hereinafter Data Book].
    \9\Id. at 251, Table 2.91.
    \10\Programs and Services for Native Veterans: Oversight Hearing 
Before the S. Comm. on Indian Affairs, 112th Cong. (May 24, 2012) 
(statement of D. Noelani Kalipi, President, TiLeaf Group) (citations 
omitted).
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    The achievement outcomes for Native Hawaiian children are 
among the lowest throughout elementary and secondary school and 
the math achievement scores of Native Hawaiians continue to be 
significantly lower than those of other ethnic groups.\11\ Less 
than half of Native Hawaiian adults hold either a bachelor's or 
graduate/professional degree as compared to all adults in 
Hawaii.\12\
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    \11\Shawn Malia Kana`iaupuni, Nolan J. Malone & Koren Ishibashi, ka 
huaka`i i mua: Findings from the 2005 Native Hawaiian Educational 
Assessment (Mar. 2005).
    \12\Id.
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    Native Hawaiians have the highest incidence of lung, 
breast, and uterine cancer of any group in Hawaii.\13\ In 2007, 
11 percent of the Native Hawaiian population suffered from 
diabetes, compared to a rate of 6 percent for the rest of the 
State of Hawaii.\14\ In 2009 and 2010, 69.6 percent of the 
Native Hawaiian population was considered overweight or obese 
as compared to the statewide average of 52.1 percent.\15\
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    \13\Data Book, supra note 8, at 559, Figure 7.49b & 562, Figure 
7.49g, Figure 7.49h (for the years 1995-2000).
    \14\Id. at 542, Table 7.42b & 544, Figure 7.42h.
    \15\Id. at 598-599, Table 7.64.
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    Until there is a recognized government-to-government 
relationship between the Federal Government and the Native 
Hawaiian people, as there exists between the Federal Government 
and all other Native American peoples, Native Hawaiians will 
not have access to the federal policy of self-determination, 
nor will they be able to exercise self-governance, as do all 
other Native Americans. This policy was ``intended to assure 
that all three groups of America's indigenous Native people, 
American Indians, Alaska Natives and Native Hawaiians have 
equal status under federal law.''\16\ Without access to this 
federal policy, without the opportunity to make decisions about 
their own affairs, resources, and futures, the disparities 
between Native Hawaiians and other Americans will persist and 
continue to worsen. Self-governance empowers Native people by 
recognizing, in policy and in practice, the right of all Native 
people to govern themselves.\17\ ``[S]elf-determination ensures 
the promise of Native self-sufficiency. It results in our 
continued ability to be productive and contribute to the well-
being of our families, our communities, and our great 
nation.''\18\ The steady growth of sustained economic 
development across the nation among Native governments is 
evidence that the federal policy of self-determination does 
work.\19\
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    \16\Native Hawaiian Government Reorganization Act: Legislative 
Hearing on S. 1011 Before the S. Comm. on Indian Affairs, 111th Cong. 
16 (Aug. 6, 2009) (statement of Haunani Apoliona, Chairperson, Board of 
Trustees, Office of Hawaiian Affairs).
    \17\Advancing the Federal-Tribal Relationship through Self-
Governance and Self-Determination: Oversight Hearing Before the S. 
Comm. on Indian Affairs, 112th Cong. (Sept. 20, 2012) (statement of D. 
Noelani Kalipi, President, TiLeaf Group).
    \18\Sen. Daniel K. Akaka, Address at the Alaska Federation of 
Natives Convention (Oct. 19, 2012).
    \19\Advancing the Federal-Tribal Relationship through Self-
Governance and Self-Determination: Oversight Hearing Before the S. 
Comm. on Indian Affairs, 112th Cong. (Sept. 20, 2012) (statement of D. 
Noelani Kalipi, President, TiLeaf Group).

          [A] growing number of [Native] nations have broken 
        out of the prevailing pattern of poverty. They have 
        moved aggressively to take control of their futures and 
        rebuild their nations, rewriting constitutions, 
        reshaping economies, and reinvigorating Indigenous 
        communities, cultures, and families. Today they are 
        creating sustainable, self-determined societies that 
        work in all dimensions--economic, social and 
        political.\20\
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    \20\Id. (quoting Stephen Cornell & Joseph P. Kalt, Two Approaches 
to the Development of Native Nations, One Works, the Other Doesn't, in 
Rebuilding Native Nations: Strategies For Governance and Development 1, 
6 (Miriam Jorgensen, ed., 2007)).

    Native people across the country have benefitted from the 
United States' policy of supporting self-determination and 
self-governance for its indigenous peoples. ``With a similar 
government-to-government relationship, Native Hawaiians could 
access the most powerful tools in federal law to perpetuate our 
culture and our traditions.''\21\
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    \21\Sen. Daniel K. Akaka, Speech at the Annual Native Hawaiian 
Convention (Aug. 25, 2011).
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Committee jurisdiction over American Indians, Alaska Natives and Native 
        Hawaiians

    This Committee has jurisdiction to study the unique 
problems of American Indian, Native Hawaiian, and Alaska Native 
people, and to propose legislation to alleviate these 
difficulties. These issues include, but are not limited to, 
Indian education, economic development, land management, trust 
responsibilities, health care, and claims against the United 
States. Additionally, most legislation proposed by Members of 
the Senate that specifically pertains to American Indians, 
Native Hawaiians, or Alaska Natives is under the jurisdiction 
of the Committee. This Committee has exercised jurisdiction 
over matters related to Native Hawaiians since it was organized 
in 1977. The Committee has concluded that the Native Hawaiian 
people are a distinctly Native community that fall within the 
scope of Congress's power to legislate with respect to ``Indian 
Tribes.''\22\
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    \22\U.S. Const. art. I, Sec. 8, cl. 3.
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Congressional authority over Indian affairs

    Since the founding of the United States, Congress has 
exercised a broad constitutional authority over Indian affairs 
while simultaneously recognizing the sovereignty possessed by 
the Native people as the original inhabitants of this nation 
who occupied and exercised dominion and control over the lands 
which eventually became the United States.\23\ ``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.'''\24\
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    \23\Delaware Tribal Business Council v. Weeks, 430 U.S. 73 (1977); 
United States v. Sioux Nation, 448 U.S. 371 (1980); U.S. v. Lara, 541 
U.S. 193, 203 (2004). Congress' plenary power over Indian affairs 
includes the power to recognize, terminate and restore the tribal 
status of Indian tribes. Lara, 541 U.S. at 201-2.
    \24\Lara, 541 U.S. at 200.
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    The Constitution vests Congress with the authority to 
address the conditions of the indigenous, Native people of the 
United States, and the Supreme Court has upheld this 
congressional authority under the Indian Commerce Clause,\25\ 
the Treaty Clause,\26\ the Supremacy Clause,\27\ the Property 
Clause,\28\ and the War Powers Clause.\29\ Congress may 
exercise its power to rationally promote the welfare of the 
Native people of the United States. ``These powers comprehend 
all that is required for the regulation of our intercourse with 
Indians.''\30\
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    \25\U.S. Const. art. I, Sec. 8, cl. 3. Congressional authority over 
Indian affairs does not emanate solely from the Commerce Clause's 
reference to ``Indian Tribes.'' Rather, the Constitution implicitly 
gives Congress the power to manage Indian affairs more generally. See, 
e.g., 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).
    \26\U.S. Const. art. II, Sec. 2, cl. 2.
    \27\U.S. Const. art. IV, Sec. 2.
    \28\U.S. Const. art. IV, Sec. 3, cl. 2.
    \29\U.S. Const. art. I, Sec. 8, cl. 11.
    \30\Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832).
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``Indians'' and ``tribes'': political and legal distinctions, not 
        cultural or racial designations

    American Indians, Alaska Natives, and Native Hawaiians are 
often generally referred to as ``Native Americans,'' and are 
cited in the Constitution as ``Indians'' or ``Indian 
Tribes.''\31\ As indigenous, or Native, peoples, American 
Indians, Alaska Natives, and Native Hawaiians have collective 
and individual rights under international and domestic law, 
including rights of self-determination and self-governance.
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    \31\Jon Van Dyke, The Political Status of the Native Hawaiian 
People, 17 Yale L. & Pol'y Rev. 95, 119 (1998). Just as there is no 
universally agreed-upon legal defmition of ``Indian,'' there is also no 
universal ``definition of what constitutes a Native nation, in part 
because each community defines itself differently and because the U.S. 
government in its relations with tribes has operated from conflicting 
sets of cultural and political premises across time.'' David E. Wilkins 
& Heidi Kiiwetinepinesiik Stark, American Indian Politics and the 
American Political System 3 (3d ed. 2011) (citing the Indian Self-
Determination Act of 1975, 25 U.S.C. Sec. 450e, which defines an Indian 
tribe as ``any Indian tribe, band, nation, or other organized group or 
community .  .  . which is recognized as eligible for the special 
programs and services provided by the United States to Indians because 
of their status as Indians.'') (citations omitted). See also Mashpee 
Tribe v. New Seabury Corp., 592 F.2d 575, 582 n.4 (1979) (``The scope 
of the phrase `Indian tribe' may vary from statute to statute.'') 
(citing United States v. Sandoval, 231 U.S. 28, 48-49 (1913)). 
``Although no universal definition exists, many statutes give 
definitions for purposes of particular laws, federal agencies like the 
Bureau of Indian Affairs (BIA) generate their own definitions, numerous 
courts have crafted definitions, and the term tribe is found--though 
not defined--in the Constitution's commerce clause.'' Wilkins & Stark, 
supra note 31, at 3. ``Federal law ordinarily uses the term `Indian 
tribe' to designate a group of native people with whom the federal 
government has established some kind of political relationship.'' 
Cohen's Handbook of Federal Indian Law 137 (2005 ed.).
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    Although the aboriginal tribes, nations, and peoples, over 
which Congress exercised its Indian affairs authority were 
defined in part by communities of common ancestry, the unique 
constitutional significance of such entities derives from their 
separate existence as independent political communities.\32\ 
Native people and groups were nations,\33\ and the relationship 
between the United States and its Native peoples reflected a 
political understanding between sovereigns. The Supreme Court 
has repeatedly made clear that Indian tribes are the political 
and familial heirs to ``once-sovereign political communities,'' 
and not ``racial group[s].''\34\ The Supreme Court has also 
repeatedly applied these concepts of ``Indian'' and ``tribe'' 
to a wide variety of Native American communities, recognizing 
both the constant evolution of Native communities and that the 
questions of whether and how to treat these evolving 
communities are ones assigned to Congress under the 
Constitution.\35\
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    \32\Worcester, 31 U.S. at 559.
    \33\See e.g., 42 U.S.C. Sec. 11701(1) (``The Congress finds that: 
Native Hawaiians comprise a distinct and unique indigenous people with 
a historical continuity to the original inhabitants of the Hawaiian 
archipelago whose society was organized as a Nation prior to the 
arrival of the first nonindigenous people in 1778.''). See also Native 
Hawaiian Government Reorganization Act of 2009: Legislative Hearing on 
S. 1011 Before the S. Comm. on Indian Affairs, 111th Cong. 66 (Aug. 6, 
2009) (statement of Steven Joseph Gunn, Attorney and Adjunct Professor 
of Law, Washington Univ. in St. Louis) (``In regard to the term Indian 
Tribe, it has been used synonymously or interchangeably with the term 
Indian Nation. [Alexander] Hamilton in Federalist 24 talked about 
regulating trade with Indian tribes and spoke of them as Indian 
nations. And [in] Worcester v. Georgia, Chief Justice Marshall talked 
about the words treaty and nation as being Anglo words of our choice, 
but clearly words that are applicable to Indian tribes.'') (citations 
omitted).
    \34\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); Elk v. Wilkins, 
112 U.S. 94, 109 (1884); 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).
    \35\Concerning Native American communities, the Court has held that 
``the questions whether, to what extent, and for what time they shall 
be recognized and dealt with as dependent tribes requiring the 
guardianship and protection of the United States are to be determined 
by Congress, and not by the courts.'' Sandoval, 231 U.S. at 46 
(citations omitted). For example, the Supreme Court approved Congress' 
tribal designation for the Pueblo Indians of New Mexico in 1913. Prior 
to the United States' acquisition of New Mexico, the Pueblo Indians 
were Mexican citizens. They became citizens of the United States 
through the Treaty of Guadalupe Hidalgo, U.S.-Mex., 9 Stat. 922, T.S. 
No. 207 (1848). ``The Court determined that the Pueblos fell with the 
scope of Congress' Indian commerce power and could be recognized as 
`Indians.''' Derek H. Kauanoe ` Breann Swann Nu`uhiwa, We Are Who We 
Thought We Were: Congress' Authority to Recognize a Native Hawaiian 
Polity United by Common Descent, 13 Asian-Pac. L. ` Pol'y J. 117, 150 
(2012) (citing Sandoval, 231 U.S. at 45-46). Decisions like these were 
noteworthy because the Pueblo Indians, once citizens of Mexico, had 
been already been declared ``non-Indians'' by the Court in 1877 because 
they differed in many respects from the concept of ``Indian tribe'' 
that prevailed at the time. Despite their differences, the Pueblo 
Indians lived in ``distinctly Indian communities'' and Congress acted 
properly under the Indian Commerce Clause in determining that they were 
``dependent communities entitled to its aid and protection, like other 
Indian tribes.'' See Sandoval, 231 U.S. at 46-47; United States v. 
Candelaria, 271 U.S. 432, 439, 442-43 (1926). The United States now 
regards Alaska Native groups as Indian tribes, despite earlier court 
holdings and Attorney General Opinions to the contrary. Kauanoe ` Swann 
Nu`uhiwa, supra note 35, at 150 (citations omitted). In 1978, the Court 
again recognized Congress' authority to create a reservation for the 
benefit of the Choctaw Indians in Mississippi, even though (1) they 
were ``merely a remnant of a larger group of Indians'' that had moved 
to Oklahoma; (2) ``federal supervision over them had not been 
continuous''; and (3) they had resided in Mississippi for more than a 
century and had become fully integrated into the political and social 
life of the State. United States v. John, 437 U.S. 634, 652-53 (1978). 
The Court deferred to Congress' determination that they were a ``tribe 
for the purposes of federal Indian law'' even though the tribe had only 
recently organized into a distinct Indian community. Id. at n. 20.
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    To the framers of the Constitution, an ``Indian tribe'' 
simply meant a distinct group of indigenous people with their 
diversity of unique cultures, languages and traditions--each 
with their own ways of governing themselves.\36\ ``The 
consistent use of these terms `Indian' and `tribe' results in 
the Federal Government treating all federally-recognized Native 
peoples equally, with the same tools to address the unique 
needs and priorities in their own communities.''\37\
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    \36\See Worcester, 31 U.S. (6 Pet.) at 519, 559, 583 (equating 
Indian tribe and Indian nation and defining ``nation'' as a ``people 
distinct from others'' and ``as being vested with rights which 
constitute them a state, or separate community''). The term ``Indian'' 
is often used interchangeably with ``aboriginal,'' yet ``[t]here is no 
single definition of the term Indian.'' Stephen L. Pevar, The Rights of 
Indians and Tribes: The Authoritative ACLU Guide to Indian and Tribal 
Rights 18 (3d ed. 2004)-(emphasis in original). ``In 1846, in a case 
called United States v. Rogers, the Supreme Court described Indian 
tribes as `aboriginal tribes of Indians.' In 1867, the United States 
enacted the Treaty of Cession with Russia, and it spoke of Alaska 
Natives and compared their treatment to that of the `aboriginal tribes' 
of the United States. So we have used the word Indian and aboriginal 
interchangeably, and clearly, Native Hawaiians are the aboriginal and 
Native peoples of the Hawaiian Islands.'' Native Hawaiian Government 
Reorganization Act of 2009: Legislative Hearing on S. 1011 Before the 
S. Comm. on Indian Affairs, 111th Cong. 66 (Aug. 6, 2009) (statement of 
Steven Joseph Gunn, Attorney and Adjunct Professor of Law, Washington 
Univ. in St. Louis) (citing United States v. Rogers, 45 U.S. (1 How.) 
567, 571 (1846)). See also William C. Canby, Jr., American Indian Law 
in a Nutshell 9 (5th ed. 2009) (```Indian' is another term the meaning 
of which varies according to the purpose for which the definition is 
sought.'') (citing Felix Cohen, Handbook of Federal Indian Law 2 
(1942)). The use of the term ``Indian'' is credited to Christopher 
Columbus when he wrongly called the indigenous people of the Bahamas 
archipelago ``Indians'' because he incorrectly believed he had 
discovered the East Indies. ``Believing he [Columbus] has discovered 
his conjectured shorter sea route to the Indies, he naturally calls the 
first people he encounters los Indios--Indians--and claims their island 
for the Spanish Crown. . . . `Regardless of whether Columbus thought he 
had landed among the East Indies or among islands near Japan or even 
elsewhere near the Asian continent, he would probably have used the 
same all-encompassing term for the natives, because India stood as a 
synonym for all of Asia east of the river Indus at the time and Indies 
was the broadest designation available for all the area he claimed 
under royal patent.'' Robert A. Williams, Jr., Savage Anxieties: The 
Invention of Western Civilization 181 (2012) (quoting Robert Berkhofer, 
Jr., The White Man's Indian: Images of the American Indian from 
Columbus to the Present 5 (1979)) (emphasis in original).
    \37\Sen. Daniel K. Akaka, Final Speech to the Native Hawaiian 
Convention (Oct. 5, 2012).

          The fact that they are from different regions of the 
        United States and speak different languages does not 
        change the fact that they are indigenous peoples with 
        whom the United States executed treaties, took lands 
        into trust on their behalf, and has a special 
        responsibility to promote their welfare through the 
        federal policy of self-governance and self-
        determination. The reference to native groups as 
        ``Indians'' or ``tribes'' is a reflection of their 
        status as indigenous peoples.\38\
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    \38\Advancing the Federal-Tribal Relationship through Self-
Governance and Self-Determination: Oversight Hearing Before the S. 
Comm. on Indian Affairs, 112th Cong. (Sept. 20, 2012) (statement of D. 
Noelani Kalipi, President, TiLeaf Group).

    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 plenary power to legislate with respect to Indian 
tribes.

