[DOCID: f:sr260.110]
From the Senate Reports Online via GPO Access
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Calendar No. 567
110th Congress Report
SENATE
2d Session 110-260
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TO EXPRESS THE POLICY OF THE UNITED STATES REGARDING THE UNITED STATES
RELATIONSHIP WITH NATIVE HAWAIIANS AND TO PROVIDE A PROCESS FOR THE
RECOGNITION BY THE UNITED STATES OF THE NATIVE HAWAIIAN GOVERNING
ENTITY
_______
February 5, 2008.--Ordered to be printed
_______
Mr. Dorgan, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 310]
The Committee on Indian Affairs, to which was referred the
bill (S. 310) 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 without
amendment and recommends that the bill do pass.
PURPOSE
The purpose of S. 310 is to establish a process for the
reorganization of a Native Hawaiian government and, when that
process has been completed in accordance with the Act, to
reaffirm the special political and legal relationship between
the United States and the Native Hawaiian governing entity for
purposes of carrying on a government-to-government
relationship.
BACKGROUND AND HISTORY
S. 310 is the current bill that establishes a process for
the reorganization and recognition of a Native Hawaiian
governing entity. Similar bills have been introduced since
1999. These bills are the result of longstanding efforts to
address the impacts of the 1893 overthrow of the Native
Hawaiian Kingdom, an event that the United States participated
in and encouraged.
The language of S. 310 is identical to legislative language
that was negotiated between the Hawaii Congressional Delegation
and officials from the Department of Justice, Office of
Management and Budget, and the White House in the 109th
Congress. The language satisfactorily addresses concerns
expressed in a July 2005 letter from the Administration
regarding potential liability of the United States involving
land claims, the impact of S. 310 on military readiness,
gaming, and civil and criminal jurisdiction in Hawaii.
In 1993, Congress passed an Apology Resolution (P.L. 103-
150) extending an apology on behalf of the United States to the
Native Hawaiians for its role in the illegal overthrow of the
Native Hawaiian government and committing the United States to
support reconciliation efforts between the United States and
the Native Hawaiian people. In response to the Apology
Resolution, the Departments of the Interior and Justice
initiated a process of reconciliation in 1999 by conducting
meetings in Native Hawaiian communities. The result of these
reconciliation efforts was a joint report, From Mauka to Makai:
The River of Justice Must Flow Freely, from the two Departments
in 2000. Since the issuance of the report, the Senators from
Hawaii have introduced legislation to implement the findings of
the reconciliation report. This Committee held several hearings
on the matter, and has continued to hold hearings each
Congress.
Native Hawaiians are the indigenous, native people of
Hawaii with whom the United States has a trust responsibility.
Congress has repeatedly recognized the unique status of Native
Hawaiians since 1921. The long-standing policy of the United
States has been to protect and advance Native Hawaiian
interests.
Native Hawaiians continue to suffer the consequences of the
1893 overthrow of their indigenous government. Today, Native
Hawaiians continue to have higher rates of poverty and lower
incomes than non-Native Hawaiians in Hawaii.\1\ Establishing an
avenue for Native Hawaiians to reorganize a government will
provide opportunities for Native Hawaiians to exercise self-
governance and self-determination and develop their own
solutions to the problems faced by their communities. It
empowers them to preserve their cultural resources.
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\1\Census Bureau, Hawaii State Data Center, State of Hawaii Data
Book.
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Native Hawaiian society before european contact
Native Hawaiians are the indigenous, aboriginal people of
the island group that is today the State of Hawaii. Hawaii was
originally settled by voyagers from central and eastern
Polynesia, traveling immense distances in double-hulled
voyaging canoes and arriving in Hawaii perhaps as early as 300
A.D.
Hundreds of years of Hawaiian isolation followed the end of
the era of ``long voyages.'' \2\ During these centuries, the
Native Hawaiians evolved a system of self-governance and a
highly organized, self-sufficient, subsistent social system
based on communal land tenure with a sophisticated language,
culture, and religion. There was no concept of private land
ownership in early Hawaiian thought. The communal nature of the
economy and the structure of the society resulted in values
strikingly different from those prevalent in more competitive
western economies and societies.
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\2\Id.
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Hawaii's social, economic, and political system was highly
developed and evolving, and its population, conservatively
estimated to be at least 300,000, was relatively stable before
the arrival of the first European explorers.\3\
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\3\This estimate is conservative; other sources place the number at
one million. David E. Stannard, Before the Horror; the Population of
Hawaii on the Eve of Western Contact 59 (1989).
