[Senate Report 112-251]
[From the U.S. Government Publishing Office]
Calendar No. 568
112th Congress Report
SENATE
2d Session 112-251
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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.
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\51\42 Stat. 108 (1921). This Act is now part of Hawaii's State
Constitution. See Haw. Const. art. XII.
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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.
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\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.
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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\
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\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.
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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).
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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\
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\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).
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``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).
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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.
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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).
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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.
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\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.
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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\
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\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).
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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\
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\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.
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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.
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\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).
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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\
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\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.
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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.
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\104\Berger, supra note 55, at 1195 (citations omitted).
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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\
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\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).
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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\
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\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.
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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.
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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\
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\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.
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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)).
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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\
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\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.
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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.
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\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.
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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\
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\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).
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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\
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\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).
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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\
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\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.
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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\
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\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\
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\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).
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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\
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\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).
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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\
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\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.
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\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.
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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).
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``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\
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\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).
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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).
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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\
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\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\
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\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\
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\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.
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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\
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\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).
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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\
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\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.
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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.
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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\
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\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).
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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.
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\175\Pub. L. No. 104-42, 109 Stat. 353 (1995).
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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\
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\176\Pub. L. No. 108-199, 118 Stat. 445 (2004).
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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.
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\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).
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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\
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\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.
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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.
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\181\158 Cong. Rec. S7765-66 (daily ed. Dec. 12, 2012) (statement
of Sen. Daniel K. Akaka).
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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.
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\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.'').
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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.
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\187\Sen. Daniel K. Akaka, Final Speech to the Native Hawaiian
Convention (Oct. 5, 2012).
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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\
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\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).
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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\
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\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\
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\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).
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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\
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\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).
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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.