Congressional authority to provide for the reorganization and 
        recognition of Indian tribes

    Congress has frequently enacted legislation that provides 
for the reorganization of Indian tribes 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.''\39\
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    \39\25 U.S.C. Sec. 476(a).
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    On numerous occasions, Congress has 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 measures 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 constitutions and bylaws to 
be voted on by the members in an election conducted by the 
Secretary.\40\ In addition, courts have relied on treaties or 
laws that promise to provide for tribal self-government,\41\ as 
well as statutes that prescribe in detail the structure and 
operation of tribal governments.\42\
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    \40\25 U.S.C. Sec. 711.
    \41\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'').
    \42\See Fletcher v. United States, 116 F.3d 1315, 1327 (10th Cir. 
1997) (discussing approving 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'').
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    Each of the 566 federally recognized tribes has had its own 
unique political history with the United States. ``While no 
Native political history is perfectly analogous to the 
political history of Native Hawaiians, it is also true that no 
Native political history is perfectly analogous to any other 
Native political history.''\43\ Despite their differences, each 
of these communities falls within the scope of Congress' 
authority.\44\
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    \43\Kauanoe ` Swann Nu`uhiwa, supra note 35, at 151.
    \44\See, e.g., United States v. Lara, 541 U.S. 193, 196 (2004) 
(``We must decide whether Congress has the constitutional power to 
relax restrictions that the political branches have, over time, placed 
on the exercise of a tribes' inherent legal authority. We conclude that 
Congress does possess this power.'').
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The federal trust responsibility to the Native Hawaiian people

    The trust doctrine is one of the most important principles 
in Federal Indian law.\45\ In treaties, Native nations 
relinquished certain rights in exchange for promises from the 
federal government. The trust responsibility is the Federal 
Government's obligation to honor those promises. This 
obligation is a legal one under which the United States ``has 
charged itself with moral obligations of the highest 
responsibility and trust'' toward Indian tribes.\46\ Since 
1831, the United States Supreme Court has recognized the 
existence of a trust relationship between the United States and 
Indian tribes.\47\ Over the past century, the Supreme Court has 
repeatedly reaffirmed this ``distinctive obligation of trust 
incumbent upon the Government'' in its dealings with 
Indians.\48\
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    \45\See, e.g., American Indian Policy Review Commission, 2 Final 
Report, Appendixes, and Index Submitted to Congress (1977) (``The 
purpose behind the trust is and always has been to ensure the survival 
and welfare of Indian tribes and people. This includes an obligation to 
provide those services required to protect and enhance Indian lands, 
resources, and self-government, and also includes those economic and 
social programs that are necessary to raise the standard of living and 
social well-being of the Indian people to a level comparable to the 
non-Indian society.'').
    \46\Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942).
    \47\This moral obligation was first discussed by Chief Justice John 
Marshall in Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831).
    \48\Seminole Nation, 316 U.S. at 296; see United States v. 
Mitchell, 463 U.S. 206, 225-26 (1983) (noting ``the undisputed 
existence of a general trust relationship between the United States and 
the Indian people'').
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    Nearly ``every piece of modern legislation dealing with 
Indian tribes contains a statement reaffirming the trust 
relationship between tribes and the Federal Government.''\49\ 
Within the framework of this trust relationship, Congress has 
enacted hundreds of statutes defining the contours of the 
United States' fiduciary responsibilities. Statutes, like 
treaties, can create a trust duty. As extensions of treaties, 
statutes are often the vehicles by which Congress creates the 
programs and services necessary to fulfill its treaty 
obligations.\50\
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    \49\Cohen, supra note 31, at 420-21.
    \50\Stephen L. Pevar, The Federal-Tribal Trust Relationship: Its 
Origin, Nature, and Scope 2-3 (2008) (``Many [statutes] give a federal 
agency elaborate control over tribal property, precluding the tribe 
from managing these resources on their own. The Supreme Court 
recognized in United States v. Mitchell, 463 U.S. 206 (1983), that when 
this arrangement occurs, the agency then has the fiduciary duty to 
manage that property wisely and in the tribe's best interests.'') 
(emphasis in original).
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    Native Hawaiians are the indigenous, Native people of 
Hawaii with whom the United States has a trust relationship. 
The terms ``Native Hawaiian,'' ``Hawaiian,'' and ``native 
Hawaiian'' are used interchangeably in numerous laws by 
federal, state, and local governments to refer to the 
indigenous people of Hawaii. Congress has consistently 
recognized its political, legal, and trust relationship with 
the Native Hawaiian people. In 1920, Congress began enacting 
laws to meet its trust responsibility to the Native Hawaiian 
people, beginning with passage of the Hawaiian Homes Commission 
Act (HHCA).\51\ Since passage of the HHCA, Congress has 
repeatedly recognized the distinct status of Native Hawaiians. 
For over 90 years, the United States has consistently 
interacted with Native Hawaiians based on the same political 
and legal relationship it has maintained with all America's 
Native peoples.
---------------------------------------------------------------------------
    \51\42 Stat. 108 (1921). This Act is now part of Hawaii's State 
Constitution. See Haw. Const. art. XII.
---------------------------------------------------------------------------
    The United States has acknowledged this relationship and 
its duty to the Native Hawaiian people, and in fact has 
codified its duty by enacting over 150 statutes.\52\ Pursuant 
to its authority under the Constitution, Congress has included 
Native Hawaiians in numerous laws enacted to benefit other 
Native peoples in the United States and, in other statutes, has 
established separate programs specifically for Native 
Hawaiians, including. the Native Hawaiian Education Act and the 
Native Hawaiian Health Care Improvement Act.\53\ The findings 
in both of these acts specifically refer to the existence of a 
trust relationship between the Native Hawaiian people and the 
United States. By enacting hundreds of statutes and other 
actions, the Federal Government has assumed the special 
responsibilities of a trust relationship toward Native 
Hawaiians--as it has for American Indians and Alaska Natives.
---------------------------------------------------------------------------
    \52\Van Dyke, supra note 31, at 106 (noting that the following laws 
are among those that classify Native Hawaiians as Native Americans and 
include them in Native American benefit programs: the National Historic 
Preservation Act Sec. 4006(a)(6), 16 U.S.C.A. Sec. 470a(d)(6); the 
National Museum of the American Indian Act Sec. Sec. 1-10, 13, 16, 20 
U.S.C. Sec. Sec. 80q-80q-12, 80q-15 (1994); the Drug Abuse Prevention, 
Treatment and Rehabilitation Act Sec. 4106(d), 21 U.S.C. Sec. 1177(d) 
(1994); Native American Languages Act, 25 U.S.C. Sec. Sec. 2901-2912 
(1994); the Workforce Investment Act of 1998 Sec. 166, 29 U.S.C.A. 
Sec. 2911 (West Supp. 1998); the American Indian Religious Freedom Act, 
42 U.S.C. Sec. 1996 (1994); the Native American Programs Act of 1974, 
42 U.S.C. Sec. Sec. 2991-2992 (1994); the Comprehensive Alcohol Abuse 
and Alcoholism Prevention, Treatment, and Rehabilitation Act 
Sec. 311(c)(4), 42 U.S.C. Sec. 4577(c)(4) (1994). For a sampling of 
other recent laws aimed at benefiting Native Hawaiians economically and 
culturally, see, for example, 20 U.S.C.A. Sec. 4441 (West Supp. 1998); 
20 U.S.C.A. Sec. 7118 (West Supp. 1998); the Native Hawaiian Education 
Act, 20 U.S.C.A. Sec. Sec. 7901-7912 (West Supp. 1998); the Native 
American Graves Protection and Repatriation Act, 25 U.S.C. Sec. 3001-
3013 (1994); 42 U.S.C. Sec. 254s (1994); the Native Hawaiian Health 
Care Improvement Act of 1992, 42 U.S.C. Sec. Sec. 11701-11714 (1994); 
the Cranston-Gonzalez National Affordable Housing Act Sec. 958, Pub. L. 
No. 101-625, 104 Stat. 4079, 4422 (1990). See also, Native Hawaiian 
Education Act Sec. 9212, 20 U.S.C.A. Sec. 7912(1) (West Supp. 1998); 
National Museum of the American Indian Act Sec. 16(11), 20 U.S.C. 
Sec. 80q-14(11) (1994); Native American Graves Protection and 
Repatriation Act Sec. 2(10), 25 U.S.C. Sec. 3001(10) (1994)).
    \53\Native Hawaiian Education Act, 20 U.S.C. Sec. Sec. 7511-7517; 
Native Hawaiian Health Care Improvement Act, 42 U.S.C. Sec. Sec. 11701-
11714.
---------------------------------------------------------------------------
    The struggles of Native Hawaiians to protect their rights 
as an indigenous people, and secure a land and natural resource 
base to exercise those rights, echo the historic struggle of 
all Native Americans. As a result, in the early 1970s, Congress 
began to include Native Hawaiians in statutes establishing 
programs designed to provide services for American Indians and 
Alaska Natives. Native Hawaiians are included in over 150 
congressional acts providing assistance to Native people for 
health, housing, welfare, and education often on an equal basis 
with that provided to members of federally-recognized Indian 
tribes. That Congress has included Native Hawaiians in 
legislation promulgated primarily for the benefit of American 
Indians, in addition to enacting legislation solely for the 
benefit of Native Hawaiians is evidence of a continuing 
guardian-ward relationship between Native Hawaiians and the 
Federal Government. Congress enacted these 150 laws in order to 
carry out its responsibility to protect Native Hawaiian rights, 
address Native Hawaiian concerns, and provide resources to meet 
the needs of the Native Hawaiian people.\54\
---------------------------------------------------------------------------
    \54\There are also 12 statutes that specifically require the 
Federal Government to consult with Native Hawaiian organizations in 
carrying out its trust responsibility. Infra notes 171 & 172.
---------------------------------------------------------------------------
    Despite these explicit inclusions and congressional 
actions, Native Hawaiians are still not included in statutes 
that advance self-determination and provide a meaningful right 
to exercise self-governance. Although there are historical 
distinctions that separate Native Hawaiians from other Native 
Americans, none of these differences adequately explain the 
Federal Government's failure to assume responsibility for the 
protection of Native Hawaiian people, their land, and their 
political status. Native Hawaiians remain the only major group 
of Native Americans with whom the nation has not reconciled 
historic claims.\55\
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    \55\Bethany R. Berger, Reconciling Equal Protection and Federal 
Indian Law, 98 Cal. L. Rev. 1165, 1194 (2010). ``A closer examination 
of the historical context, however, shows that the denial of Native 
Hawaiian sovereignty and property followed the familiar process of 
treating indigenous peoples as a race in need of reformation rather 
than a polity with political rights. Measures that seek to restore a 
portion of what this racialization took away should not falter under 
the guise of equal protection.'' Id.
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    Many programs administered by the Bureau of Indian Affairs 
(BIA) are premised on the existence of a tribal government that 
exercises powers of self-governance. Because the Native 
Hawaiian government was illegally overthrown with the 
participation of the United States, the Native Hawaiian people 
were divested of their ability to be self-governing. ``As a 
result of these actions by the United States--its participation 
in the overthrow and its ultimate annexation of Hawaii--the 
United States was instrumental in depriving Native Hawaiians of 
their sovereignty and their national lands.''\56\ The Native 
Hawaiian people have a great need for these BIA programs, but 
cannot take advantage of them because the Native Hawaiian 
people no longer have a centralized governmental entity with 
which the BIA can consult.\57\
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    \56\Hawaiian Homeownership Act of 2011: Oversight Field Hearing on 
S. 65 Before the S. Comm. on Indian Affairs, 112th Cong. (Apr. 13, 
2012) (statement of Melody Mackenzie, Associate Professor of Law and 
Director of Ka Huhi Ao Center for Excellence in Native Hawaiian law at 
University of Hawaii, Richardson School of Law).
    \57\History, Jurisdiction, and a Summary of Legislative Activities 
of the S. Select Comm. on Indian Affairs, 95th Cong. 24 (1977-1978). 
However, just as tribes have been able to maintain a trust relationship 
with the Federal Government through tribal councils or similar 
governing bodies, Native Hawaiians have been able to maintain this 
relationship through their homestead associations. Homestead 
associations have been vital to the implementation of the HHCA as 
Congress intended. ``[S]elf-determination and self-governance is [sic] 
expressed through the existence of organizations governed by 
beneficiaries [of the HHCA] or homesteaders themselves. These homestead 
associations have existed for decades, and have representative 
leadership through democratically elected processes for each homestead 
land area on different islands within the state.'' Hawaiian 
Homeownership Act of 2011: Oversight Field Hearing on S. 65 Before the 
S. Comm. on Indian Affairs, 112th Cong. (Apr. 13, 2012) (statement of 
Michelle Kauhane, Deputy Director, State of Hawaii, Department of 
Hawaiian Home Lands).
---------------------------------------------------------------------------
    Although the United States has applied the same federal 
policies, and many of the same federal laws, to the Native 
Hawaiian people as it has applied to other Native Americans, it 
has not permitted the Native Hawaiian people to become an 
organized, self-governing people. As a result, Native Hawaiians 
continue to suffer the consequences of the illegal overthrow of 
their indigenous government.

Self-governance: an element of the federal trust responsibility

    The situation in Indian country within the United States 
paralleled the colonial expansion occurring abroad.\58\ 
Initially the idea was to remove Indians to the West--outside 
of the settled states. As the non-Indian settlement reached the 
central continent and began the migration toward California and 
the Pacific Northwest, the logistics of relocating tribes 
outside of state boundaries became increasingly 
problematic.\59\
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    \58\Robert N. Clinton, There is No Federal Supremacy Clause for 
Indian Tribes, 34 Ariz. St. L.J. 113, 164-65 (2002). ``This was the 
period in which the United States acquired Cuba and the Philippines 
through the Spanish-American War, engaged in gunboat diplomacy in the 
Caribbean basin and Latin America, acquired the rights to build the 
Panama Canal by taking Panama away from Columbia, and overthrew the 
internationally-recognized indigenous monarchy of the Republic of 
Hawaii, ultimately annexing Hawaii to the United States. In short, it 
was the period when the American will toward empire reached its peak. 
During this period, in order to justify the expanding American colonial 
empire, both the political branches and the federal judiciary virtually 
ignored the constitutional principles upon which the nation was 
founded. Yet, the colonial expansion of American authority continued to 
raise thorny constitutional problems that the Supreme Court could not 
easily resolve by resorting to the first principles of the United 
States Constitution. Ultimately, it gave up trying.'' Id. at 164 
(citations omitted).
    \59\Id. at 164-65.

          As a nation we have changed course many times in the 
        policies governing our dealings with Native people. We 
        began with treaties with Native people, and then we 
        turned to war. We enacted laws recognizing Native 
        governments, and then we passed laws terminating our 
        relationships with those governments. We repudiated our 
        termination policy and restored our relationships with 
        Native governments. Finally for the last 39 years we 
        adopted a policy of recognizing and supporting the 
        rights of this nation's First Americans to self-
        determination and self-governance.\60\
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    \60\Native Hawaiian Government Reorganization Act: Legislative 
Hearing on S. 1011 Before the S. Comm. on Indian Affairs, 111th Cong. 5 
(Aug. 6, 2009) (statement of Senator Daniel K. Inouye).

    After more than a century of failed efforts to improve the 
lives of America's indigenous people, the only strategy that 
has worked is the federal promotion of tribal self-government, 
known as the policy of ``self-determination.''\61\ Self-
determination is about improving the well-being of the 
indigenous people in the United States, the ``poorest and, 
arguably, historically most oppressed and disempowered 
people.''\62\
---------------------------------------------------------------------------
    \61\Stephen Cornell & Joseph P. Kalt, American Indian Self-
Determination: The Political Economy of a Successful Policy 13 (Joint 
Occasional Papers on Native Affairs (JOPNA) Working Paper No. 1, 2010).
    \62\Id. at 14.
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    The federal policy of self-determination recognizes the 
distinctive cultural, political, and economic rights of all 
Native nations, and encourages the political autonomy of those 
Native nations. Despite its blemished treaty rights record, the 
United States has shown an ongoing belief in the validity of 
treaties and agreements by maintaining federal policies that 
affirm nation-to-nation relationships; enacting federal laws 
that support tribal self-governance and tribal judicial 
systems; issuing judicial decisions that recognize the inherent 
sovereignty of all Native Americans; and by presidential 
actions that carve out a path for positive intergovernmental 
relations. Self-determination is more than a guiding principle; 
it is a full-fledged right of all peoples that can be invoked 
by its holders to claim their inherent sovereignty.
    Since his first day in office, President Obama has worked 
to strengthen the government-togovernment relationship between 
the United States and Native governments in order to improve 
the quality of life for all Native Americans, including Native 
Hawaiians.\63\ The President and his Administration have made 
tremendous progress addressing major concerns in Indian 
country.\64\ In 2009, the President signed a memorandum 
directing federal agencies to fully implement Executive Order 
13175, ``Consultation and Coordination with Tribal 
Governments.'' In 2010, in response to calls from many tribal 
leaders, President Obama announced the United States' support 
of the United Nations Declaration on the Rights of Indigenous 
Peoples (Declaration).\65\ The Declaration was initiated in 
1976, primarily by American Indian leaders who ``turned to the 
international community principally because of the longstanding 
failure of the United States courts and federal law to 
recognize that Indian nations and other [N]ative peoples in 
this country are entitled to constitutional rights and to 
equality before the law.''\66\ The Declaration includes 
numerous references to the right of indigenous peoples to 
continue their languages, cultures, and traditions. Support of 
the Declaration by the United States goes hand-in-hand with the 
United States' commitment to address the consequences of the 
history of Native American people. As President Obama 
recognized, ``few have been more marginalized and ignored by 
Washington for as long as Native Americans--our First 
Americans.''\67\
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    \63\The Obama Administration supports S. 675. See Announcement of 
U.S. Support for the United Nations Declaration on the Rights of 
Indigenous Peoples: Initiatives to Promote the Government-to-Government 
Relationship & Improve the Lives of Indigenous Peoples 4 (Dec. 9, 
2010). Other proponents that have expressed strong support for the 
Native Hawaiian Government Reorganization Act include Attorney General 
Eric Holder, Interior Secretary Ken Salazar, Interior Assistant 
Secretary Kevin Washburn, the current Governor of Hawaii, Neil 
Abercrombie, the entire Hawaii congressional delegation, the Hawaii 
State Office of Hawaiian Affairs, the American Bar Association and the 
National Congress of American Indians.
    \64\This includes improving the quality of care offered by the 
Indian Health Service (IHS) by signing into law the Affordable Care 
Act, Pub. L. No. 111-148, 124 Stat. 119 (2010); promoting economic 
development in Indian country by providing more than $3 billion through 
the Recovery Act, Pub. L. No. 111-5, 123 Stat. 115 (2009), to help 
tribal communities renovate schools on reservations, spur job creation 
in tribal economies, improve housing and energy efficiency, and support 
health facilities and policing services; and making tribal communities 
safer through the Tribal Law and Order Act (TLOA), Pub. L. No. 111-211, 
124 Stat. 2258 (2010).
    \65\G.A. Res. 61/295, U.N. GAOR, 61st Sess., Supp. No. 49, U.N. 
Doc. 07-58681 (Oct. 2, 2007).
    \66\Setting the Standard: Domestic Policy Implications of the U.N. 
Declaration on the Rights of Indigenous Peoples: Oversight Hearing 
Before the S. Comm. on Indian Affairs, 112th Cong. 13-14 (June 9, 2011) 
(statement of Robert T. Coulter, Executive Director, Indian Law 
Resource Center) (noting that the conditions that gave rise to the 
Declaration have not improved and Native nations in this country 
continue to live with a system of Federal law that is unconstitutional, 
discriminatory, and unworkable, analogous to the ``separate but equal'' 
legal doctrine). ``Congress should embrace the Declaration, because it 
is American. It is based on American values. It is American in its 
origin.'' Id. at 14.
    \67\Remarks by President Obama during the Opening of the Tribal 
Nations Conference & Interactive Discussion with Tribal Leaders (Nov. 
5, 2009).
---------------------------------------------------------------------------
    ``It is time for the United States to give [Native 
Hawaiians] access to its best policies on Native peoples, not 
just the legacies of the worst ones.''\68\ The federal 
reaffirmation of Native Hawaiian sovereignty, acknowledged 
through the same self-governance programs that have enabled 
other tribes to generate revenues through their own business 
enterprises, operate court and effective law enforcement 
systems, and design school curricula to better meet the needs 
of Native students, would do the same for the Native Hawaiian 
people. The federal policy of self-determination has enabled 
Native nations to build strong economies, reverse decades of 
culture and language loss, and to tailor programs and services 
to better meet the needs of their people.\69\
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    \68\Advancing the Federal-Tribal Relationship through Self-
Governance and Self-Determination: Oversight Hearing Before the S. 
Comm. on Indian Affairs, 112th Cong. (Sept. 20, 2012) (statement of 
Sen. Daniel K. Akaka, Chairman, S. Comm. on Indian Affairs) (noting how 
``self-determination and self-governance has proven to be the only 
federal policy that has worked for Native communities'').
    \69\Id.
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Congress' commitment to parity among all Native Americans