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European contact
Hawaii was ``discovered'' by Europeans in 1778, when the
first white foreigner, Captain James Cook of the British Royal
Navy, landed. Other foreign vessels soon followed on journeys
of exploration or trade.\4\ In the years following Cook's
arrival, warring Hawaiian chiefs used foreign weapons and
fought for control of Hawaii. In 1810, the Native Hawaiian
political, economic and social structure was unified under a
monarchy led by King Kamehameha I. The authority of the King
was derived from the gods, and he was a trustee of the land and
other natural resources of the islands which were held
communally.
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\4\E.S. & Elizabeth G. Handy, Native Planters in Old Hawaii 331
(1972).
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Western contact had an immediate and precipitous decline of
the Native Hawaiian population. Between Cook's arrival in 1778
and 1820, disease, famine, and war killed more than half of the
Native Hawaiian population. By 1866, only 57,000 Native
Hawaiians lived on the islands, compared to the stable pre-1778
population of at least 300,000. The impact of Western contact
was greater than the numbers can convey: old people were left
without the young adults who supported them; children were left
without parents or grandparents to instill traditional values
and practices. The result was a rending of the social fabric.
This devastating population loss was accompanied by
cultural destruction. Western sailors, merchants, and traders
did not abide by the Hawaii kapu (taboos) system or religious
practices. As a result, the chiefs began to imitate the
foreigners whose ships and arms were technologically more
advanced than their own.\5\ The kapu were abandoned soon after
the death of Kamehameha I.
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\5\Fuchs, supra at 8-9.
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Western merchants also forced rapid change in the islands'
economy. Initially, Hawaiian chiefs sought to trade for western
goods and weapons, taxing and working commoners to obtain the
supplies and valuable sandalwood needed for such trades. As
Hawaii's stock of sandalwood declined so did that trade, but it
was replaced by whaling and other mercantile activities.\6\
More than four-fifths of Hawaii's foreign commerce was
American; the whaling services industry and mercantile business
in Honolulu were almost entirely in American hands.\7\ Even the
communal ownership and cultivation of the land was soon
replaced by a western system of individual property ownership.
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\6\Fuchs, supra at 10-11; Kuykendall & Day, supra at 41-3;
MacKenzie supra at 5.
\7\Fuchs supra at 18-9; MacKenzie supra at 6, 9-10.
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The mass privatization of Native Hawaiian land
As the middle of the 19th century approached, the islands'
small non-Hawaiian population wielded an influence far in
excess of its size.\8\ These influential westerners sought to
limit the absolute power of the Hawaiian King over their legal
rights and to implement property law so that they could
accumulate and control land. These goals were achieved as a
result of foreign pressure.\9\
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\8\Felix S. Cohen, Handbook of Federal Indian Law 799 (2d ed.
1982).
\9\MacKenzie supra at 6.
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The Westerners' efforts were successful in 1840, when the
King of Hawaii promulgated a new constitution, establishing a
hereditary House of Nobles and an elected House of Commons. In
1842, the King authorized the Great Mahele, the division of
Hawaii's communal land system into private ownership between
himself and his royal successors, the chiefs and the Hawaiian
government. Ultimately, the Great Mahele led to the transfer of
substantial amounts of land into western hands. In 1848, the
King conveyed about 1.5 million of the approximately 4 million
acres in the islands to the konohiki (main chiefs). He reserved
about 1 million acres for himself and his royal successors
(``Crown Lands''), and allocated about 1.5 million acres to the
government of Hawaii (``Government Lands'').
All lands remained subject to the rights of native tenants.
However, in 1850, after the division was accomplished, an act
was passed permitting non-natives to purchase land from Native
Hawaiians in fee simple. This resulted in a dramatic
concentration of land ownership in plantations, estates, and
ranches owned by non-natives. The law implementing the Great
Mahele contemplated that the makaainana (commoners) would
receive a substantial portion of the distributed lands because
they were entitled to file claims to the lands that their
ancestors had cultivated. In the end, however, only 28,600
acres (less than 1% of the land) were awarded to about 8,000
individual Native Hawaiian farmers.\10\
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\10\MacKenzie, supra at 6-9. The maka'ainana failed to secure a
great portion of the land for a number of reasons. Many did not know of
or understand the new laws, could not afford the survey costs, feared
that a claim would be perceived as a betrayal of the new chief, were
unable to farm without the traditional common cultivation and
irrigation of large areas, were killed in epidemics or migrated to
cities. Id., at 8.