    Congress enunciated its policy of parity in the federal 
treatment of Native nations when it amended the IRA in 1994 in 
order to prohibit the Federal Government and its agencies from 
taking any action that ``classifies, enhances, or diminishes 
the privileges and immunities available to the Indian tribe 
relative to other federally recognized tribes by virtue of 
their status as Indian tribes.''\70\ Signed into law by 
President Clinton on May 31, 1994, the amendments overruled 
prior practices of classifying tribes based on date of their 
date of recognition or manner of recognition.\71\ Congress made 
it clear that ``if a tribe is federally recognized, they 
possess the full panoply of powers of sovereign Indian tribes 
unless specifically divested by treaty or Congressional 
action.''\72\ ``Tribe'' was thus defined to include all 
federally recognized tribes in all federal statutes affecting 
Indian tribal governments.\73\
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    \70\Pub. L. No. 103-263, 108 Stat. 707 (codified at 25 U.S.C. 
Sec. 476(f)-(g)).
    \71\Memorandum from John D. Leshy, Solicitor, Office of the 
Solicitor, U.S. Dep't of the Interior, to Ada E. Deer, Assistant 
Secretary, Office of Indian Affairs, U.S. Dep't of the Interior 3 (July 
13, 1994).
    \72\The Indian Reorganization Act--75 Years Later: Renewing Our 
Commitment to Restore Tribal Homelands and Promote Self-Determination: 
Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 45 
(statement of Steven J.W. Heeley, Policy Consultant, Akin, Gump, 
Strauss, Hauer & Feld, LLP (noting also that this ``artificial 
distinction represents a significant departure from the Congressional 
intent and purpose of the IRA and is reminiscent of the very policies 
of assimilation that the IRA was intended to address'')). ``Subsequent 
amendments to the IRA also addressed the category of tribes that chose 
not to . . . organize under IRA constitutions, and to make clear that 
federally recognized Indian tribes had the right to not adopt an IRA 
constitution if they so chose.'' Id. at 46. See also H.R. Rep. No. 103-
781 at 3 (1994) as reprinted in 1994 USCCAN 3768.
    \73\Leshy, supra note 71, at 3-7 (citing the broad defmition of 
``tribe'' in the Indian Civil Rights Act of 1968, 25 U.S.C. 
Sec. 1301(1): ``any tribe, band, or other group of Indians subject to 
the jurisdiction of the United States and recognized as possessing 
powers of self-government''). In his memorandum, Leshy also notes the 
broad defmition of ``tribe'' in many other federal statutes, including, 
Indian Land Consolidation Act, 25 U.S.C. Sec. 2201(1); the Indian Child 
Welfare Act, 25 U.S.C. Sec. 1903(8); the Indian Self-Determination and 
Education Assistance Act, 25 U.S.C. Sec. 450b(e); and the Indian Child 
Protection and Family Violence Prevention Act, 25 U.S.C. Sec. 3202(10).
---------------------------------------------------------------------------
    The 1994 amendments to the IRA put an end to the 
discriminatory practices that had been developing within the 
Department of the Interior (DOI).\74\ DOI began to classify 
tribes as either ``historic,'' and entitled to the full panoply 
of inherent sovereign powers not otherwise divested by treaty 
or congressional action, or ``created,'' and therefore 
possessing limited sovereign powers.\75\ By enacting the 1994 
amendments and broadening the definition of ``tribe'' in 
federal statutes, Congress explicitly rejected DOI's 
classifications.\76\ The amendments ensured that DOI, as well 
as all other federal agencies, upheld the original intent of 
the IRA to promote tribal sovereignty by allowing all federally 
recognized tribes to organize and self-govern.\77\
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    \74\The Indian Reorganization Act--75 Years Later: Renewing Our 
Commitment to Restore Tribal Homelands and Promote Self-Determination: 
Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 35-41 (June 
23, 2011) (testimony of Steven Heeley, Policy Consultant, Akin, Gump, 
Strauss, Hauer & Feld, LLP (citing 25 U.S.C. Sec. 476(f) and noting 
that DOI's practice came to light when the Pascua Yaqui Nation of 
Arizona made efforts to amend their tribal constitution)). ``Strangely, 
although the Department was apparently making this distinction amongst 
tribes, it appears that the Department never notified the affected 
tribes or the Congress of their new status. Had they done so, we would 
have acted to correct this unauthorized arbitrary and unreasonable 
differentiation of tribal status long ago. . . . [O]ur amendment would 
void any past determination by the Department that an Indian tribe is 
created and would prohibit any such determinations in the future. . . . 
[O]ur amendment will correct any instance where any federally 
recognized Indian tribe has been classified as `created' and that it 
will prohibit such classifications from being imposed or used in the 
future. Our amendment makes it clear that it is and has always been 
Federal law and policy that Indian tribes recognized by the Federal 
Government stand on an equal footing to each other and to the Federal 
Government.'' 140 Cong. Rec. S6147 (daily ed. May 19, 1994) (statement 
of Sen. Daniel K. Inouye (D-Hawaii) (emphasis added).
    \75\``Such an artificial distinction represent[ed] a significant 
departure from the Congressional intent and purpose of the IRA and 
[was] reminiscent of the very policies of assimilation that the IRA was 
intended to address. . . . In enacting Public Law 103-263 [the 1994 IRA 
amendments], Congress rejected the artificial distinction of historic 
and created tribes and made clear that any regulation, rule or 
administrative decision that classifies, enhances or diminishes the 
privileges and immunities available to a federally recognized tribe 
relative to other tribes shall have no force and effect.'' The Indian 
Reorganization Act--75 Years Later: Renewing Our Commitment to Restore 
Tribal Homelands and Promote Self-Determination: Hearing Before the S. 
Comm. on Indian Affairs, 112th Cong. 36 (testimony of Steven Heeley, 
Policy Consultant, Akin, Gump, Strauss, Hauer & Feld, LLP (citing 25 
U.S.C. Sec. 476(0)).
    \76\Leshy, supra note 71, at 7. Leshy also noted that the 1994 
amendments to the IRA were not ``confined to the IRA,'' but were 
``intended to address all instances where such categories or 
classifications of Indian tribes have been applied and any statutory 
basis which may have been used to establish, ratify, or implement the 
categories or classifications.'' Id. at 3, n.3 (quoting 140 Cong. Rec. 
S6147 (daily ed. May 19, 1994) (statement of Sen. John McCain)).
    \77\Sen. Daniel K. Inouye (D-Hawaii), who co-sponsored the 
legislation, told Congress that ``The amendment which we are offering . 
. . will make it clear that the Indian Reorganization Act does not 
authorize or require the Secretary to establish classifications between 
Indian tribes. . . . [I]t is and has always been Federal law and policy 
that Indian tribes recognized by the Federal Government stand on an 
equal footing to each other and to the Federal Government. . . . Each 
federally recognized Indian tribe is entitled to the same privileges 
and immunities as other federally recognized tribes and has the right 
to exercise the same inherent and delegated authorities. This is true 
without regard to the manner in which the Indian tribe became 
recognized by the United States or whether it has chosen to organize 
under the IRA. By enacting this amendment . . ., we will provide the 
stability for Indian tribal governments that the Congress thought it 
was providing 60 years ago when the IRA was enacted.'' 140 Cong. Rec. 
S6147 (daily ed. May 19, 1994).
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Native Hawaiian self-governance: a brief history

    The Hawaiian Islands were isolated from outside contact for 
centuries before 1778, when the British explorer Captain James 
Cook arrived. The Native Hawaiian people were an independent, 
self-governing society long before contact with Europeans and 
Americans.\78\ The Native Hawaiian people thrived in a ``highly 
organized, self-sufficient, subsistent social system based on 
communal land tenure with a sophisticated language, culture, 
and religion.''\79\
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    \78\The history of Native Hawaiian self-governance forms the 
foundation for the exercise of self-governing authority by Native 
Hawaiians today, originating from the sovereignty exercised by Native 
Hawaiians prior to European and American suppression of that authority. 
In federal law, this is known as ``inherent sovereignty.'' See United 
States v. Wheeler, 435 U.S. 313, 320, 322-23 (1978).
    \79\Jon M. Van Dyke, supra note 31, at 95 (quoting Joint Resolution 
to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow 
of the Kingdom of Hawaii, Pub. L. 103-150, 107 Stat. 1510, 1510 (1993) 
[hereinafter Apology Resolution]). The Senate passed the Apology 
Resolution on Oct. 27, 1993, the House passed it on Nov. 15, 1993, and 
President Clinton signed it on Nov. 23, 1993. A joint resolution is 
passed by a simple majority in both houses of Congress and is signed by 
the President.
---------------------------------------------------------------------------
    High chiefs (ali`nui) controlled a district of an island or 
an entire island. Local chiefs (ali`i) controlled specific 
lands or resources (konohiki), and commoners (maka`ainana) 
worked the land for the benefit of all. Lands were divided into 
parcels enclosed by boundaries that radiated from a point on a 
mountain top to the sea. The parcel was known as an ahupua `a, 
an economically self-sufficient tract of land, which included 
farmland, forest resources, fresh water, and access to the sea. 
The lands were held in common for the benefit of all. By 1810, 
not long after the first European contact, King Kamehameha I 
unified the Hawaiian Islands. The unified Hawaiian Kingdom 
preserved the communal land tenure system and created a 
centralized governmental with which foreign governments could 
interact.
    In 1840, acting on the advice of westerners, King 
Kamehameha III promulgated the first written constitution of 
the Hawaiian Kingdom. The constitution established the Hawaiian 
monarchy and declared that the monarchy controlled the land for 
the benefit of the chiefs and the commoners, who owned the land 
collectively.\80\ Following this formal declaration clarifying 
land ownership in the kingdom was the ``Great Mahele'' of 1848, 
authorizing the monarchy to divide lands between the king, the 
government, the ali`i (chiefs), and the common people, in order 
to determine, and ultimately transfer, clear title. Although 
the Great Mahele created, for the first time in Hawaii's 
history, an opportunity for private ownership of land, 
ownership was subject to the right of Native tenancy by those 
who had customarily used and occupied the lands.
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    \80\``The origin of the present government, and system of polity, 
is as follows: Kamehameha I, was the founder of the kingdom, and to him 
belonged all the land from one end of the Islands to the other, though 
it was not his own private property. It belonged to the chiefs and 
people in common, of whom Kamehameha I was the head, and had the 
management of the landed property. Wherefore, there was not formerly, 
and is not now any person who could or can convey away the smallest 
portion of land without the consent of the one who had, or has the 
direction of the kingdom.'' The First Constitution of Hawaii in The 
Fundamental Law of Hawaii 10, 12 (Lorrin A. Thurston ed., 1904).
---------------------------------------------------------------------------
    Of the approximate 4 million acres in the islands of 
Hawaii, the King, through the Great Mahele, reserved 1 million 
acres for himself and his royal successors, known as ``crown 
lands''; 1.5 million acres were designated as ``government 
lands'';\81\ and the other 1.5 million acres were given to the 
King's chiefs, for use by the common people, and became known 
as ``konohiki lands.''
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    \81\In re Estate of Kamehameha, 2 Haw. 715, 725-6 (1864). The land 
considered government and crown lands eventually became the basis for a 
land trust for Native Hawaiians. See Newlands Resolution, J. Res. 55, 
July 7, 1898, Sec. 1, 30 Stat. 750 and the Admissions Act of 1959, Pub. 
L. No. 86-3, 73 Stat. 4 (1959).
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The political relationship between the Kingdom of Hawaii and the United 
        States

    The United States ratified more than 365 Indian treaties 
from 1777 until 1871. These treaties evidence the government-
to-government relationships between the tribes and the United 
States.\82\ Under the Constitution of the United States, United 
States courts are bound by treaties made under the authority of 
the United States and by customary international law.\83\ 
Although the United States has never treated the governments of 
its indigenous peoples as equal governments, it has treated 
them as governments.
---------------------------------------------------------------------------
    \82\Documents of United States Indian Policy 84 (Francis Prucha, 
ed. 2000) (noting that the Fort Laramie Treaty of September 17, 1851 
refers to the United States and the Sioux [signatories of the treaty] 
as ``the aforesaid nations'').
    \83\``This Constitution, and the laws of the United States which 
shall be made in pursuance thereof; and all treaties made, or which 
shall be made, under the authority of the United States, shall be the 
supreme law of the land; and the judges in every state shall be bound 
thereby, anything in the Constitution or laws of any State to the 
contrary notwithstanding.'' U.S. Const. art. VI.
---------------------------------------------------------------------------
    As the United States expanded westward, treaties became the 
primary vehicle for acquiring Indian lands. For the United 
States, treaties with America's indigenous peoples were tools 
for diplomacy and acquiring land. For the American Indians, 
Alaska Natives, and Native Hawaiians, treaties were about 
establishing peace and friendship and preserving their tribal 
sovereignty over their homelands.\84\ The United States 
considered the Hawaiian Islands vital to the protection of its 
interests and power in the Pacific. Treaty relations 
increasingly focused on assuring commercial and military 
access. ``Throughout the nineteenth century, the United States 
recognized the independence of the Kingdom of Hawaii; extended 
full and complete diplomatic recognition to the Hawaiian 
government; and entered into treaties and conventions with the 
Hawaiian monarchs to govern commerce and navigation in 1826, 
1842, 1849, 1875, and 1887.''\85\ These five treaties 
represented official recognition of sovereign status; the 
relationship between the Hawaiian Government and the Federal 
Government was considered to be one between sovereigns. On 
December 30, 1842, President Tyler officially recognized Hawaii 
as an independent nation and declared a policy of maintaining 
Hawaiian independence. In recognition of its independence, 
Congress provided an appropriation for the appointment of a 
United States minister to Hawaii, and in 1848, President Tyler 
assigned a minister to Hawaii.\86\
---------------------------------------------------------------------------
    \84\Compare, e.g., U.S. Treaty with the Hawaiian Islands in 1849 
with the United States' Treaty with the Wyandot, 7 Stat. 49 (Aug. 3, 
1795). The early treaties with the Native Hawaiians, like the treaties 
the United States entered into with the mainland Indian tribes during 
the same period, included a provision that declared perpetual peace and 
friendship. These treaties, in actuality, often provided the United 
States commercial gain while offering no real benefits to the native 
people. 3 Treaties and Other International Acts of the United States of 
America 269-272 (Hunter Miller ed. 1933).
    \85\Jon M. Van Dyke & Melody K. MacKenzie, An Introduction to the 
Rights of the Native Hawaiian People, 10-Jul. Haw. B. J. 63, 63 (July 
2006) (citing Apology Resolution, Pub. L. No. 103-150, 107 Stat. 1510 
(1993)). Between 1839 and 1852 Hawaii received formal recognition as a 
sovereign, independent national from the United States and nearly every 
major European nation. See Ralph S. Kuykendall, I The Hawaiian Kingdom 
1-11 (1967) (citations omitted).
    \86\5 Stat. 643 (1843).
---------------------------------------------------------------------------
    From the beginning of its relations with Hawaii, the United 
States sought to ``prevent the absorption of Hawaii or the 
political control of that country by any foreign power.''\87\ 
While the treaties did offer Hawaii advantageous trade 
relations with the United States, ``the United States has so 
far interfered with the internal policy of Hawaii as to secure 
an agreement from that Government restricting the disposal of 
bays and harbors and the crown lands to other countries, and 
has secured exclusive privileges in Pearl Harbor of great 
importance to this Government.''\88\ By the late-1800s, the 
United States had come to view Hawaii as part of the American 
system and efforts by another foreign power to colonize the 
islands would have been regarded as acts of war against the 
United States.\89\
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    \87\S. Rep. No. 227, at 20 (1894). ``Without stating the reasons 
for this policy, which included very important commercial and military 
considerations, the attitude of the United States toward Hawaii was in 
moral effect that of a friendly protectorate. It has been a settled 
policy of the United States that if it should turn out that Hawaii, for 
any cause, should not be able to maintain an independent government, 
that country would be encouraged in its tendency to gravitate toward 
political union with this country.'' Id.
    \88\S. Rep. No. 227, at 21-22 (1894).
    \89\``It is known and felt by the Hawaiian Government and people 
that their Government and institutions are feeble and precarious; that 
the United States, being so near a neighbor, would be unwilling to see 
the islands pass under foreign control. Their prosperity is continually 
disturbed by expectations and alarms of unfriendly political 
proceedings, as well from the United States as from other foreign 
powers. Their prosperity is continually disturbed by expectations and 
alarms of unfriendly political proceedings, as well from the United 
States as from other foreign powers. A reciprocity treaty, while it 
could not materially diminish the revenues of the United States, would 
be a guaranty of the good will and forbearance of all nations until the 
people of the islands shall of themselves, at no distant day, 
voluntarily apply for admission into the Union.'' President Andrew 
Johnson, Fourth Annual Message to the Congress (Dec. 9, 1868). See also 
Letter from John L. Stevens, United States Minister to Hawaii, to John 
W. Foster, Secretary of State (Nov. 20, 1892) (in Papers Relating to 
the Annexation of The Hawaiian Islands to the United States 184, 189 
(1893) (``To postpone American action many years is only to add to 
present unfavorable tendencies and to make future possession [of 
Hawaii] more difficult.'')); Henry Cabot Lodge, Republican Senator from 
Massachusetts, Our Blundering Foreign Policy, in 19 The Forum 8, 16 
(Mar.-Aug. 1895) (Mr. Lodge later became Chairman of the Senate Foreign 
Relations Committee (1919-1924)) (``[F]or the sake of our commercial 
supremacy in the Pacific we should control the Hawaiian Islands . . . 
.'').
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The United States' illegal overthrow of the Kingdom of Hawaii allowed 
        for Hawaii's annexation