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United States enters into treaties with Native Hawaiian government
Ultimately, the 2,000 westerners who lived on the islands
obtained much of the profitable acreage from the commoners and
chiefs. The mutual interests of Americans living in Hawaii and
those living in the United States became increasingly clear.
American merchants and planters in Hawaii wanted access to
mainland markets and protection from European and Asian
domination. The United States developed a military and economic
interest in placing Hawaii within its sphere of influence.
Thus, in order to protect its interests, the United States
and Hawaii entered into a series of four treaties. American
advisors urged the King to pursue international recognition of
Hawaiian sovereignty, backed up by an American guarantee of
continued independence.
America's political influence in Hawaii was heightened by
the rapid growth of the island sugar industry which followed
the Mahele. The 1875 Convention on Commercial Reciprocity\11\
eliminated the American tariff on sugar from Hawaii and
virtually all tariffs that Hawaii had placed on American
products. Critically, it also prohibited Hawaii from giving
political, economic, or territorial preferences to any other
foreign power. When the Reciprocity Treaty was extended in
1887, the United States also obtained the right to establish a
military base at Pearl Harbor.
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\11\S. Exec. Doc. No. 52-77, 40-41 (1893) (describing 1842
statement).
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Overthrow of the Native Hawaiian government
In 1887, King Kalakaua appointed a prime minister who was
supported by the Native Hawaiian people and who was opposed to
granting a military base at Pearl Harbor as a part of the
Reciprocity Treaty. The business community, backed by the
Honolulu Rifles, a military group formed by the children of
American missionaries, forced the prime minister's resignation
and the enactment of a new constitution. The new constitution,
often referred to as the Bayonet Constitution due to the use of
militant force, reduced the King to a figure of minor
constitutional importance. It extended the right to vote to
western males, whether or not they were citizens of the
Hawaiian Kingdom. It also disenfranchised almost all native
voters by giving only residents with a specified income level
or amount of property the right to vote for members of the
House of Nobles. This resulted in representatives of the
westerners taking control of the legislature.
In 1891, Queen Liliuokalani came to power. Queen
Liliuokalani supported promulgating a new constitution that
would restore absolute control over the legislature to the
reigning sovereign. Realizing that the Hawaiian monarchy posed
a continuing threat to the unimpeded pursuit of their
interests, the westerners formed a Committee of Public Safety
to overthrow the Kingdom of Hawaii. Mercantile and sugar
interests also favored annexation by the United States to
ensure access on favorable terms to mainland markets and
protection from Asian conquest. The American annexation group
collaborated closely with the United States' Minister in
Hawaii.
On January 16, 1893, at the order of United States'
Minister John Stevens, a contingent of United States Marines
from the USS Boston marched through Honolulu to a building
located near both the government building and the palace. The
next day local non-Hawaiian revolutionaries seized the
government building and demanded that Queen Liliuokalani
abdicate the monarchy. Minister Stevens immediately recognized
the rebels' provisional government and placed it under the
United States' protection.
Upon hearing the news, United States President Benjamin
Harrison promptly sent an annexation treaty to the Senate for
ratification and denied any United States involvement in the
revolution. Before the Senate could act, however, President
Grover Cleveland assumed office and withdrew the treaty; he
also demanded that the Queen be restored. However, the Senate
Foreign Relations Committee issued a report ratifying Stevens'
actions and recognizing the provisional government of Hawaii.
In doing so, the Senate Foreign Relations Committee described
the relations between the United States and Native Hawaiian
government as unique because ``Hawaii has been all the time
under a virtual suzerainty [when a nation controls another
nation] of the United States.''\12\
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\12\S. Rep. No. 53-277 at 21 (1894) (emphasis added).
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Hawaii becomes a State of the Union
As a result of this impasse between President Cleveland and
the Senate, the United States government neither restored the
Queen nor annexed Hawaii. The Provisional Government of Hawaii
thus called a constitutional convention whose composition and
members it controlled.\13\ The convention promulgated a
constitution for the new Republic of Hawaii that imposed
property and income qualifications as prerequisites for the
franchise and for holding elected office.\14\ Article 101 of
the Constitution of the Republic of Hawaii required prospective
voters to swear an oath of support to the Republic and to
declare they would not, ``either directly or indirectly,
encourage or assist in the restoration or establishment of a
monarchical form of government in the Hawaiian Islands.'' The
overwhelming majority of the Native Hawaiian population, who
were loyal to their Queen, refused to swear such an oath and
were effectively disenfranchised.\15\
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\13\Kuykendall & Day supra at 183.
\14\Id at 184; MacKenzie supra at 13.
\15\Noenoe Silva, Ke Ku'e Loa Nei Makou: Kanaka Maoli Resistance to
Colonization 170 (1999) (Silva).
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In 1896, President William McKinley was elected as
President of the United States; he quickly sent the Senate
another annexation treaty. Simultaneously, the Native Hawaiian
people adopted resolutions which they sent to Congress stating
that they opposed annexation and wanted to be an independent
kingdom.\16\ The annexation treaty failed in the Senate because
a two-thirds majority could not be obtained as required under
the Treaty Clause of the U.S. Constitution.
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\16\W.A. Russ, The Hawaiian Republic (1894-1898) 198, 209 (1961).
The resolutions were signed by 21,269 people, representing more than
50% of the Native Hawaiian population at that time. Jon M. Van Dyke,
The Political Status of the Native Hawaiian People, 17 Yale L. & Pol'y
Rev. 95 at 103 & n.48 (citing Dan Nakaso, Anti-Annexation Petition
Rings Clear, Honolulu Advertiser, Aug. 5, 1998, at 1); Tom Coffman,
Nation Within: The Story of America's Annexation of the Nation of
Hawaii 273-82 (1998); Silva supra at 184-206.
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However, pro-annexation forces in the House of
Representatives introduced a Joint Resolution of Annexation in
that Chamber of Congress. Adoption of the Joint Resolution
required only a simple majority in each House of Congress. The
balance was tipped in favor of the Resolution by the United
States' entry into the Spanish-American War. American troops
were fighting in the Pacific, particularly in the Philippines,
and the United States needed to be sure of a Pacific base.\17\
In July 1898, the Joint Resolution was enacted, becoming ``the
fruit of approximately seventy-five years of expanding American
influence in Hawaii.''\18\
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\17\Kuykendall & Day, supra at 188; MacKenzie, supra at 14.
\18\Fuchs, supra at 36.
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On August 12, 1898, the Republic of Hawaii ceded
sovereignty and conveyed title to its public lands, including
the Government and Crown Lands, to the United States.\19\ In
1900, Congress passed the Hawaii Organic Act,\20\ establishing
a Hawaiian territorial government. Ultimately, Congress
admitted Hawaii to the Union as the fiftieth state with the
enactment of the Admission Act in 1959.
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\19\Joint Resolution for Annexing the Hawaiian Islands to the
United States, ch. 55, 30 Stat. 750, 751 (1898) (Annexation
Resolution).
\20\Act of April 30, 1900, ch. 339, 31 Stat. 141 (1900) (Organic
Act).
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RECOGNITION BY THE UNITED STATES OF OBLIGATIONS TO NATIVE HAWAIIANS
For over two hundred years, the United States Congress, the
Executive Branch, and the U.S. Supreme Court have recognized
certain legal rights and protections for America's indigenous
peoples. Since the founding of the United States, Congress has
exercised a constitutional authority over indigenous affairs
and has undertaken an enhanced duty of care for America's
indigenous peoples. This has been done in recognition of the
sovereignty possessed by the native people, which pre-existed
the formation of the United States. The Congress' exercise of
its constitutional authority is also premised upon the status
of the indigenous people as the original inhabitants of this
nation who occupied and exercised dominion and control over the
lands which the United States subsequently acquired.
The United States has recognized again and again that
Native Hawaiians are entitled to special rights and
considerations, and the Congress has enacted laws to give
expression to the respective obligations to Native Hawaiians.
As evidence of this special relationship, Congress has enacted
over one hundred fifty statutes addressing the conditions of
Native Hawaiians and providing them with benefits. The
recognition of a special relationship with Native Hawaiians is
not new, as Congress and the United States have historically
treated Native Hawaiians in a manner similar to the other
indigenous groups of America.
Hawaiian Homes Commission Act
Congress explicitly recognized the existence of a special
or trust relationship between the Native Hawaiian people and
the United States with the enactment of the Hawaiian Homes
Commission Act in 1921. Prior to the enactment of this law,
Congress received testimony from officials of the Executive
Branch analogizing the federal government's relationship and
responsibilities to Native Hawaiians as being similar to those
to other Native Americans--the federal government as trustee
and the Native American as the ward.
Beginning in the early 1800's, large amounts of land were
made available to foreigners and were eventually leased to them
in order to cultivate pineapple and sugar cane. Large numbers
of Native Hawaiians were forced off the lands that they had
both cared for and traditionally occupied. As a result, many
Native Hawaiians moved into the urban areas, often lived in
severely overcrowded tenements and rapidly contracted diseases
to which they had no immunities.