    In 1887, an opposition group of mostly Americans pressed 
for the adoption of a constitution that would reduce the king 
to a ceremonial figurehead.\90\ King Kalakaua, in power at the 
time, unsuccessfully sought the protection of the United States 
from this powerful group. The opposition used the threat of 
violence to force King Kalakaua to accept a new constitution 
that stripped the monarchy of executive powers and replaced his 
cabinet with members of the opposition group. The new 
constitution, signed by King Kalakaua under duress, became 
known as the Bayonet Constitution, and it effectively 
disenfranchised most Native Hawaiian voters.\91\
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    \90\This group was a party of haole (``white'') businessmen that 
was distrustful of King Kalakaua, even though he signed a reciprocity 
treaty with the United States making it possible for sugar to be sold 
to the U.S. tax-free, in large part because of his revival of Hawaiian 
traditions such as the historic Hula, and construction of the royal 
Iolani Palace. See Documents of American Democracy: A Collection of 
Essential Works 205 (Roger L. Kemp ed. 2010) [hereinafter Documents of 
American Democracy].
    \91\By forcing the adoption of the Bayonet Constitution, 
foreigners, primarily Americans, greatly increased their political role 
in Hawaii. See Remaking Queen Victoria 142 (Margaret Homans & Adrienne 
Munich, eds., 1997) (``In 1887, while Liliuokalani was attending Queen 
Victoria's jubilee celebrations, the American business community 
revolted and her brother Kalakaua, then king, was forced at bayonet-
point to sign a new constitution, known historically as the `Bayonet 
Constitution.' This illegal document, never ratified by the people of 
Hawaii, `deprived the sovereign of all power,' and `from that day the 
missionary party took the law into its own hands.''') (quoting 
Liliuokalani, Hawaii's Story by Hawaii's Queen 181 (1898)). The new 
constitution extended the right to vote to wealthy non-citizens 
(foreign resident aliens) for the first time, excluded Asians, and 
restricted access for Native Hawaiians through land-ownership and 
English literacy provisions. In this manner, many Americans and 
Europeans acquired full voting rights without the need for Hawaiian 
citizenship. Compare Hawaiian Kingdom Const. art. 62 (1887) (allowing 
for ``male resident[s] of the Kingdom'' of ``American or European birth 
or descent'' who can ``read and write the Hawaiian, English or some 
European language'' the right to vote for their district 
Representative), with Hawaiian Kingdom Const. art. 62 (1864) (allowing 
``male subject[s] of the Kingdom, who . . . know how to read and 
write'' the right to vote for their district Representative) (emphasis 
added).
---------------------------------------------------------------------------
    Under the 1887 Constitution, the King was deprived of his 
power and the United States-dominated cabinet and legislature 
became increasingly more influential. King Kalakaua moved to 
restore his power, but all attempts were unsuccessful. The 
constant presence of American military forces in Hawaii helped 
to discourage his efforts. When King Kalakaua died in 1891, his 
sister Lili`uokalani succeeded him, and members of the Native 
population persuaded the new queen to draft a new constitution 
in an attempt to restore Native rights and powers.\92\ Queen 
Lili`uokalani's proposed constitution was opposed by a group 
calling themselves the Committee of Safety, a small group of 
mostly American businessmen and politicians who felt that 
annexation by the United States, the major importer of Hawaiian 
agricultural products, would be beneficial for the economy of 
Hawaii.\93\ With strong encouragement from Washington, D.C., 
and the assurances of support from the United States minister, 
John L. Stevens, the Committee of Safety conspired to overthrow 
the monarchy.\94\ Following Stevens' orders, American troops 
landed in Honolulu on January 16, 1893.\95\
---------------------------------------------------------------------------
    \92\Documents of American Democracy, supra note 90, at 205.
    \93\Id. The Committee of Safety, under the leadership of Sanford B. 
Dole, was also known as the ``Committee of Public Safety,'' the 
``Committee on Annexation,'' or the ``Annexation Club.'' The Committee 
of Safety consisted of thirteen men, ``all foreigners and some of brief 
residence in the country.'' H.R. Exec. Doc. No. 47, 53d Cong., 3d Sess. 
353 (1893) (emphasis in original).
    \94\Stevens, an avowed annexationist, was the United States 
Department of State Minister to the Kingdom of Hawaii in 1893. See Pub. 
L. No. 103-150, 107 Stat. 1510 (1993) (acknowledging the illegal 
actions of Minister Stevens and the United States).
    \95\Although the stated reason for the military invasion was to 
protect the U.S. consulate and the lives and property of American 
citizens, the troops took up a position between the queen's palace and 
the government building, allowing the insurrectionists to take over 
occupation of the buildings. ``[W]hen Hawaiian leaders stopped 
accommodating [Anglo-American interests], they met with American 
force.'' Berger, supra note 55, at 1195.
---------------------------------------------------------------------------
    Within twenty-four hours of the American troops landing, 
and before the takeover of the Hawaiian government was 
complete, Stevens, without permission from the U.S. State 
Department,\96\ recognized the Committee of Safety as the new 
``Provisional Government,'' ``the de facto government of the 
Hawaiian Islands.''\97\ On January 17, 1893, Queen 
Lili`uokalani abdicated her authority, but did so only under 
protest\98\ and subject to a later review of the situation by 
the American government. The United States military then took 
custody of the government building.
---------------------------------------------------------------------------
    \96\The Proceedings and Debates of the Fifty-Third Congress, Second 
Session, 26 Cong. Rec. 311 (1893) (``Thus it appears that Hawaii was 
taken possession of by the United States forces without the consent or 
wish of the government of the islands, or of anybody else so far as 
shown, except the United States Minister.'').
    \97\Washington Government Printing Office, Papers Relating to the 
Annexation of The Hawaiian Islands to the United States 22 (1893).
    \98\Queen Lili`uokalani had not yet surrendered when Minister 
Stevens recognized the Provisional Government on behalf of the United 
States. The United States' recognition of the Provisional Government 
may have influenced Lili`uokalani's decision to surrender in 1893: 
``Now to avoid any collision of armed forces, and perhaps the loss of 
life, I do this under protest and impelled by said force yield my 
authority until such time as the Government of the United States shall, 
upon facts being presented to it, undo the action of its 
representatives and reinstate me in the authority which I claim as the 
Constitutional Sovereign of the Hawaiian Islands.'' Letter from Queen 
Lili`uokalani to Sanford B. Dole, Esq., (Jan. 17, 1893). Protesting the 
annexation of Hawaii, the Queen later wrote, ``I yielded my authority 
to the forces of the United States in order to avoid bloodshed, and 
because I recognized the futility of a conflict with so formidable a 
power.'' Letter from Queen Lili`uokalani to William McKinley, President 
of the United States (June 17, 1897).
---------------------------------------------------------------------------
    A presidential investigation of the overthrow revealed 
facts that led President Grover Cleveland to call for 
restoration of the monarchy.\99\ In a message to Congress, the 
President observed that the overthrow was not ``by the people 
of the islands,'' but rather that ``the Provisional Government 
owes its existence to an armed invasion by the United 
States.''\100\ He concluded that the United States' role was in 
opposition to established American foreign policy, to morality, 
and to principles of international law.\101\ Consequently, he 
stated that the United States ``cannot allow itself to refuse 
to redress an injury inflicted through an abuse of power by an 
officer clothed with its authority and wearing its uniform; the 
United States cannot fail to vindicate its honor and its sense 
of justice by an earnest effort to make all possible 
reparation.''\102\ President Cleveland refused to annex Hawaii 
to the United States, and in 1894, ``[m]embers of the 
provisional government declare[d] themselves the `Republic of 
Hawaii' and wait[ed] for a better opportunity to seek 
annexation.''\103\
---------------------------------------------------------------------------
    \99\President's Message Relating to the Hawaiian Islands, H.R. 
Exec. Doc. No. 47, 53d Cong., 2d Sess., at XVI (1893) (commonly 
referred to as the Report of the Commissioner to the Hawaiian Islands 
or the Blount Report). The Blount Report was conducted by Commissioner 
James H. Blount, who was appointed by President Cleveland to 
impartially investigate the events surrounding the January 1893 
overthrow of the Kingdom of Hawaii. Blount concluded that the United 
States diplomatic and military representatives had abused their 
authority and were responsible for the change in government--all in 
violation of international law. International law deems acts of state 
officials and representatives as acts of the state for purposes of 
determining international responsibility. Thus, Minister Stevens' 
actions, although not directed by the Department of the State or the 
President, would be the responsibility of the United States. Blount 
also discovered that many Native Hawaiians were forced to sign the 
petition for annexation by storekeepers and others in exchange for food 
and other necessities. Id. at 354. As a result of this investigation, 
Stevens was recalled from his diplomatic post.
    \100\The Proceedings and Debates of the Fifty-Third Congress, 
Second Session, 26 Cong. Rec. 311 (1893). President Cleveland called 
the United States' role in the overthrow of Hawaii ``an act of war.'' 
Id (``[B]ut for the lawless occupation of Honolulu under false pretexts 
by the United States forces, and but for Minister Stevens' recognition 
of the provisional government when the United States forces were its 
sole support and constituted its only military strength, the Queen and 
her Government would never have yielded to the provisional government, 
even for a time and for the sole purpose of submitting her case to the 
enlightened justice of the United States.'').
    \101\The Proceedings and Debates of the Fifty-Third Congress, 
Second Session, 26 Cong. Rec. 312 (1893).
    \102\Id.
    \103\Data Book, supra note 8, at 412.
---------------------------------------------------------------------------
    The overthrow of Queen Lili`uokalani and imposition of the 
Republic of Hawaii was contrary to the will of the Native 
Hawaiians. Native Hawaiians staged mass protest rallies and 
formed two groups to protest the overthrow and prevent 
annexation. One was the Hui Hawaii Aloha Aina, loosely 
translated as the Hawaiian Patriotic League, and the other was 
its female counterpart, the Hui Hawaii Aloha Aina o Na Wahine. 
On January 5, 1895, the protests took the form of an armed 
attempt to derail annexation but the armed revolt was 
suppressed by forces of the Republic. The leaders of the revolt 
were imprisoned along with Queen Lili`uokalani who had been 
jailed for failing to put down the revolt.
    Cleveland's successor, President McKinley, ran for office 
in 1896 on a pro-annexation platform, arguing that even though 
most residents of the islands were either Native Hawaiian or 
Asian, they were under the control of the superior American 
minority, and annexation was necessary to prevent a Japanese 
takeover.\104\ In March of 1897, William McKinley was 
inaugurated as President of the United States. McKinley was in 
favor of annexation, and the change in leadership was soon 
felt. On June 16, 1897, McKinley and three representatives of 
the government of the Republic of Hawaii signed a treaty of 
annexation. President McKinley then submitted the treaty to the 
United States Senate for ratification.
---------------------------------------------------------------------------
    \104\Berger, supra note 55, at 1195 (citations omitted).
---------------------------------------------------------------------------
    The Hui Hawaii Aloha Aina protest groups organized a mass 
petition drive. They hoped that if the United States government 
realized that the majority of Native Hawaiian citizens opposed 
annexation, the move to annex Hawaii would be stopped. Between 
September 11 and October 2, 1897, the two groups collected 
petition signatures on each of the five principal islands of 
Hawaii. The petition, clearly marked ``Petition Against 
Annexation'' and written in both the Hawaiian and English 
languages, was signed by 21,269 Native Hawaiian people--nearly 
every adult and more than half of the 39,504 Native Hawaiians 
reported by the census for the same year.\105\
---------------------------------------------------------------------------
    \105\Presumably, Native Hawaiian children would not have signed the 
petition. In the 1896 Census, there were 15,018 Native Hawaiian 
children (ages 0-15). This means that there were only 3,217 eligible 
Native Hawaiians who did not sign the anti-annexation petition. 
Department of Public Instruction, Report of the General Superintendent 
of the Census, 1896, at 54, table VIII (1897).
---------------------------------------------------------------------------
    The petition helped to defeat the proposed annexation 
treaty in 1898.\106\ However, other events immediately brought 
the subject of annexation up again.\107\ With the ensuing 
Spanish-American War, part of which was fought in the 
Philippine Islands, proponents of annexation argued that Hawaii 
was needed to support military action as a mid-Pacific fueling 
station and naval installation. The pro-annexation forces in 
Congress submitted a proposal to annex the Hawaiian Islands by 
joint resolution, which required only a simple majority vote in 
both chambers. This eliminated the two-thirds majority needed, 
and, as a result, the necessary support was in place. In July 
1898, a joint resolution passed control of Hawaii to the United 
States. House Joint Resolution 259, 55th Congress, 2nd session, 
known as the ``Newlands Resolution,'' passed Congress, and was 
signed into law by President McKinley on July 7, 1898. Amidst 
the fervor surrounding the Spanish American War, President 
McKinley thus secured the political domination of the territory 
of Hawaii and the appropriation of its lands.''\108\
---------------------------------------------------------------------------
    \106\On February 27, 1898, after the Hawaiian delegation, which 
included Lili`oukalani, presented the petition against annexation to 
the Senate, there were only 46 senators willing to vote for annexation. 
The treaty was thus defeated in the Senate.
    \107\On February 15, 1898, the U.S. Battleship Maine was blown up 
in Havana harbor in Cuba.
    \108\Berger, supra note 55, at 1195. The annexation of Hawaii 
reveals the same denigration of indigenous interests found throughout 
American Indian history. Id.
---------------------------------------------------------------------------
    Upon annexation, control of the crown and government lands 
passed from the Republic of Hawaii to the United States.

          Through the 1898 Joint Resolution and the 1900 
        Organic Act,\109\ the United States received 1.8 
        million acres of lands, formerly Crown and Government 
        Lands under the Hawaiian Kingdom, and exempted these 
        lands from the existing public laws of the United 
        States by mandating that the revenue and proceeds from 
        these lands be ``used solely for the benefit of the 
        inhabitants of the Hawaiian Islands for education and 
        other public purposes.''\110\
---------------------------------------------------------------------------
    \109\See An Act to Provide for a Government for the Territory of 
Hawaii, 31 Stat. 141, 56 Cong. Sess. 1 (April 30, 1900).
    \110\Van Dyke & MacKenzie, supra note 85, at 63 (citing the 
Newlands Resolution and Organic Act).

    This public trust established a special trust relationship 
between the United States and the inhabitants of Hawaii, 
similar to the trust relationship between the Federal 
Government and Indian Tribes, by imposing fiduciary 
responsibilities on the United States and constraining the use, 
management, and proceeds generated from the trust to public 
purposes.\111\ This meant that 1.8 million acres in which the 
Native Hawaiian people were to have interest following the 
Great Mahele\112\ became United States property.
---------------------------------------------------------------------------
    \111\Id. at 63-64 (citations omitted).
    \112\See discussion supra p. 17.
---------------------------------------------------------------------------

Hawaii's transition from a foreign nation to domestic dependent Native 
        nation

    At the time of annexation, the political and legal 
relationship between the Native Hawaiian people and the United 
States changed from interacting as two independent nations 
through treaties to one of relating to the Native Hawaiian 
people as a domestic dependent Native nation. As is noted in 
Public Law 103-150, the Apology Resolution, ``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, either through their monarchy or 
through a plebiscite or referendum.''\113\
---------------------------------------------------------------------------
    \113\Pub. L. No. 103-150, 107 Stat. 1510 (1993).
---------------------------------------------------------------------------
    Hawaii was designated as a non-self-governing territory of 
the United States from 1898 to 1959. During that time, the 
United States allowed citizenship for all persons living in the 
Hawaiian Islands, greatly expanding the number of non-Native 
Hawaiian citizens beyond what had been allowed by the Kingdom 
of Hawaii. Although Native Hawaiians made up less than half the 
resident population in Hawaii at the time of the overthrow, 
they were more than 80 percent of the Kingdom's citizenry.\114\ 
After Annexation, the Native Hawaiian percentage of the 
citizenry of the territory was less than 25 percent.\115\ 
``[T]he residents of the Hawaiian Islands exercised their right 
to self-determination in 1959 when they voted to become a 
state,\116\ and they are now a self-governing political 
community. But the Native Hawaiian population has never had an 
opportunity to exercise its separate right to self-
determination and to reestablish itself as self-governing 
autonomous [N]ative nation.''\117\
---------------------------------------------------------------------------
    \114\At the time of the overthrow, only those born in Hawaii were 
considered citizens. See, e.g., I Statute Laws of Kamehameha III, p. 
76, Sec. III (1846); Letter from Ferdinand Hutchison, Minister of the 
Interior for the Hawaiian Kingdom, to H.H. Parker, regarding the 
determination of his citizenship status, published in the Hawaiian 
Gazette (official publication of the Government of the Kingdom), at 2 
(Jan. 21, 1868). At the time of the overthrow of the Kingdom of Hawaii, 
less than 10 percent of foreigners were actually born in Hawaii. 1 
Native Hawaiians Study Commission: Report on the culture, needs and 
concerns of Native Hawaiians Pursuant to Public Law 96-565, Title III, 
at 68, table 3 (Jun. 23, 1983).
    \115\1 Native Hawaiians Study Commission: Report on the Culture, 
Needs and Concerns of Native Hawaiians Pursuant to Public Law 96-565, 
Title III, at 69, table 4 (Jun. 23, 1983). The Organic Act extended 
citizenship to all residents of Hawaii, even those who were born 
elsewhere. An Act to Provide for a Government for the Territory of 
Hawaii, 31 Stat. 141, 56 Cong. Sess. 1 (April 30, 1900).
    \116\``Even this statement has been challenged, because the only 
options offered to the people of Hawaii were (1) to become a state or 
(2) to remain a territory. Some have argued that the resolutions of the 
United Nations General Assembly . . . require that nonself-governing 
peoples be given the additional options of complete independence and 
free associated state status.'' Jon M. Van Dyke, Carmen Di Amore-Siah, 
& Gerald W. Berkely-Coats, Self-Determination for Nonself-Governing 
Peoples and for Indigenous Peoples: The Cases of Guam and Hawaii, 18 U. 
Haw. L. Rev. 623, 624 n. 3 (1996) (referring to Declaration on the 
Granting of Independence to Colonial Countries and Peoples, G.A. Res. 
1514, U.N. GAOR, 15th Sess., Supp. No. 16, at 66, U.N. Doc. A/4684 
(1960); G.A. Res. 1541, U.N. GAOR, 15th Sess., Supp. No. 16, at 29, 
Annexes, Agenda Item No. 38, at 9, U.N. Doc. A/4684 (1960)).
    \117\Van Dyke, Di Amore-Siah, & Berkely-Coats, supra note 116, at 
624-25.
---------------------------------------------------------------------------
    The fact that the indigenous Native Hawaiian community does 
not presently have an operating tribal government recognized by 
the Department of the Interior (DOI) does not remove that 
community from the scope of Congress's Indian affairs power. 
The Constitution does not limit Congress' Indian affairs power 
to indigenous groups with a particular government structure. 
``[S]ome bands of Indians, for example, had little or no tribal 
organization while others . . . were highly organized.''\118\ 
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.\119\ Thus, under the Constitution, ``[f]ederal 
regulation of Indian tribes . . . is governance of once-
sovereign political communities; it is not to be viewed as 
legislation of a `racial' group consisting of `Indians.'''\120\
---------------------------------------------------------------------------
    \118\Washington v. Washington State Commercial Passenger Fishing 
Vessel Ass'n, 443 U.S. 658, 664 (1979) (citations omitted). See also, 
United States v. John, 437 U.S. 634 (1978), where the Court upheld 
Congress's power to provide for a group of Indians that did not have a 
federally-recognized tribal government, because federal supervision had 
lapsed.
    \119\Johnson v. M`Intosh, 21 U.S. (8 Wheat.) 543, 574 (1823); 
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 45 (1831).
    \120\United States v. Antelope, 430 U.S. 641, 646 (1977) (quoting 
Morton v. Mancari, 417 U.S. 535, 553 n. 24 (1974)).
---------------------------------------------------------------------------

The Hawaiian Homes Commission Act of 1921

    By the time Hawaii was annexed as a territory to the United 
States in 1898, the Native Hawaiian population had 
plummeted,\121\ its traditional practices\122\ and the communal 
land tenure system had been forcibly replaced by European and 
American models of ownership, the Kingdom of Hawaii had been 
illegally overthrown, and Hawaiian lands had been taken without 
the consent of the Native Hawaiian people. Two years later, 
Congress entrusted management of the lands to a territorial 
legislature established by the Organic Act of 1900.\123\ These 
lands are referred to as the ``Ceded Lands'' or the ``Public 
Lands Trust.'' As a result of losing their homelands, the 
Native Hawaiian people found themselves at the bottom of the 
socio-economic scale in their own land.\124\
---------------------------------------------------------------------------
    \121\Estimates of the Native Hawaiian population prior to the 
arrival of Captain James Cook in 1778 range from 300,000 to 800,000. By 
1850, the population dropped to 84,165, and by 1872, it dropped even 
further to 56, 897. Van Dyke, supra note 31, at 95.
    \122\When Hawaii became an American territory in 1900, the Native 
Hawaiian language and cultural practices were discouraged. See Lilikala 
Kame`eleihiwa, Native Land and Foreign Desires: Pehea La E Pono Al 316 
(1992); Van Dyke, supra note 31, at 103 n.50.
    \123\An Act to Provide for a Government for the Territory of 
Hawaii, 31 Stat. 141, 56 Cong. Sess. 1 (April 30, 1900). The Organic 
Act established the government for the Territory of Hawaii. Prior to 
Hawaii's statehood, the Territorial Government was responsible for 
implementing the HHCA. The Territorial Government often provided leases 
to sugar planters on the 203,500 acres while failing to provide the 
land for Native Hawaiian homesteads. After Hawaii became a state, the 
Department of Hawaiian Home Lands (DHHL) took over that responsibility. 
DHHL has also not administered the Act well, and this has sparked 
intense criticism.
    \124\Data Book, supra note 8, at 189, Table 2.48. See discussion 
supra, pp. 3-5.
---------------------------------------------------------------------------
    During this time, federal Indian policies were focused 
primarily on the allotment and assimilation of the Native 
people.\125\ The two prevailing laws of this era were the Dawes 
Act\126\ and Burke Act.\127\ These two acts sought to provide 
eligible Indians with allotments of lands for residential, 
ranching, and agricultural purposes, with the hope of hastening 
the assimilation process. Through these federal allotment and 
assimilation practices, Congress attempted to address the 
deteriorating social and economic conditions among the Native 
people by returning them to their land.
---------------------------------------------------------------------------
    \125\The Kingdom of Hawaii was overthrown and annexed during the 
Allotment & Assimilation Era of Federal Indian Law (1871-1928). The 
United States did not identify Native Hawaiians as a separate political 
entity because it would have been inconsistent with federal Indian 
policy. During this period, the United States attempted to rid American 
Indians and Alaska Natives of their native languages and culture. The 
HHCA was an allotment-era policy and was enacted when Congress still 
thought that ``civilizing'' the indigenous peoples required destruction 
of their autonomy and their identification as a separate political 
identity. In 1928, the Merriam Report revealed the devastating effects 
of the Indian General Allotment Act (GAA) (25 U.S.C. Sec. Sec. 331 to 
334, 339, 341, 342, 348, 349, 354, and 381 (1887) (Sec. Sec. 331 to 333 
repealed)) and it became clear that the United States needed to change 
its policies towards tribal governments. In response to the Merriam 
Report, Congress passed the Indian Reorganization Act in 1934 (IRA) (25 
U.S.C. Sec. Sec. 461-479 (1934)) as a remedy for its prior allotment 
practices. The IRA repudiated the policy of allotment and allowed 
tribes to adopt constitutions and to reestablish structures for tribal 
governance. Tribal sovereignty was now to be encouraged rather than 
destroyed.
    \126\Popularly known as the ``Indian'' General Allotment Act (GAA) 
(25 U.S.C. Sec. Sec. 331 to 334, 339, 341, 342, 348, 349, 354, and 381 
(Sec. Sec. 331 to 333 repealed)). This Act stated that Indians who 
received land allotments or voluntarily took up residence away from 
their tribes were to be given United States citizenship.
    \127\34 Stat. 182 (1906). The Burke Act amended section 6 of the 
GAA, by postponing the acquisition of citizenship until the end of the 
trust period, typically twenty-five years, or until the allottee 
received a patent in fee from the Secretary of the Interior.
---------------------------------------------------------------------------
    Passed in 1921, the Hawaiian Homes Commission Act 
(HHCA)\128\ was modeled after these Acts, as it too recognized 
the deteriorating conditions of the Native Hawaiian people\129\ 
and sought to rehabilitate Hawaii's indigenous peoples by 
setting aside 203,500 acres of ceded lands for a homesteading 
program to provide residences, farms, and pastoral lots for 
native Hawaiians,\130\ and returning Native Hawaiians to their 
ancestral lands, allowing them to take up homesteading on 
specified lands and reestablish a traditional Hawaiian way of 
life.\131\ ``The Hawaiian Homes Commission Act is a clear 
example of federal policies towards Native peoples that have 
consistently been applied to Native Hawaiians, not always at 
exactly the same time, but often closely afterwards.''\132\
---------------------------------------------------------------------------
    \128\42 Stat. 108 (1921). This Act is now part of Hawaii's State 
Constitution. See Haw. Const. art. XII. The HHCA was remarkably similar 
in purpose and effect to the General Allotment Act (GAA), 25 U.S.C. 
Sec. Sec. 331 to 334, 339, 341, 342, 348, 349, 354, and 381 (1887) 
(Sec. Sec. 331-333 repealed), which destroyed tribalism and assimilated 
Indians as individuals into the dominant society. The GAA took 
collectively owned tribal lands and allotted parcels to individual 
tribal members. The surplus lands, lands not allotted to individual 
tribal members, was then sold to non-Indians. Both the HHCA and the GAA 
were poorly carried out, often giving their beneficiaries parcels of 
useless, inarable land.
    \129\Van Dyke & MacKenzie, supra note 85, at 64 (citing Act of July 
9, 1921, ch. 42, 42 Stat. 108).
    \130\Id. (citing Ahuna v. Department of Hawaiian Home Lands, 64 
Haw. 327, 640 P.2d 1161, 1162 (1982), ``in which the Hawaii Supreme 
Court found that the purpose of the HHCA was to rehabilitate Native 
Hawaiians. The court drew on language in the legislative history of the 
HHCA to conclude that there was `an intent to establish a trust 
relationship between the government and Hawaiian persons.''').
    \131\Hawaiian Homeownership Act of 2011: Oversight Field Hearing on 
S. 65 Before the S. Comm. on Indian Affairs, 112th Cong. (Apr. 13, 
2012) (statement of Melody Mackenzie, Associate Professor of Law and 
Director of Ka Huhi Ao Center for Excellence in Native Hawaiian law at 
University of Hawaii, Richardson School of Law).
    \132\Id (statement of Sen. Brickwood Galuteria, Majority Leader, 
Hawaii State Capitol).
---------------------------------------------------------------------------
    Having learned from the devastating consequences that 
resulted from American Indians losing most of their lands as a 
result of the Dawes Act, Congress, through enactment of the 
HHCA, created a federal land trust that provided for 99-year 
leases to qualified Native Hawaiians. These long-term leases 
ensured that the trust lands would benefit the Native Hawaiian 
people for generations. With passage of the HHCA, Congress 
began to enact measures to remedy the Native Hawaiian people's 
plight resulting from the loss of their home lands and 
culture.\133\
---------------------------------------------------------------------------
    \133\Hawaiian Homeownership Act of 2011: Oversight Field Hearing on 
S. 65 Before the S. Comm. on Indian Affairs, 112th Cong. (Apr. 2012) 
(statement of Colleen Hanabusa, Rep., U.S. House of Representatives) 
(noting that the HHCA was critical to preserve the Native Hawaiian 
people and culture).
---------------------------------------------------------------------------
    By developing the HHCA, executive branch and congressional 
leaders were under the impression that the Federal Government 
was assuming trust responsibilities similar to those it had 
historically exercised in managing Indian affairs. In hearings 
on the legislation, the Secretary of the Interior, Franklin K. 
Lane, testified, ``One thing that impressed me . . . was the 
fact that the Natives of the islands who are our wards, I 
should say, and for whom in a sense we are trustees, are 
falling off rapidly in numbers, and many of them are in 
poverty.''\134\
---------------------------------------------------------------------------
    \134\H.R. Rep. No. 839, 66th Cong., 2d Sess. 4 (1920). The House 
Committee Report on the HHCA defended the bill against the charge that 
it was ``unconstitutional class legislation'' by noting that Congress 
had the authority to provide special benefits for unique groups such as 
``Indians, soldiers and sailors.'' Half a century later, the United 
States Supreme Court would address constitutional arguments to uphold 
legislation benefitting Indians as a group in Morton v. Mancari, 417 
U.S. 535, 553 n.24, 554 (1974) (holding that Indian status was 
``political rather than racial in nature'' because tribal Indians were 
``members of quasi-sovereign tribal entities''). The Court determined 
that the employment preference for Indians in the Bureau of Indian 
Affairs was not impliedly repealed by the Equal Employment 
Opportunities Act of 1972, and that the preference did not constitute 
invidious racial discrimination but was reasonable and rationally 
designed to further Indian self-government. Id. The Supreme Court was 
careful to note, however, that [Mancari] was confined to the authority 
of the BIA, an agency described as ``sui generis.'' Rice v. Cayetano, 
528 U.S. 495, 520 (2000) (quoting Mancari, 417 U.S. at 554) (emphasis 
in original). ``Thus while Native Hawaiian classifications do not 
automatically come within the safe harbor Mancari provides for American 
Indian classifications, equal protection challenges regarding Native 
Hawaiians implicate similar questions and should be analyzed under 
similar principles.'' Berger, supra note 55, at 1193.
---------------------------------------------------------------------------
    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.\135\
---------------------------------------------------------------------------
    \135\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); 
T3id. at 167-170 (colloquy between Rep. Curry, Chair of the Committee, 
and Reps. 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.\136\
---------------------------------------------------------------------------
    \136\Id. at 129-31.

    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.''\137\ Secretary Lane attributed the declining 
population to health problems similar to those faced by the 
``Indian in the United States'' and concluded that the Nation 
must provide similar remedies.\138\
---------------------------------------------------------------------------
    \137\59 Cong. Rec. 7453 (1920).
    \138\H.R. Rep. No. 66-839. at 5 (1920).
---------------------------------------------------------------------------
    Congress compared the HHCA to ``previous enactments 
granting Indians . . . special privileges in obtaining and 
using the public lands.''\139\ In support of the Act, the House 
Committee on the Territories recognized that, prior to the 
Great Mahele, Native Hawaiians had a one-third interest in the 
lands of the Kingdom. The Committee reported that the HHCA was 
necessary to address the way Native Hawaiians had been short-
changed in prior land-distribution schemes.\140\
---------------------------------------------------------------------------
    \139\H.R. Rep. No. 66-839, at 11 (1920); see also 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).
    \140\H.R. Rep. No. 66-839, at 6-7 (1920).
---------------------------------------------------------------------------
    The history of federal Indian policy establishing 
reservations was also in the minds of the Congressmen who voted 
for the HHCA. Recognizing that the Native Hawaiian people were 
deprived of their lands without their consent,\141\ the 
Chairman of the House Committee on Territories noted that the 
motivations behind the legislation were the same as those 
supporting similar land trust legislation relating to Indian 
tribes:

    \141\Although Hawaii became a state, the Native Hawaiian people 
never surrendered their right to self-governance. ``Native Hawaiians 
were never consulted or given an opportunity to vote on whether 
incorporation into the United States was desirable.'' Native Hawaiian 
Rights Handbook 97 (Melody Kapilialoha MacKenzie, ed., 1991). See 
Worcester v. Georgia, 31 U.S. 515,520 (1832) (``[T]he settled doctrine 
of the law of nations is, that a weaker power does not surrender its 
independence--its right to self-government, by associating with a 
stronger, and taking its protection. A weak state, in order to provide 
for its safety, may place itself under the protection of one more 
powerful, without stripping itself of the right of government, and 
ceasing to be a state.'').

          The United States Government has supported [the 
        Indians] and helped them along; now they are in such a 
        position that they can take care of themselves. And we 
        can do that for the Indians. Why? Because we came to 
        this country and took their land away from them, and 
        treaty after treaty has been violated. And if we can 
        afford to do that for the Indians--and we have done it 
        and it is constitutional--why can we not do the same 
        for the Hawaiians whose land has been taken away from 
        them?\142\
---------------------------------------------------------------------------
    \142\Proposed Amendments to the Organic Act of the Territory of 
Hawaii, Hearings on HR. 7257 Before the H. Comm. on the Territories, 
67th Cong. 1st Sess. 141 (June 9 & 10, 1921) (statement of Charles F. 
Curry, Chairman, H. Comm. on the Territories).

    Under the HHCA, Congress designated a trust of 203,500 
acres of public lands to be available for Native Hawaiian 
homesteads (Hawaiian Home Lands Trust or HHL Trust).\143\ 
However, similar to other federal policies enacted to remedy 
the effects of the loss of land on American Indians and Alaska 
Natives of this era, the HHCA has generally failed to provide 
agricultural or residential lands or to achieve its lofty goal 
of rehabilitating the Native Hawaiian people.''\144\ The lands 
set aside as part of the HHL Trust were some of the poorest, 
largely unsuitable for farming, and lacking in necessary 
irrigation water.
---------------------------------------------------------------------------
    \143\The HHL Trust was designated from the 1.8 million acres of 
land that became United States property upon the annexation of Hawaii. 
See supra p. 25. From the 1.8 million acres, the United States reserved 
400,000 acres for its use. The 1.2 million acres remaining became the 
public land trust. The public land trust was ceded to the State of 
Hawaii for five specified purposes, including ``for the betterment of 
the conditions of native Hawaiians, as defined in the Hawaiian Homes 
Commission Act.'' See infra note 151. In doing so, Congress delegated 
to the State of Hawaii the trust responsibility owed to the Native 
Hawaiians.
    \144\``[I]n many ways we're back in the same situation we were in 
1920 with people coming to Congress basically saying our people are 
dispossessed from their lands. They're dying. They don't have a place 
to live. And we're in that same situation. So I see this S. 65 as an 
opportunity to really fulfill the promise of the Hawaiian Homes 
Commission Act.'' Hawaiian Homeownership Act of 2011: Oversight Field 
Hearing on S. 65 Before the S. Comm. on Indian Affairs, 112th Cong. 
(Apr. 13, 2012) (statement of Melody Mackenzie, Associate Professor of 
Law & Director, Ka Huli Ao Center for Excellence in Native Hawaiian 
Law, University of Hawaii Richardson School of Law, University of 
Hawaii at Manoa).
---------------------------------------------------------------------------
    It has been over 90 years since the enactment of the HHCA 
and only approximately 10,000 land leases have been issued to 
Native Hawaiian beneficiaries for homesteading purposes.\145\ 
``[T]he waitlist of individual applicants to receive a land 
award under the [HHCA] exceeds 26,000 individuals, with waiting 
times ranging from five years to 50 years.''\146\
---------------------------------------------------------------------------
    \145\Id. (statement of Michelle Kauhane, Deputy Director, State of 
Hawaii, Department of Hawaiian Home Lands).
    \146\Id.
---------------------------------------------------------------------------

Statehood and the delegation offederal trust responsibilities to the 
        State of Hawaii