By 1920, due to the dramatic decline in the number of
Native Hawaiians in the decades leading up to and following the
overthrow, there were many people who concluded that the native
people of Hawaii were a ``dying race.'' If they were to be
saved from extinction, they must have the means of regaining
their connection to the land, the 'aina. In hearings on the
matter, Secretary of the Interior Franklin Lane explained the
trust relationship on which the statute was premised:
One thing that impressed me . . . was the fact that the
natives of the island who are our wards, I should say, and for
whom in a sense we are trustees, are falling off rapidly in
numbers and many of them are in poverty.\21\
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\21\H.R. Rep. No. 66-839, 66th Cong., 2d Sess., at 4 (1920).
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Secretary Lane explicitly analogized the relationship
between the United States and Native Hawaiians to the trust
relationship between the United States and other Native
Americans, explaining that special programs for Native
Hawaiians are fully supported by history and ``an extension of
the same idea'' that supports such programs for other
Indians.\22\
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\22\Hearings before the Committee on the Territories, House of
Representatives, 66th Cong., 2d Sess., on Proposed Amendments to the
Organic Act of the Territory of Hawaii , February 3, 4, 5, 7, and 10,
1920, at 129-130 (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 Solicitor's opinion stating that the setting
aside of 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) and at 167-
70 (colloquy between Representative Curry, Chair of the Committee, and
Representatives Dowell, and Humphreys, making the same analogy and
rejecting the objection that ``we have no government or tribe to deal
with here'').
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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.\23\
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\23\Id. at 39. Wise's testimony was also quoted and adopted in the
House Committee on the Territories' report to the full U.S. House of
Representatives, H. Rep. No. 66-839, at 4.
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In 1920, Prince Jonah Kuhio Kalaniana'ole (Prince Kuhio),
the Territory's sole delegate to Congress, testified before the
full U.S. House of Representatives: ``The Hawaiian race is
passing. And if conditions continue to exist as they do today,
this splendid race of people, my people, will pass from the
face of the earth.''\24\ Secretary Lane attributed the
declining population to health problems like those faced by the
``Indian in the United States'' and concluded the Nation must
provide similar remedies.\25\
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\24\59 Cong. Rec. 7453 (1920) (statement of Delegate Jonah Kuhio
Kalaniana'ole).
\25\H. Rep. No. 66-839, at 5 (statement of Secretary Lane).
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The effort to ``rehabilitate'' the dying race of Native
Hawaiians by returning them to the land led the Congress to
enact the Hawaiian Homes Commission Act on July 9, 1921. The
Act sets aside approximately 203,500 acres of the Ceded Lands
for homesteading by Native Hawaiians.\26\ Congress compared the
Act to ``previous enactments granting Indians . . . special
privileges in obtaining and using the public lands.''\27\
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\26\Hawaiian Homes Commission Act, 203.
\27\H. Rep. No. 66-839, at 11 (1920).
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In support of the Act, the House Committee on the
Territories recognized that, prior to the Great Mahale,
Hawaiians had a one-third interest in the lands of the Kingdom.
The Committee reported that the Act was necessary to address
the way Hawaiians had been short-changed in prior land
distribution schemes.\28\ Prince Kuhio further testified before
the U.S. House of Representatives that Hawaiians had an
equitable interest in the unregistered lands that reverted to
the Crown before being taken by the Provisional Government and,
subsequently, the Territorial Government:
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\28\Id. at 6-7.
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[T]hese lands, which we are now asking to be set aside for
the rehabilitation of the Hawaiian race, in which a one-third
interest of the common people had been recognized, but ignored
in the division, and which reverted to the Crown, presumably in
trust for people, were taken over by the Republic of Hawaii by
an article of [its] constitution . . .
* * * * * * *
By annexation these lands became a part of the public lands
of the United States, and by the provisions of the organic act
under the custody and control of the Territory of Hawaii.
* * * * * * *
We are not asking that what you are to do be in the nature
of a largesse or as a grant, but as a matter of justice . .
.\29\
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\29\59 Cong. Rec. 7452-3 (1920) (statement of Delegate Jonah Kuhio
Kalaniana'ole).