    When the State of Hawaii was admitted into the Union in 
1959, the federal policy toward the Native people 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.\147\ A prime example of this federal policy was the 
enactment of Public Law No. 83-280, an Act which vested 
criminal jurisdiction and certain aspects of civil jurisdiction 
over Indian lands in certain states.\148\ Similarly, in 1959 
and as a condition of statehood, the United States transferred 
responsibilities related to administering the HHCA to the new 
State of Hawaii, while explicitly retaining the authority to 
alter, amend or repeal the HHCA.\149\ In the Hawaii Admission 
Act, the United States delegated its principal responsibilities 
under the HHCA to the new state.\150\ As a further condition of 
statehood, the United States imposed a public trust on lands 
ceded to the State of Hawaii for five purposes, one of which 
was the ``betterment of the conditions of native 
Hawaiians.''\151\ The Act says that departure from the 
prescribed purposes is a breach of trust.\152\ The Admission 
Act makes clear that the United States anticipated that the 
State of Hawaii's constitution and laws would provide for the 
manner in which the HHCA and the public trust would be 
administered.
---------------------------------------------------------------------------
    \147\This was during the era known as Termination in Federal Indian 
Policy (1945-1961). During Termination, federal policies attempted to 
end the Indians' status as wards of the United States by forcing the 
assimilation of all America's indigenous peoples. H.R. Con. Res. 108, 
83rd Cong., 1st Sess., 67 Stat. B132 (1953). By the 1970s, Congress 
once again changed its course, rejecting such policies of assimilation 
and termination and promoting tribal self-determination. See, e.g., 
Indian Self-Determination and Education Assistance Act, Pub. L. 93-638, 
88 Stat. 2214 (codified at 25 U.S.C. 458-458(e)).
    \148\67 Stat. 5884 (1953).
    \149\Section 223 of the HHCA, Act of July 9, 1921, 42 Stat. 108 
(1920), codified in Haw. Const., Art. XII Sec. 1.
    \150\Hawaii Admission Act, 5(f), Pub. L. No. 86-3, 73 Stat. 4 
(1959).
    \151\Id. (declaring the purposes of the public trust to be: (1) for 
the support of the public schools; (2) for the betterment of the 
conditions of native Hawaiians, as defined by the Hawaiian Homes 
Commission Act, as amended; (3) for the development of farm and home 
ownership on as widespread basis as possible; (4) for the making of 
public improvements; (5) and for the provision of lands for public 
use). The language of trust in the Act arguably reflects a continuing 
interest of Hawaiian people in the 5(f) lands transferred to the state 
by the United States. This would give rise to a claim for income from 
the lands or for the value of lands the state has appropriated to its 
own uses.
    \152\Hawaiian Admission Act, sec. 5(f), Pub. L. No. 86-3, 73 Stat. 
4 (1959).
---------------------------------------------------------------------------
    ``While the State of Hawaii has administrative and 
rulemaking authority, the Federal Government retains oversight 
to ensure that the original intent of the Act is 
maintained.''\153\ This supervisory role of the United States 
demonstrates the existence of a trust relationship between the 
United States and the Native Hawaiian community. ``[T]he State 
of Hawaii has embraced its role in managing the Hawaiian Home 
Lands trust, and continues to support efforts to enhance [the] 
self-determination and self-governance [of the Native Hawaiian 
people].''\154\
---------------------------------------------------------------------------
    \153\Hawaiian Homeownership Act of 2011: Oversight Field Hearing on 
S. 65 Before the S. Comm. on Indian Affairs, 112th Cong. (Apr. 13, 
2012) (statement of Melody Mackenzie, Associate Professor of Law and 
Director of Ka Huli Ao Center for Excellence in Native Hawaiian law at 
University of Hawaii, Richardson School of Law).
    \154\Id. (statement of Sen. Brickwood Galuteria, Majority Leader, 
Hawaii State Capitol).
---------------------------------------------------------------------------
    That the special requirements of the Admissions Act have 
not been fully observed by the state is well established. 
``[D]espite the legal obligations and responsibilities, [Native 
Hawaiians] have always . . . been in the lessor priority when 
there have been other needs for the community.''\155\ At 
Hawaii's 1978 constitutional convention, this led to proposals 
for three constitutional amendments that were accepted and 
adopted by voters. The result was the establishment of the 
State of Hawaii Office of Hawaiian Affairs (OHA)\156\ managed 
by a board of trustees that receives and expends the portion of 
income from the public trust lands that is allocable to Native 
Hawaiians. OHA was created by the State of Hawaii in order to 
administer the trust created by the congressional legislation 
authorizing its annexation as the fiftieth state of the United 
States. Pursuant to its authorizing legislation, OHA was 
``intended to advance multiple goals: to carry out the duties 
of the trust relationship between the islands' indigenous 
peoples and the Government of the United States; to compensate 
for past wrongs to the ancestors of these peoples; and to help 
preserve the distinct, indigenous culture that existed for 
centuries before Cook's arrival [in 1778].''\157\
---------------------------------------------------------------------------
    \155\Id. (statement of Richard Naiwieha Wurdeman, President, Native 
Hawaiian Bar Association).
    \156\Haw. Const., art. XII, Sec. Sec. Sec. 4-6 (1978).
    \157\Rice v. Cayetano, 528 U.S. 495, 528 (2000) (Stevens, J., 
dissenting).
---------------------------------------------------------------------------

Apology & Reconciliation: a mandate for the United States to address 
        Native Hawaiian self-governance

    Acknowledging the 100th anniversary of the 1893 overthrow 
of the Kingdom of Hawaii, Congress passed an Apology 
Resolution\158\ in 1993 in which it apologized on behalf of the 
United States to Native Hawaiians for the United States' role 
in the illegal overthrow of the Kingdom of Hawaii, the 
subsequent suppression of the inherent right of the Native 
Hawaiian people to self-determination and self-governance, and 
committed the United States to a process of reconciliation with 
Native Hawaiians.
---------------------------------------------------------------------------
    \158\Apology Resolution, Pub. L. No. 103-150, 107 Stat. 1510 
(1993).
---------------------------------------------------------------------------
    The Apology Resolution acknowledges the direct 
participation of United States agents and citizens in the 
overthrow, and recognizes that the 1.8 million acres of lands 
acquired by the United States were done so without the consent 
of or compensation paid to the Native Hawaiian people. The 
apology also acknowledges that Native Hawaiian people never 
directly relinquished their claims to their inherent 
sovereignty as a people over their national lands to the United 
States, urges the President to seek reconciliation with the 
Hawaiian people, and provides a foundation for reconciliation 
between the United States and the Native Hawaiian people.\159\
---------------------------------------------------------------------------
    \159\Id.

          When I proposed the Apology Resolution a few years 
        ago, I had three goals. They were to (1) educate the 
        Congress and the American public on the overthrow of 
        the Kingdom of Hawaii, (2) to provide a continuing 
        forum for discussion and (3) to lay the foundation for 
        reconciliation efforts between Native Hawaiians and the 
        Federal Government. The Apology Resolution is the first 
        step towards reconciliation, the first step towards 
        healing.\160\
---------------------------------------------------------------------------
    \160\Daniel Akaka, United States Senator for Hawaii, Newsroom, 
Statements and Speeches, Remarks of U.S. Senator Daniel K. Akaka for 
Reconciliation Process Public Dialogue (Dec. 10, 1999).

    In response to the Apology Resolution, the Departments of 
the Interior and Justice conducted a series of consultations 
and hearings in Native Hawaiian communities in 1999. These 
hearings determined that because the United States aided in the 
destruction of the Native Hawaiian government, effectively 
suppressing the Native Hawaiian people's right to self-
determination, federal recognition of a Native Hawaiian 
government is the proper path to reconciliation. The result of 
the Departments' reconciliation efforts was a joint report, 
From Mauka to Makai: The River of Justice Must Flow Freely, 
---------------------------------------------------------------------------
published in 2000. The report concluded:

          [T]hat the Native Hawaiian people continue to 
        maintain a distinct community and certain governmental 
        structures and they desire to increase their control 
        over their own affairs and institutions. As a matter of 
        justice and equity, this Report recommends that the 
        Native Hawaiian people should have self-determination 
        over their own affairs within the framework of Federal 
        law, as do Native American tribes.\161\
---------------------------------------------------------------------------
    \161\The Department of The Interior & The Department of Justice, 
From Mauka to Maicai: The River of Justice Must Flow Freely, Report On 
The Reconciliation Process Between The Federal Government And Native 
Hawaiians 17 (Oct. 23, 2000) [hereinafter Mauka to Makai].

    This report recommends that the reconciliation process 
between the Federal Government and the Native Hawaiian people 
should ``result in congressional confirmation of a political, 
government-to-government relationship between Native Hawaiians 
and the Federal Government pursuant to Congress' plenary 
authority over Indian Affairs.''\162\
---------------------------------------------------------------------------
    \162\Id. at ii.
---------------------------------------------------------------------------
    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. While Congress has consistently recognized Native 
Hawaiians as among the indigenous peoples of the United States 
on whose behalf it may exercise its powers under the Indian 
Commerce Clause, it has not as yet acted to provide a process 
for the reorganization and subsequent recognition of a 
sovereign Native Hawaiian governing entity as a necessary first 
step to promote reconciliation, as called for by the Apology 
Resolution.
    While its potential remains unfulfilled, the Apology 
Resolution has increased Native Hawaiians' initiatives for 
self-determination.\163\ It is within Congress' plenary power 
to enact legislation ``to clarify Native Hawaiians'' political 
status and to create a framework for recognizing a government-
to-government relationship with a representative Native 
Hawaiian governing body.\164\
---------------------------------------------------------------------------
    \163\Legislative Hearing on H.R. 443, 444, 1461, 1556, 2444 Before 
the H. Subcomm. on Indian and Alaska Native Affairs, 112th Cong. (Sep. 
22, 2011) (statement of Representative Boren (D-OK), Member, H. 
Subcomm. on Indian and Alaska Native Affairs) (``Self-governance is 
arguably the most successful Indian policy in the history of our 
country.'').
    \164\Mauka to Makai, supra note 161, at 17.
---------------------------------------------------------------------------

Nineteen years after the Apology, the federal trust responsibility to 
        Native Hawaiians remains intact but unfulfilled

    In 2011, the Hawaii state legislature introduced and 
enacted Act 195.\165\ Act 195 established a Native Hawaiian 
Roll Commission which officially acknowledges Native Hawaiians 
as the only indigenous people of the Islands. It also 
establishes a governor-appointed commission charged with 
enrolling qualified Native Hawaiians to participate in the 
reorganization of a self-governing entity. Through Act 195, the 
State of Hawaii expressly supports the continuing development 
of the reorganization of the Native Hawaiian governing entity 
and its subsequent recognition by the Federal Government. ``The 
enactment of Act 195 was yet another example of Hawaii's 
ongoing desire to recognize the unique contributions and 
traditions of the Native Hawaiian people.''\166\
---------------------------------------------------------------------------
    \165\The Hawaii State Legislature passed SB1520 and it was signed 
into law as Act 195 by Governor Abercrombie. Act 195 recognizes Native 
Hawaiians as the indigenous population of the Hawaiian Islands. The law 
establishes the Native Hawaiian Roll Commission, with unpaid 
commissioners appointed by the Governor, to certify and publish a roll 
of Qualified Native Hawaiians. Act 195 calls for the roll to be used to 
organize a Native Hawaiian governing entity that is recognized by the 
State of Hawaii, and can be recognized by the United States.
    \166\Hawaiian Homeownership Act of 2011: Oversight Field Hearing on 
S. 65 Before the S. Comm. on Indian Affairs, 112th Cong. (Apr. 13, 
2012) (statement of Sen. Brickwood Galuteria, Majority Leader, Hawaii 
State Capitol).
---------------------------------------------------------------------------
    The State of Hawaii has also worked to embrace, protect and 
advance the Native Hawaiian people and their culture in other 
ways, including but not limited to: designating the Native 
Hawaiian language as one of the two official languages of the 
state;\167\ recognizing the legitimacy of the traditional 
Native Hawaiian child-rearing practice of hanai (fostering/
adoption) in state functions such as the provision of human 
services and education;\168\ and implementing a system of 
protecting Native Hawaiian graves and sacred sites through 
State burial councils comprised of Native Hawaiian 
representatives with expertise in Native Hawaiian culture and 
burial practices appointed by the Governor and confirmed by the 
State Senate.\169\
---------------------------------------------------------------------------
    \167\Haw. Const. art. XV, Sec.  4.
    \168\Hawaii Administrative Rules, Title 17, Subtitle 6, Chapter 
656.1 (1998).
    \169\Hawaii Administrative Rules, Title 13, Chapter 300 (1996).
---------------------------------------------------------------------------
    Further, the Administration has implemented programming in 
a number of departments to address many Native Hawaiian 
concerns, concerns shared by other Native Americans, in the 
Departments of Defense, Health and Human Services, Housing and 
Urban Development, the Interior Agriculture, Treasury, Veterans 
Affairs, Commerce and Education, as well as the Small Business 
Administration and other federal agencies.
    In addition to retaining oversight and policy 
responsibilities over the HHCA, Congress has enacted over 150 
laws addressing the conditions of Native Hawaiians, protecting 
their rights, and strengthening their ability to perpetuate 
their language and culture.\170\ In many of these statutes, 
Congress specifically requires federal agencies to engage in 
meaningful consultation with the Native Hawaiian people for 
issues related to national parks, national historic 
preservation programs, the national trails system, the Native 
American Graves Protection and Repatriation Act (NAGPRA), 
vocational rehabilitation services, and public health and 
welfare economic opportunity programs.\171\ There are 
additional federal statutes that direct the employment of at 
least one Native Hawaiian representative to applicable boards, 
councils, or advisory commissions to represent the interests of 
Native Hawaiians and to ensure the survival of traditional 
Native Hawaiian subsistence, culture, and religion.\172\
---------------------------------------------------------------------------
    \170\These acts are codified in 14 titles of the United States 
Code. See discussion supra pp. 10-12.
    \171\16 U.S.C. Sec.  396d; 16 U.S.C. Sec. Sec.  470a, h-2, h-4; 16 
U.S.C. Sec. 1244; 25 U.S.C. Sec.  3002; 25 U.S.C. Sec.  3003; 25 U.S.C. 
Sec.  3004; 25 U.S.C. Sec.  3005; 25 U.S.C. Sec.  3006; 29 U.S.C. Sec.  
721; 42 U.S.C. Sec. 2991B-1; 42 U.S.C. Sec.  3032G; 42 U.S.C. 
Sec. 11705. In response to President Obama's 2009 Memorandum on Tribal 
Consultation requiring regular and meaningful consultation and 
collaboration with tribal officials, the Department of Defense 
published its policy and procedures to identify and ensure compliance 
``with the requirements of Presidential Memorandums, Executive orders, 
statutes, and regulations.'' U.S. Department of Defense, Department of 
Defense Instruction Number 4710.03: Consultation Policy With Native 
Hawaiian Organizations (Oct. 25, 2011). See Memorandum on Tribal 
Consultation (Nov. 5, 2009) (referring to Exec. Order No. 13175 (Nov. 
6, 2000)); Department of Defense Plan of Action to Implement The 
Policies and Directives of Executive Order 13175, Consultation and 
Coordination With Indian Tribal Governments, Progress Report (2011).
    \172\16 U.S.C. Sec.  396d; 16 U.S.C. Sec.  410jj-7; 16 U.S.C. Sec.  
470i; 16 U.S.C. Sec.  6401; 20 U.S.C. Sec.  4441; 20 U.S.C. Sec.  7514; 
and 25 U.S.C. Sec.  4221.
---------------------------------------------------------------------------

Separate is not equal: the Secretary of the Interior has failed to act 
        to uphold the federal trust responsibility

    The Committee has compiled an extensive oversight record in 
the 112th Congress, conducting 32 oversight hearings, 5 field 
hearings, and 12 roundtables to study the unique problems of 
Native Americans, which includes the American Indian, Native 
Hawaiian, and Alaska Native people. The Committee reviewed, 
monitored, and studied federal agency programs, activities, and 
policy implementation related to Native Americans and the trust 
responsibility of the United States. While most of these 
oversight activities produced information related to Native 
Hawaiians, approximately ten specifically focused in part, and 
another three focused exclusively on Native Hawaiians or 
programs for their benefit.
    Over the last 21 months, as part of its oversight duties, 
the Committee conducted seventeen site visits to Native 
Hawaiian homelands, historical and sacred sites, natural and 
cultural resources project sites, agricultural sites, public 
charter schools, Native language immersion programs, housing, 
health care, social services, senior and childcare programs and 
facilities; and, economic development activities and projects 
in Hawaii. The Committee has also received and reviewed oral 
and written testimony from federal, state, and tribal 
officials, dozens of Native Hawaiian educators, housing 
officials, community representatives and leaders, business 
leaders, professors of Federal Indian Law, experts in Native 
Hawaiian history, law and legal precedents, and many other 
Native Hawaiian and Native American organizations.
    Witnesses testified before the Committee explaining the 
numerous obstacles Native Hawaiians face because the Federal 
Government continues to retain oversight over Native Hawaiian 
affairs, yet allows for the implementation of federal law by 
state offices. This delegation of authority disregards federal 
mandates and ignores the Federal Government's trust 
responsibility to Native Hawaiians. ``The enactment of S. 675 . 
. . would address this inequity and provide for Native Hawaiian 
control, management and accountability of native lands and 
resources, thereby providing parity in federal policies towards 
American Indians, Alaska Natives and Native Hawaiians.''\173\
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    \173\Advancing the Federal-Tribal Relationship through Self-
Governance and Self-Determination: Oversight Hearing Before the S. 
Comm. on Indian Affairs, 112th Cong. (Sept. 20, 2012) (statement of D. 
Noelani Kalipi, President, TiLeaf Group) (``These situations best 
illustrate the challenges faced by Native Hawaiians and the 
consequences of not being afforded the opportunity to federal policies 
that encourage and empower native peoples to manage their lands and 
resources within the federal framework of self-determination,''). Ms. 
Kalipi specifically mentioned the HHCA (a Federal statute adopted into 
the State of Hawaii's Constitiutuion as a condition of statehood 
``subject to amendment or repeal only with the consent of the United 
States'') and its implementation by DHHL (a state agency) and the 
complications that can arise when state officials are faced with having 
to choose between what is in the best interest of the State versus what 
it is the best interest of the Native Hawaiians). See, e.g., Hawaii 
Admissions Act, Pub. L. 86-3, 73 Stat. 4.
---------------------------------------------------------------------------
    The broad scope of the Committee's oversight has 
established a notable failure of the United States to afford 
the Native Hawaiian people the same rights, the same 
privileges, and the same opportunities as every other 
federally-recognized Native people. This failure is 
particularly egregious with respect to DOI and the Office of 
Native Hawaiian Relations.
    In 2004, Congress created the Office of Native Hawaiian 
Relations within the Office of the Secretary of the Interior 
with the following duties: (1) effectuate and implement the 
special legal relationship between the Native Hawaiian people 
and the United States; (2) continue the process of 
reconciliation with the Native Hawaiian people; and (3) fully 
integrate the principle and practice of meaningful, regular, 
and appropriate consultation with the Native Hawaiian people by 
assuring timely notification of and prior consultation with the 
Native Hawaiian people before any federal agency takes any 
actions that may have the potential to significantly affect 
Native Hawaiian resources, rights, or lands.\174\
---------------------------------------------------------------------------
    \174\On January 22, 2004, the U.S. Senate approved funding for an 
Office of Native Hawaiian Relations based in Washington, D.C., thereby 
highlighting the special relationship between the U.S. government and 
Native Hawaiians. President Bush signed the bill into law as part of 
the Omnibus Appropriations Act for fiscal year 2004. Pub. L. No. 108-
199, 118 Stat. 445 (2004) (referring specifically to section 148).
---------------------------------------------------------------------------
    Congress delegated authority for the federal recognition of 
tribes to the executive branch. This authority flows from the 
President to the Secretary of the Interior to the Bureau of 
Indian Affairs. Yet, regarding Native Hawaiians, the Secretary 
of the Interior did not delegate this authority to the Bureau 
of Indian Affairs. The Office of Native Hawaiian Relations has 
been designated by the Secretary of the Interior to administer 
the responsibilities of the United States under the Hawaiian 
Home Lands Recovery Act\175\ and the HHCA, which include 
advancing the interests of the beneficiaries, and assisting the 
beneficiaries and the State of Hawaii Department of Hawaiian 
Home Lands (DHHL) in obtaining assistance from programs of the 
Department of the Interior and other federal agencies that will 
promote homesteading opportunities, economic self-sufficiency, 
and social well-being of the beneficiaries. When these 
responsibilities are ignored, or transferred to the State of 
Hawaii, as witnesses have noted often occurs, the Federal 
Government fails to uphold its trust responsibility to the 
Native Hawaiian people.
---------------------------------------------------------------------------
    \175\Pub. L. No. 104-42, 109 Stat. 353 (1995).
---------------------------------------------------------------------------
    The Department of the Interior (DOI) has a trust 
responsibility to all Native Americans: American Indians, 
Native Hawaiians, and Alaska Natives. Yet, the Office of Native 
Hawaiian Relations is not located within the framework of the 
Assistant Secretary of Indian Affairs within DOI. The Assistant 
Secretary of Indian Affairs has the responsibility to fulfill 
DOI's trust responsibilities to all Native American tribes and 
individuals, as well as promoting the self-determination and 
economic well-being of the tribes and their members. As it is 
currently structured, the Office of Native Hawaiian Relations 
does not engage on behalf of the United States, despite the 
mandate to ``effectuate and implement the special relationship 
between the Native Hawaiian people and the United States'' and 
to ``fully integrate the principle and practice of meaningful . 
. . consultation with the Native Hawaiian people . . . before 
any Federal agency takes actions that may have the potential to 
significantly affect Native Hawaiian resources, rights, or 
lands.''\176\
---------------------------------------------------------------------------
    \176\Pub. L. No. 108-199, 118 Stat. 445 (2004).
---------------------------------------------------------------------------
    The Committee notes the support of the current Assistant 
Secretary of Indian Affairs, and urges the Secretary of the 
Interior to take affirmative steps to carry out the federal 
trust responsibility. ``The Native Hawaiians are in a very 
similar situation to the Native Alaskans and American Indians 
on the mainland. There is every reason to believe that they 
should also have a government-to-government relationship with 
the United States. I personally fully support that . . . [The 
Native Hawaiians] deserve to have a similar treatment as 
similar entities . . . and I hope [S. 675] passes as it is 
because I would look forward to implementing such a bill, if I 
were confirmed.''\177\ In order to fulfill its federal trust 
responsibility, American Indians, Native Hawaiians, and Alaska 
Natives must all be organized under Indian Affairs at DOI.
---------------------------------------------------------------------------
    \177\The President's Nomination of Kevin K. Washburn to be 
Assistant Secretary--Indian Affairs, Department of the Interior: 
Nomination Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 
(Sept. 14, 2012) (statement of Kevin K. Washburn).
---------------------------------------------------------------------------
    The Committee has concluded that the conditions and 
challenges facing Native Hawaiians mirror those found in 
American Indian and Alaska Native communities across the 
nation. These challenges are daunting, the problems seemingly 
intractable, the health disparities and other statistical 
inequities deeply troubling. Without full and equal access to 
the prevailing federal policy on self-determination, and the 
ability to once again exercise their right to be self-
governing, Native Hawaiians will continue to lack parity under 
federal law, and the purpose of the more than 150 federal 
statutes enacted over the past 90 years will be frustrated, and 
the intent and authority of the Congress undermined.

Congress has consistently fulfilled its trust responsibilities to 
        Native Hawaiians and must act to correct the failure of the 
        Secretary of the Interior

    ``Congress has created and continues to fund programs to 
address the Native Hawaiian needs in the areas of health, 
education, welfare and housing, but has failed to uphold the 
final and most important piece of the trust relationship with 
Native Hawaiians, a guaranteed right to self-governance.''\178\ 
However well-intentioned, without a government-to-government 
relationship between the United States and Native Hawaiians, 
the programs and mechanisms created to help manage Native 
Hawaiian land trusts and resources, including the Office of 
Native Hawaiian Relations, will continue to prevent self-
governance and self-determination by Native Hawaiians.\179\ 
``[T]he management of Native Hawaiian resources within the 
state framework does not result in self-governance and self-
determination by Native Hawaiians, nor does it result in Native 
Hawaiian control and management of resources--a fundamental 
element of self-rule under the federal framework.''\180\
---------------------------------------------------------------------------
    \178\S Comm. on Indian Affairs: Business Meeting to consider S. 
675, S. 1345, S. 1684 (Sept. 13, 2012) (statement of Sen. Daniel K. 
Akaka, Chairman, S. Comm. on Indian Affairs).
    \179\Advancing the Federal-Tribal Relationship through Self-
Governance and Self-Determination: Oversight Hearing Before the S. 
Comm. on Indian Affairs, 112th Cong. (Sept. 20, 2012) (statement of D. 
Noelani Kalipi, President, TiLeaf Group) (noting that ``without access 
to the federal framework of self-governance and self-determination . . 
. Native Hawaiians don't have the same tools available to manage and 
control their resources'').
    \180\Id.
---------------------------------------------------------------------------
    While the history of the United States is replete with 
examples of unequal treatment of certain groups of people, one 
of the things that make our nation so great is that our system 
of laws allows us to change, correct mistakes, and right past 
wrongs. ``It is our responsibility as a nation to do right by 
America's Native people, those who exercised sovereignty on 
lands that later became part of the United States. While we can 
never change the past, we have the power to change the 
future.''\181\ The United States has recognized hundreds of 
Alaska Native and American Indian communities. The Committee 
has concluded that it is long past time for the Native Hawaiian 
people to have the same rights, the same privileges, and the 
same opportunities as every other federally-recognized Native 
people.
---------------------------------------------------------------------------
    \181\158 Cong. Rec. S7765-66 (daily ed. Dec. 12, 2012) (statement 
of Sen. Daniel K. Akaka).
---------------------------------------------------------------------------

                          NEED FOR LEGISLATION

    The Native Hawaiian Government Reorganization Act of 2012 
is necessary legislation for a number of compelling reasons.
    The primary goal of S. 675 is to establish a process for 
the reorganization and federal recognition 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 people of the United 
States on whose behalf it may exercise its powers under the 
Indian Commerce Clause and other relevant provisions of the 
Constitution. 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. To avoid this, consultation with Native 
Hawaiians must be emphasized.\182\ 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.''\183\
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    \182\Hawaiian Homeownership Act of 2011: Oversight Field Hearing on 
S. 65 Before the S. Comm. on Indian Affairs, 112th Cong. (Apr. 13, 
2012) (statement of Robin Danner, President/CEO, Council for Native 
Hawaiian Advancement (CNHA)).
    \183\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, Congress has pursued a strong 
policy of tribal self-determination and self-government, with 
the ``overriding goal of encouraging tribal self-sufficiency 
and economic development.''\184\ The results of this policy 
have been striking. As the co-director of the Harvard Project 
on American Indian Economic Development, Joseph P. Kalt, 
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.''\185\ 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.''\186\ By 
establishing a process that would lead to the reorganization of 
a sovereign Native Hawaiian government, S. 675 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.
---------------------------------------------------------------------------
    \184\California v. Cabazon Band of Mission Indians, 480 U.S. 202, 
216 (1987) (citations omitted).
    \185\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). 
``[F]ederal promotion of tribal self-government under formal policies 
known as `self-determination' is turning out to be, after a century or 
more of failed efforts to improve the lives of the U.S. indigenous 
people, the only strategy that has worked. In so doing, the strategy is 
improving the well-being of its poorest and, arguably, historically 
most oppressed and disempowered people.'' Stephen Cornell & Joseph P. 
Kalt, American Indian Self-Determination: The Political Economy of a 
Policy that Works 15 (Harvard Kennedy School Faculty Research Working 
Paper Series, Paper No. RWP10-043, 2010) (quoting Richard M. Nixon, 
Special Message on Indian Affairs (July 8, 1970). In July 2009, then-
Assistant Secretary of the Interior for Indian Affairs, Larry Echo Hawk 
signed a Memorandum of Understanding (MOU) with Harvard University's 
Project on American Indian Economic Development ``whereby the 
Department and Harvard will collaborate on promoting Tribal economic 
development through research, outreach and leadership education.'' 
Strengthening Self-Sufficiency: Overcoming Barriers to Economic 
Development in Native Communities Oversight Field Hearing Before the S. 
Comm. on Indian Affairs, 112th Cong. 8, 16 (Aug. 17, 2011) (statement 
of Michael R. Smith, Deputy Bureau Director, Field Operations, Bureau 
of Indian Affairs, U.S. Department of the Interior) (citations 
omitted). See also Strengthening Self-Sufficiency: Overcoming Barriers 
to Economic Development in Native Communities Oversight Field Hearing 
Before the S. Comm. on Indian Affairs, 112th Cong. 32 (Aug. 17, 2011) 
(statement of Robin Puanani Danner, President & CEO, Council for Native 
Hawaiian Advancement).
    \186\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.'').
---------------------------------------------------------------------------

Reconciliation and remedy to a historical wrong

    Much of the evolving federal policy and history with the 
Indian Tribes was the result of balancing the nation's founding 
ideals against its need for civil order. The federal policy of 
recognizing the sovereignty of tribes, and promoting the self-
determination and self-governance of Native nations through 
their tribal governments is in part, a testament to the 
American understanding that (1) tribal peoples never consented 
to be governed by the United States, and (2) that the power of 
tribal governments emanates from the consent of their 
membership. Over time, the United States came to view its 
relationship with the Indian tribes as one of a trustee to a 
ward, and of a greater nation to a dependent nation.
    The last recognized government of the Native Hawaiian 
people was the Kingdom of Hawaii, built on the foundation of 
Native Hawaiian culture and sovereignty in the Hawaiian 
archipelago from time immemorial. Prior to the illegal 
overthrow in 1893, the United States recognized the Kingdom of 
Hawaii as foreign nation, but it is clear that the United 
States' attitude and policies towards the Kingdom of Hawaii 
evolved in a manner consistent with its attitude, policies and 
treatment of Indian Tribes as dependent nations in need of 
protection. This is evidenced by President Johnson's message to 
Congress on December 9, 1868 wherein he states, ``It is known 
and felt by the Hawaiian Government and people that their 
Government and institutions are feeble and precarious; that the 
United States, being so near a neighbor, would be unwilling to 
see the islands pass under foreign control. Their prosperity is 
continually disturbed by expectations and alarms of unfriendly 
political proceedings, as well from the United States as from 
other foreign powers.''
    In enacting the Apology Resolution, the United States 
acknowledged that, in contravention of existing treaties of 
friendship and peace, the United States Minister John L. 
Stevens ``conspired with a small group of non-Hawaiian 
residents of the Kingdom of Hawaii, including citizens of the 
United States, to overthrow the indigenous and lawful 
government of Hawaii,'' by landing armed naval forces of the 
United States to support the illegal overthrow of the Kingdom 
of Hawaii and extending ``diplomatic recognition to the 
Provisional Government that was formed by the conspirators 
without the consent of the Native Hawaiian people or the lawful 
Government of Hawaii.''
    The Apology Resolution recognizes that actions by the 
United States resulted in the suppression of the ``inherent 
sovereignty of the Native Hawaiian people'' and the 
``deprivation of the rights of Native Hawaiians to self-
determination.'' Further, the Apology Resolution finds that 
``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.'' The United States committed 
itself to a process of reconciliation, urging the President to 
``support reconciliation efforts between the United States and 
the Native Hawaiian people.''
    As a result of the Apology Resolution, the U.S. Departments 
of Justice and the Interior conducted a series of 
reconciliation hearings in Hawaii in December 1999, resulting 
in the issuance of the a report on the reconciliation process 
between the Federal Government and Native Hawaiians on October 
23, 2000, entitled From Mauka to Makai: The River of Justice 
Must Flow Freely. The report notes that reconciliation requires 
``actions to rectify the injustices and compensation for the 
harm.''
    The Native Hawaiian Government Reorganization Act of 2012 
provides a remedy for the unjust suppression of the Native 
Hawaiian right to self-determination and self-governance within 
the framework of existing federal law. Because the bill simply 
empowers the Secretary of the Interior to recognize a Native 
Hawaiian government once reorganized by the Native Hawaiian 
people, it serves as the first necessary step towards 
reconciliation. As is the case with other federally-recognized 
tribes, the contours of the federal relationship with the 
Native Hawaiian people can be further defined by future 
Congresses with appropriate and representative consultation 
with the Native Hawaiian government.
    The Native Hawaiian Government Reorganization Act 
implements the key recommendation called for in the 2000 report 
issued by the Departments of Justice and the Interior, 
advancing the reconciliation process Congress called for in the 
Apology Resolution nearly 20 years ago.

Necessary tool for the preservation and perpetuation of an indigenous 
        people and culture

    ``Native self-governance leads to Native self-sufficiency, 
resulting in our continued ability to be productive and 
contribute to the well-being of our families, our communities, 
and our great nation.''\187\ Self-governance would allow Native 
Hawaiian people to exert control over their people and 
communities--as they had done for thousands of years before the 
overthrow of the Kingdom of Hawaii. Self-governance is vital to 
the survival of the Native Hawaiian people and their culture. 
As explained in the Apology Resolution, self-governance is a 
fundamental right that Native Hawaiians, like all other Native 
Americans, should be allowed to practice. 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.
---------------------------------------------------------------------------
    \187\Sen. Daniel K. Akaka, Final Speech to the Native Hawaiian 
Convention (Oct. 5, 2012).
---------------------------------------------------------------------------
    With the ability to control the decision-making process, 
Native Hawaiians could expand the level of services that it 
provides and has brought economic benefits to all Native 
Hawaiians: provide more housing, medical facilities, develop 
its economic base, and the course of the protection of natural 
resources. One of the great advantages of the federal policy of 
advancing Native self-determination through self-governance has 
been the wide range of tools afforded to Native people in their 
ability to perpetuate their traditional knowledge, 
perspectives, values and cultures for generations to come. 
Self-determination is the only federal policy to help Native 
people address health concerns and the socio-economic 
conditions of their communities in a manner that leads to 
greater self-sufficiency.\188\
---------------------------------------------------------------------------
    \188\``[T]he question was not whether the federal government had an 
interest in the affairs of the American Indian tribes, but rather `how 
that responsibility can be best fulfilled.' The answer adopted by the 
federal government was and remains self-determination through self-
governance and economic self-sufficiency.'' Stephen Cornell & Joseph P. 
Kalt, American Indian Self-Determination: The Political Economy of a 
Policy that Works 19 (Harvard Kennedy School Faculty Research Working 
Paper Series, Paper No. RWP10-043, 2010) (quoting Richard M. Nixon, 
Special Message on Indian Affairs (July 8, 1970).
---------------------------------------------------------------------------
    Self-governance ensures that, within the framework of 
federal law, Native people can exercise their legislative, 
judicial and executive authorities consistent with their 
cultural values and community norms. By doing so, tribes are 
able to develop their economies and address the health, safety 
and welfare concerns of their communities in a manner that 
ensures their indigenous cultures are perpetuated and their 
traditional lifeways continue to be relevant to future 
generations. Tribes have also used their sovereign authority to 
develop programs and services to retain and recover aspects of 
tribal life, such as the Native language and ceremonies, which 
may otherwise be lost.
    While the United States has clearly legislated to provide 
resources to assist the Native Hawaiian people in perpetuating 
their culture and language, and to improve the health and 
socio-economic conditions of their communities, a failure to 
recognize the self-governing authority of the Native Hawaiian 
people will always hamper the efficacy of these resources and 
deny Native Hawaiians some of the greatest tools available 
under existing federal law to perpetuating their culture and 
ensuring a healthy population.
    The Native Hawaiian Government Reorganization Act of 2012 
provides a process for the Native Hawaiian people to reorganize 
their representative government and petition to have that 
government recognized by the United States, providing an 
effective mechanism for the Native Hawaiian people to be self-
governing and to exercise legislative, judicial and executive 
authorities in a manner that is consistent with Native Hawaiian 
culture, lifeways and values.

Clarity and parity in federal policy

    The United States has long recognized the Native Hawaiian 
people as an indigenous people to whom it has a trust 
responsibility. Beginning in 1921, the Congress began enacting 
legislation to address the socio-economic conditions of Native 
Hawaiians and the protection of their collective rights and 
culture, sometimes in the same legislation it advanced for 
other Native American groups, and in other instances, as 
separate but parallel legislation.
    The rationale for separate legislation for Native Hawaiians 
was enunciated in the History, Jurisdiction, and a Summary of 
Legislative Activities of the United States Senate Select 
Committee on Indian Affairs during the Ninety-Fifth Congress, 
as it contemplated legislation to include the Native Hawaiian 
people in the Indian Education Act. The report states:

          [T]he committee concluded that simply expanding the 
        definition of ``Indian'' under present Federal laws to 
        include Native Hawaiians ignored the uniqueness of a 
        number of programs administered by the Bureau of Indian 
        Affairs which are premised on the existence of a tribal 
        government exercising powers of self-government. Native 
        Hawaiian organizations do not exercise comparable self-
        governing authority. However, the committee received 
        testimony which documented the Native Hawaiian's need 
        for supplemental educational services. The committee 
        amendment to S. 857, the Native Hawaiian Education Act, 
        was in the nature of a substitute, and established 
        separate educational programs for Native Hawaiians 
        identical to those provided by the Indian Education 
        Act.\189\
---------------------------------------------------------------------------
    \189\History, Jurisdiction, and a Summary of Legislative Activities 
of the S. Select Comm. on Indian Affairs, 95th Cong. 24 (1977-1978).