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The 1921 Act provides that the lessee must be a Native
Hawaiian, who is entitled to a lease for a term of ninety-nine
years, provided that the lessee occupy and use or cultivate the
tract within one year after the lease is entered into. A
restriction on alienation, like those imposed on Indian lands
subject to allotment, was included in the lease. Also like the
general allotment acts affecting Indians,\30\ the leases were
intended to encourage rural homesteading so that Native
Hawaiians would leave the urban areas and return to rural
subsistence or commercial farming and ranching. In 1923, the
Congress amended the Act to permit one-half acre residence lots
and to provide for home construction loans. Thereafter, the
demand for residential lots far exceeded the demand for
agricultural or pastoral lots.\31\
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\30\25 U.S.C. 331-334, 339, 342, 348, 349, 381 (1998).
\31\Office of State Planning, Office of the Governor, State of
Hawaii, Pt. I, Report on Federal Breaches of the Hawaiian Home Lands
Trust, 4-6 (1992).
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During the remainder of the Territorial period and the
first two decades following statehood, administration of the
Hawaiian home lands program was inadequately funded, and the
best lands were leased to non-Hawaiians in order to generate
operating funds. There was little income remaining for the
development of infrastructure or the settlement of Hawaiians on
the home lands. The lack of resources-combined with
questionable transfers and exchanges of Hawaiian home lands,
and a decades-long waiting list of those eligible to reside on
the home lands program an illusory promise for most Native
Hawaiians.\32\ While the Act did not succeed in its purpose,
its enactment has substantial importance because it constitutes
an express affirmation of the United States' trust
responsibility to the Native Hawaiian people.
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\32\Id., at 12-18.
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The Hawaii Admission Act
As a condition of statehood, the Hawaii Admission Act\33\
required the State of Hawaii to adopt the Hawaiian Homes
Commission Act and imposed a public trust on the lands ceded by
the United States to the new State. The 1959 Compact between
the United States and the People of Hawaii by which Hawaii was
admitted into the Union expressly provides that:
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\33\Pub. L. No. 86-3, 73 Stat. 4 (March 18, 1959) (the ``Admission
Act'').
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As a compact with the United States relating to the
management and disposition of the Hawaiian home lands, the
Hawaiian Homes Commission Act, 1920, as amended, shall be
adopted as a provision in section 7, subsection (b) of this
Act, subject to amendment or repeal only with the consent of
the United States, and in no other manner: Provided, That (1)
the Hawaiian home-loan fund, the Hawaiian home-operating fund,
and the Hawaiian home-development fund shall not be reduced or
impaired by any such amendment, whether made in the
constitution or in the manner required for State legislation,
and the encumbrances authorized to be placed on Hawaiian home
lands by officers other than those charged with the
administration of said Act, shall not be increased, except with
the consent of the United States; (2) that any amendment to
increase the benefits to lessees of Hawaiian home lands may be
made in the constitution, or in the manner required for State
legislation, but the qualifications of lessees shall not be
changed except with the consent of the United States; and (3)
that all proceeds and income from ``available lands'', as
defined by said Act, shall be used in carrying out the
provisions of said Act.\34\
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\34\Admission Act, Sec. 4, 73 Stat. at 5.
* * * * * * *
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The lands granted to the State of Hawaii by subsection (b)
of this section and public lands retained by the United States
under subsection (c) and (d) and later conveyed to the State
under subsection (e), together with the proceeds from the sale
or other disposition of any such lands and the income
therefrom, shall be held by said State as a public trust for
the support of public schools and other public educational
institutions, for the betterment of the conditions of native
Hawaiians, as defined in the Hawaiian Homes Commission Act,
1920, as amended, for the development of farm and home
ownership on as widespread a basis as possible for the making
of public improvements, and for the provision of lands for
public use. Such lands, proceeds, and income shall be managed
and disposed of for one or more of the foregoing purposes in
such manner as the constitution and laws of said State may
provide, and their use for any other object shall constitute a
breach of trust for which suit may be brought by the United
States.\35\
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\35\Id., Sec. 5(f), 73 Stat. at 6 (emphasis added).
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These explicit delegations of Federal authority to be
assumed by the new State were not discretionary or permissive.
The sections of the Admission Act quoted above contemplate a
continuing Federal role, as do sections 204 and 223 of the
Hawaiian Homes Commission Act, which provide that the consent
of the Secretary of the Interior must be obtained for certain
exchanges of trust lands and which reserved to Congress the
right to amend that Act.\36\ The Federal courts have noted that
the United States retains the authority to bring an enforcement
action against the State of Hawaii for breach of the section
5(f) trust.\37\
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\36\With the adoption of its new Constitution, the State of Hawaii
assumed the Federally-delegated responsibility of administering the
Ceded Lands in accordance with the 5 purposes set forth in the
Admission Act and of managing the 203,500 acres of land that had been
set aside by Congress in 1921 for the benefit of the native people of
Hawaii under the Hawaiian Homes Commission Act. See Haw. Const. Art.
XII, Sec. Sec. 2 and 4, and Art. XVI, 7, respectively.
\37\Han v. United States, 45 F. 3d 333, 337 (9th Cir. 1995).
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Treatment of Native Hawaiians compared to other indigenous groups
The two most significant actions of the United States as
they relate to the native people of Hawaii must be understood
in the context of the Federal policy towards America's other
indigenous people.
In 1921, when the Hawaiian Homes Commission Act was enacted
into law, the prevailing Federal Indian policy was premised
upon the objective of breaking up Indian reservations and
allotting lands to individual Indians. Those reservation lands
remaining after the allotment of lands to individual Indians
were opened up to settlement by non-Indians, and significant
incentives were authorized to make the settlement of former
reservation lands attractive to non-Indian settlers. Indians
were not declared citizens of the United States until 1924. A
twenty-year restraint on the alienation of allotted lands was
typically imposed. This restraint prevented the lands from
being subject to taxation by the states, but the restraint
could be lifted if an individual Indian was deemed to be
``civilized.'' Once the restraint on alienation was lifted and
individual Indian lands became subject to taxation, Indians who
could not pay the land taxes had their land seized.
This allotment era of Federal policy was responsible for
the alienation of nearly half of all Indian lands nationwide-
hundreds of millions of acres of lands were no longer in native
ownership, and hundreds of thousands of Indian people were
rendered not only landless but homeless. The primary objective
of the allotment of lands to individual Indians was to
``civilize'' native people. The fact that the United States
thought to impose a similar scheme on the native people of
Hawaii in an effort to ``rehabilitate a dying race'' is thus
readily understandable in the context of the prevailing Federal
Indian policy in 1921.
In 1959, when the State of Hawaii was admitted into the
Union, the Federal policy toward the native peoples of America
was designed to divest the Federal government of its
responsibilities for the indigenous people and to delegate
those responsibilities to the several states. A prime example
of this Federal policy was the enactment of Public Law 83-280,
an Act which vested criminal jurisdiction and certain aspects
of civil jurisdiction over Indian lands to certain states.
Similarly, in 1959 the United States transferred most of its
responsibilities related to administering the Hawaiian Homes
Commission Act to the new State of Hawaii. In addition the
United States imposed a public trust upon the lands that were
ceded to the State for five purposes, one of which was the
betterment of conditions for Native Hawaiians.
Constitutional source of Congressional authority
The United States Supreme Court has often addressed the
scope of Congress' constitutional authority to address the
conditions of native people and thus has ingrained Congress'
role.\38\ Although the authority has been characterized as
``plenary,''\39\ the Supreme Court has addressed the broad
scope of the Congress' authority.\40\ It has been held to
encompass not only the native people within the original
territory of the thirteen states but also lands that have been
subsequently acquired.\41\ The United States interactions with
indigenous peoples have varied from group to group. The only
general principles that apply to relations with the first
inhabitants of this land is that they were dispossessed of
their lands. They were often relocated to other lands set aside
for their benefit. Their subsistence rights have been
recognized under treaties and laws, but have not always been
protected nor preserved. Although the relationship between the
United States and its native people has not followed a fixed
course, it is a history that reveals the special status of the
indigenous people in America.
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\38\``The power of the general government over these remnants of a
race once powerful, now weak and diminished in numbers, is necessary to
their protection. As well as to the safety of those among whom they
dwell. It must exist in that government, because it never has existed
anywhere else, because the theater of its existence is within the
geographical limits of the United States*** From their very weakness
and helplessness, so largely due to the course of dealing of the
Federal government with them, and the treaties in which it has been
promised, there arises a duty of protection, and with its power. This
has always been recognized by the executive, and by Congress, and by
this court, whenever the question has arisen.'' United States v.
Kagama, 118 U.S. 375 (1886).
\39\Morton v. Mancari, 427 U.S. 535 (1974).
\40\Delaware Tribal Business Council v. Weeks, 430 U.S. 73 (1977);
United States v. Sioux Nation, 448 U.S. 371 (1980). The rulings of the
Supreme make clear that neither the conferring of citizenship upon the
native people, the allotment of their lands, the lifting of
restrictions on alienation of native land, the dissolution of a tribe,
the emancipation of individual native people, the fact that a group of
natives may be only a remnant of a tribe, the lack of continuous
Federal supervision over the Indians, nor the separation of individual
Indians from their tribes would divest the Congress of its
constitutional authority to address the conditions of the native
people.