    This approach to meeting the federal trust responsibility 
to the Native Hawaiian people is common when the primary 
legislation relies on tribal government institutions in 
implementing key provisions, but when the legislation can be 
implemented without heavy reliance on the self-governing 
authority of tribes, Congress has generally elected to 
legislate on behalf of Native Hawaiians in the same legislation 
as American Indians and Alaska Natives.
    This disparate treatment is a direct result of U.S. action 
aiding in the illegal overthrow of the Kingdom of Hawaii, 
effectively depriving Native Hawaiians of their traditional 
government. ``[T]his bill does not propose anything new nor 
does it afford special treatment to Native Hawaiians. Rather, 
this bill acknowledges our special relationship with Native 
Hawaiians and places them on equal footing with the other 
aboriginal, indigenous people of the United States. It merely 
extends the Federal policy of self-governance and self-
determination to Native Hawaiians.''\190\
---------------------------------------------------------------------------
    \190\Joint Statement of Senators Daniel K. Akaka and Daniel K. 
Inouye Before the House Judiciary Subcommittee on the Constitution 
regarding H.R. 309/S. 147, the Native Hawaiian Reorganization Act 3 
(July 19, 2005).
---------------------------------------------------------------------------
    The federal policy towards its Native nations is to uphold 
the trust responsibility in three primary ways: (1) the 
provision of programs and services to address socio-economic 
needs; (2) the protection of the collective rights of the 
Native people; and (3) assuring the right to self-governance 
within the framework of federal law.
    For more than 90 years, Congress has acted to address the 
socio-economic needs and protect the collective rights of the 
Native Hawaiian people, enacting over 150 statutes. S. 675 
fulfills the third and final area of the trust responsibility 
by ensuring that the Native Hawaiian people have a mechanism to 
reorganize their representative Native government and seek its 
recognition by the United States.
    ``[S. 675] is nothing more than another manifestation of 
the bedrock of our federal policy toward indigenous 
people.''\191\ With its passage, the Congress ensures parity in 
federal policy for all recognized Native people and clarifies 
the federal relationship with the Native Hawaiian people, 
allowing them full access to the prevailing federal policy on 
self-determination and the ability to exercise their right to 
self-governance.\192\
---------------------------------------------------------------------------
    \191\Joint Statement of Congressmen Neil Abercrombie and Ed Case 
Before the House Judiciary Subcommittee on the Constitution on H.R. 
309/S. 147, the Native Hawaiian Government Reorganization Act of 2005, 
2-3 (July 19, 2005).
    \192\Advancing the Federal-Tribal Relationship through Self-
Governance and Self-Determination: Oversight Hearing Before the S. 
Comm. on Indian Affairs, 112th Cong. (Sept. 20, 2012) (statement of 
Sen. Daniel K. Akaka, Chairman, S. Comm on Indian Affairs).
---------------------------------------------------------------------------

Administrative efficiency and best use of federal and Native Hawaiian 
        resources

    As was noted earlier, existing federal law requires the 
provision of services to and consultation with the Native 
Hawaiian people by a variety of federal departments and 
agencies. Effective and efficient administration of programs 
designed to provide services and meet consultation requirements 
are hampered by the lack of a formal government-to-government 
relationship through which federal agencies can work. As a 
result, federal agencies must develop separate programs, 
regulations, and processes for meeting responsibilities to 
Native Hawaiians than are developed for meeting the same 
responsibilities to other Native people that have a government-
to-government relationship with the United States. This results 
in duplicative efforts and an inefficient use of resources that 
could otherwise be dedicated to programmatic solutions rather 
than administrative costs.
    The disparate treatment of Native Hawaiians and a lack of 
centralized services also results in a duplication of efforts 
by Native Hawaiian organizations seeking to serve the same 
populations, particularly in the areas of outreach and program 
administration. One of the core efficiencies that tribal 
governments represent for their members is a centralized place 
for accessing a variety of programs, services, and solutions. 
Without a recognized representative government, Native 
Hawaiians must learn about and access a multiplicity of 
organizations providing services, often focused around an area 
of concern, a locality, or both.
    Finally, the absence of a recognized government 
representing the Native Hawaiian people results in undue 
burdens and inefficiencies for organizations and agencies 
seeking to work or consult with the Native Hawaiian community. 
For example, both the State of Hawaii and the United States 
have laws governing the treatment of Native graves and funerary 
objects, particularly when found in the course of development.
    The State of Hawaii burial protection laws require 
developers to consult with the lineal and cultural descendants 
of burials that may be found on a development site in advance 
of development. The absence of a recognized Native government 
requires developers to have a deeper understanding of the 
history and family composition of an area where they are 
proposing development in order to effectively meet the state 
law requirements. They must conduct outreach and provide public 
opportunities for input into communities they may not know how 
best to reach. A recognized Native Hawaiian government could 
decrease the level of effort required by developers to comply 
with the applicable laws and increase the rates of success in 
effectively engaging the lineal and cultural descendants in a 
coordinated and timely fashion.
    By reorganizing a central and recognized representative 
government for the Native Hawaiian people, passage of S. 675, 
the Native Hawaiian Government Reorganization Act, will enhance 
efficiencies for: federal, state and local governments working 
with the Native Hawaiian community; the Native Hawaiian 
community members finding and successfully accessing 
appropriate and available programs and services; as well as 
other organizations and efforts seeking to work or consult with 
the Native Hawaiian people.

                          LEGISLATIVE HISTORY

    S. 675 was introduced on March 30, 2011, by Senator Akaka 
for himself and Senators Inouye, Begich and Murkowski, and 
referred to the Committee on Indian Affairs. S. 675 was 
identical to the version of the legislation marked up by the 
Committee in the 111th Congress, except for technical and 
conforming changes. On April 7, 2011, the bill was ordered by 
the Committee to be favorably reported without amendment. On 
September 13, 2012, the bill was ordered by the Committee to be 
reported favorably with an amendment in the nature of a 
substitute.
    A House companion measure to S. 675, H.R. 1250, was 
introduced on March 30, 2011, by Representative Hirono for 
herself and Representatives Bordallo, Boswell, Carnahan, Cole, 
Courtney, DeGette, Faleomavaega, Farr, Hanabusa, Hinchey, 
Honda, Kildee, Kucinich, Maloney, Matsui, McDermott, McIntyre, 
Napolitano, Payne, Roybal-Allard, Sablan, Stark, Walz, Woolsey, 
and Young, and referred to the Committee on Natural Resources. 
Representatives Andrews, Brady, Cohen, Jones, McCollum, Miller, 
and Rahall joined as co-sponsors on March 31, 2011. 
Representatives Boren, DeLauro, Grijalva, Lewis, Moore, Moran, 
Olver, Pastor, and Reyes joined as co-sponsors on April 1, 
2011. Representatives Frank, Garamendi, Lofgren, Zoe and 
Sarbanes joined as co-sponsors on April 6, 2011. 
Representatives Brown, Christensen, Chu, Conyers, Markey, and 
Rangel joined on April 12, 2011. The Natural Resources 
Committee has not met to consider the bill as of this report.
    In the 111th Congress, 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.
    In the 110th Congress, S. 310 was introduced on January 17, 
2007, by Senator Akaka for himself and Senators Inouye, 
Cantwell, Dodd, Murkowski, Stevens, Coleman, Dorgan, and Smith, 
and referred to the Committee on Indian Affairs. Senator 
Klobuchar became a cosponsor on December 3, 2007. A hearing was 
held before the Committee on Indian Affairs on May 3, 2007. On 
May 10, 2007, the bill was ordered by the Committee to be 
favorably reported without amendment to the full Senate.
    A House companion measure to S. 310, H.R. 505, was 
introduced on January 17, 2007, by Representative Abercrombie, 
and referred to the Committee on Natural Resources. On May 2, 
2007, the Natural Resources Committee met to consider the bill. 
The bill was ordered favorably reported to the House of 
Representatives by voice vote. The bill passed the House on 
October 24, 2007.
    In the 109th Congress, S. 147 was introduced on January 25, 
2005, by Senator Akaka for himself and Senator Inouye, and 
referred to the Committee on Indian Affairs. Senator Smith of 
Oregon became a cosponsor on February 16, 2005, Senator 
Cantwell of Washington on February 18, 2005, and Senator 
Murkowski of Alaska on March 8, 2005. A hearing on S. 147 was 
held before the Committee on March 1, 2005, and on March 9, 
2005, the bill, with an amendment in the nature of a 
substitute, was ordered by the Committee to be favorably 
reported to the full Senate. After the business meeting on 
March 9, 2005, when the bill was ordered reported with the 
substitute amendment, the following additional Senators joined 
as cosponsors: Senator Coleman of Minnesota on March 10, 2005, 
Senator Dorgan of North Dakota on April 4, 2005, Senator 
Stevens of Alaska on April 5, 2005, and Senator Graham of South 
Carolina on May 11, 2005.
    A House companion measure to S. 147, H.R. 309, was 
introduced on January 25, 2005, by Representative Abercrombie, 
for himself and Representatives Case, Grijalva, Young, Moran, 
Bordallo and Faleomavaega, and referred to the Committee on 
Resources. On February 1, 2005, Representative Rahall joined as 
a cosponsor.
    In the 108th Congress, S. 344 was introduced on February 
11, 2003, by Senator Akaka, for himself and Senator Inouye, and 
referred to the Committee on Indian Affairs. Senator Reid of 
Nevada became a cosponsor on February 27, 2003, Senator Stevens 
of Alaska on March 17, 2003, Senator Hatch of Utah on November 
12, 2003, Senator Smith of Oregon on December 9, 2003, Senator 
Campbell of Colorado on April 21, 2004, and Senator Carper of 
Delaware on June 24, 2004. A hearing on S. 344 was held before 
the Committee on Indian Affairs on February 25, 2003. S. 344 
was ordered favorably reported to the full Senate by the 
Committee on Indian Affairs on May 14, 2003.
    A House companion measure to S. 344, H.R. 665, was 
introduced on February 11, 2003, by Representative Abercrombie, 
for himself and Representative Case, and thereafter referred to 
the Committee on Resources.
    In the 107th Congress, S. 746 was introduced on April 6, 
2001, by Senator Akaka, for himself and Senator Inouye, and 
thereafter referred to the Committee on Indian Affairs. On July 
24, 2001, S. 746 was ordered favorably reported to the full 
Senate. The Committee report accompanying the bill was S. Rep. 
No. 107-66.
    A House companion measure to S. 746, H.R. 617, was 
introduced in the House of Representatives by Representative 
Neil Abercrombie, for himself and Representatives Patsy Mink, 
Eni Faleomavaega, James Hansen, Dale Kildee, Nick Rahall, and 
Don Young, and thereafter referred to the Committee on 
Resources. H.R. 617 was ordered favorably reported to the full 
House of Representatives on May 16, 2001. S. 746 and H.R. 617 
were not acted upon prior to the sine die adjournment of the 
107th session of Congress.
    In the 106th Congress, S. 2899 was introduced by Senator 
Akaka, for himself and Senator Inouye, and referred to the 
Committee on Indian Affairs. A House companion measure to S. 
2899, H.R. 4904, was introduced in the House of Representatives 
and thereafter referred to the Committee on Resources. The 
Committee and the Committee on Resources held five consecutive 
days of joint hearings on S. 2899 and H.R. 4904 in Hawai`i from 
Monday, August 28, through Friday, September 1, 2000. The 
Committee held an additional hearing on S. 2899 in Washington 
D.C. on September 13, 2000. S. 2899 was ordered favorably 
reported to the full Senate by the Committee on September 13, 
2000. The Committee report accompanying the bill was Senate 
Report 106-424. H.R. 4904 was ordered favorably reported by the 
House Resources Committee and passed the House on September 26, 
2000. H.R. 4904 failed to pass the Senate before the sine die 
adjournment of the 106th session of the Congress.

         SUMMARY OF THE AMENDMENT IN THE NATURE OF A SUBSTITUTE

    A number of amendments were made to S. 675, all of which 
were included in a substitute amendment accepted by the 
Committee on September 13, 2012. These changes were made to 
streamline the legislation and recognize the work of the State 
of Hawaii's Native Hawaiian Roll Commission, tasked with 
establishing a base roll of Native Hawaiians interested in 
reorganizing a Native Hawaiian government.

           SECTION-BY-SECTION ANALYSIS OF S. 675, AS AMENDED

Section 1. Short title

    Section 1 states that this Act may be cited as the ``Native 
Hawaiian Government Reorganization Act of 2012''.

Section 2. Findings

    Section 2 establishes that Congress finds that, like 
American Indians and Alaska Natives, the Native Hawaiian 
people, having never relinquished claims to inherent 
sovereignty, have a special political and legal relationship to 
the United States, arising out of their status as indigenous, 
Native people. Section 2 also establishes that Congress 
possesses and has exercised its constitutional authority to 
address the conditions of the Native Hawaiian people in more 
than 150 federal laws, including adopting the Hawaiian Homes 
Commission Act of 1920 and the Hawaii Admissions Act in 1959. 
This section also identifies other state, federal and 
international support for the purpose of this legislation.

Section 3. Definitions

    Defines various terms used in the Act.

Section 4. United States policy and purpose

    Section 4 provides the following: Congress possesses and 
exercises the constitutional authority to address Native 
Hawaiian conditions; the Native Hawaiian people have the right 
to autonomy in internal affairs, an inherent right of self-
determination and self-governance; the Native Hawaiian people 
have the right to reorganize and the right to become 
economically self-sufficient; the United States reaffirms the 
special political and legal relationship between the United 
States and the Native Hawaiian people, and the authority 
delegated to the State of Hawaii in the Admissions Act; the 
United States ensures parity in policy and treatment among all 
federally-recognized indigenous groups; the U.S. will continue 
to engage in reconciliation process and political relations 
with the Native Hawaiian people; and the purpose of the bill is 
to provide a process for the reorganization and federal 
recognition of a single Native Hawaiian government that 
exercises the inherent powers of native self-government under 
existing federal law, with the same privileges and immunities 
as other federally-recognized Indian tribes.

Section 5. Reorganization of the Native Hawaiian governing entity

    Section 5 recognizes the Native Hawaiian right to 
reorganize under Section 16 of the Indian Reorganization Act; 
defines the membership of the Native Hawaiian people for the 
purposes of reorganization as those people appearing on the 
roll certified by the State of Hawaii Native Hawaiian Roll 
Commission authorized under Act 195; provides for the 
establishment of an Interim Governing Council, tasked with 
preparing the Constitution and By-Laws and submitting them for 
Secretarial approval; and requires the Interim Governing 
Council, with assistance from the Secretary, to conduct the 
election of officers of the Native Hawaiian governing entity, 
then terminates the Council.

Section 6. Applicability of other Federal laws

    Section 6 provides the following: the Native Hawaiian 
Governing Entity has the inherent powers and privileges of 
self-government of an Indian Tribe, including the power to 
define its own membership, and will be listed as an Indian 
Tribe on the Federally Recognized Indian Tribe List; the Native 
Hawaiian Governing Entity is subject to the Indian Gaming 
Regulatory Act (IGRA) and its gaming prohibitions. Effectively, 
the Native Hawaiian Governing Entity will be barred from 
gaming, as all gaming in the State of Hawaii is prohibited 
under state law; and the Secretary may treat the Native 
Hawaiian governing entity as an Indian Tribe for the purpose of 
carrying out any activity authorized under the Indian 
Reorganization Act.

Section 7. Severability

    Section 7 provides that if any provision of the Act is held 
invalid, it is the intent of Congress that the remaining 
provisions remain in effect.

Section 8. Authorization of appropriations

    Section 8 authorizes the appropriation of such sums as are 
necessary to carry out the Act.

            COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

    In an open business meeting on September 13, 2012, the 
Committee on Indian Affairs, by voice vote, adopted S. 675 with 
an amendment in the nature of a substitute and ordered the bill 
reported to the Senate, with the recommendation that the Senate 
do pass S. 675 as reported.

                   COST AND BUDGETARY CONSIDERATIONS

    The cost estimate provided by the Congressional Budget 
Office pursuant to section 402 of the Congressional Budget Act 
of 1974 was not available for inclusion in this report. The 
estimate will be printed in either a supplemental report or the 
Congressional Record when it is available.

               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 to 
evaluate the regulatory and paperwork impact that would be 
incurred in carrying out the bill. The Committee believes that 
the regulatory impact of S. 675 will be minimal.

                        EXECUTIVE COMMUNICATIONS

    The Committee has received no communications from the 
Executive Branch regarding S. 675.

                        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. 675 will not affect any changes in existing 
law.

               ADDITIONAL VIEWS OF VICE CHAIRMAN BARRASSO

    Federal recognition of a Native group is of profound 
importance to many stakeholders--the Native group itself and 
its members, the United States and its citizens, local 
communities and the people who live in them. I understand how 
challenging, complex, and time-consuming the administrative 
recognition process is--the Committee has heard a great deal 
about those problems--and sympathize with groups that have gone 
through it or attempted to go through it.
    Nevertheless, it is my view that legislative recognition--
legislation that deems a group or tribe to be federally 
recognized--is not the right way to decide which groups should 
be recognized and which groups should not be recognized.
    That is a determination that can be best made by the 
Executive Branch of the Government following the regulations 
that have been adopted for that purpose, to analyze and 
evaluate of the historic, cultural, political, and other key 
factors that should go into the decision of whether a Native 
group should be formally recognized by the United States.
    Testifying about several recognition bills at a hearing 
before this Committee during the 110th Congress, the Director 
of the Office of Federal Acknowledgement at the Department of 
the Interior stated--

          Legislation such as S. 514, S. 724, S. 1058, and H.R. 
        1294 [recognition bills introduced in the 110th 
        Congress] would allow these groups to bypass this [the 
        Federal acknowledgement] process--allowing them to 
        avoid the scrutiny to which other groups have been 
        subjected. The Administration supports all groups going 
        through the Federal acknowledgment process under 25 CFR 
        Part 83.1.

    The Department's witness went on to point out that, in 
light of the importance and implications of recognition 
decisions, the Department adopted its Federal acknowledgment 
regulations at 25 CFR Part 83 in 1978 in recognition of ``the 
need to end ad hoc decision making and adopt uniform 
regulations for Federal acknowledgment.''
    I do know and appreciate how important this bill is to the 
Chairman and to many Native Hawaiian people in his home state. 
However, I feel that the policy should be the same for all 
Native groups--they should go through the administrative 
acknowledgement process to be federally recognized. Although 
there is a reorganization process contemplated by the bill as 
amended in the business meeting on September 13, 2012, it is, 
in effect, a legislative recognition of the Native Hawaiian 
entity. For that reason I cannot support the bill.

                                                     John Barrasso.

                                  
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