\41\United States v. Sandoval, 231 U.S. 28 (1913).
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Native Hawaiians and the meaning of ``Indian''
Whether the reference was to ``aborigines'' or to
``Indians,'' the Framers of the Constitution did not import a
meaning to those terms as a limitation upon the authority of
Congress, but as descriptions of the native people who occupied
and possessed the lands that were later to become the United
States--whether those lands lay within the boundaries of the
original thirteen colonies, or any subsequently acquired
territories. This construction is consistent with more than two
hundred Federal statutes which establish that the aboriginal
inhabitants of America are a class of people known as ``Native
Americans'' and that this class includes three groups: American
Indians, Alaska Natives and Native Hawaiians.
The Congress's recognition of its power over Alaska Natives
since the acquisition of the Alaskan territory,\42\ reflects
its intent to exercise its constitutional power and
responsibility regarding all Native American groups within the
United States.
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\42\See Atr. III, Treaty of March 30, 1867, 15 Stat. 539.
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The treatment of Alaskan Eskimos is particularly
instructive because the Eskimo peoples are linguistically,
culturally, and ancestrally distinct from other American
``Indians.'' Many modern scholars do not use the word
``Indian'' to describe Eskimos or the word ``tribe'' to
describe their nomadic family groups and villages. However, it
seems unlikely that the Framers would recognize such a
technical distinction in the common understanding of the time.
Eskimos, like Native Hawaiians were aboriginal peoples;
therefore, they were ``Indians.''\43\ Courts have supported
this construction by recognizing ``that the term `Indians'
includes all native people in the United States.''\44\
Congress's special power over aboriginal peoples is well
established.\45\
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\43\See S. Rep. 107-66, at 35, footnotes 43 and 44 (2001); see also
footnote 48, below.
\44\Jon M. Van Dyke, The Political Status of Native Hawaiian
People, 17 Yale L. & Pol'y Rev. 95 (1998) at 146 (citing Alaska Pac.
Fisheries v. United States, 248 U.S. 78 (1918); Native Village of
Tyonek v. Puckett, 957 F.2d 631 (9th Cir. 1992); Alaska Chapter, Assoc.
Gen. Contractors of America v. Pierce, 694 F.2d 1162 (9th Cir. 1982);
Pence v. Kleppe, 529 F.2d 135 (9th Cir. 1976); Alaska v. Annette Island
Packing Co., 289 F. 671 (9th Cir. 1923); Cape Fox Corp. v. United
States, 4 Cl. Ct. 223 (1983); Aguilar v. United States, 474 F. Supp.
840 (D. Alaska 1979); Eric v. HUD, 464 F. Supp. 44 (D. Alaska 1978);
Naliielua v. State of Hawaii, 795 F. Supp. 1009 (D.Haw. 1990); and
Ahuna v. Department of Hawaiian Home Lands, 640 P.2d 1161, 1168-69
(Haw. 1982).
\45\See 42 U.S.C. 11701(17) (``The authority of the Congress under
the United States Constitution to legislate in matters affecting the
aboriginal or indigenous peoples of the United States includes the
authority to legislate in matters affecting the native peoples of
Alaska and Hawaii'').
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During the Founding Era and Constitutional Convention, the
terms ``Indian'' and ``tribe'' were used to encompass the
diversity of aboriginal peoples of the ``New World'' and the
wide range of their social and political organizations. The
Framers drafted the Constitution not to limit Congress's power
over Indians, but to make clear the supremacy of Congress's
power over Indian affairs. The Congress has exercised the power
to promote the welfare of all Native American peoples, and
foster the evolving means and methods of self-governance as
exercised by Native people.
This history is accurately reflected in nearly two
centuries of U.S. Supreme Court jurisprudence. Beginning with
Chief Justice Marshall, the Supreme Court has recognized the
power of the United States to provide for the welfare, and to
promote the self-governance of Indian peoples.
Modern scholars might be puzzled whether Eskimos were
Indians, or a separate and somewhat mysteriously distinct
people on earth.\46\ Others might question whether the native
people of Hawaii are ``Indians.'' Such distinctions would
likely have been irrelevant to the Framers. The ``Indians''
were many peoples, with distinct languages, cultures and socio-
political organizations. Whatever their distinct cultures and
governments, they were all ``Indians,'' for they were
aboriginal inhabitants of the ``New World.''\47\
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\46\A.M. Joseph, Jr., The Indian Heritage of America 57 (rev. ed.
1991); see also Oxford Dictionary (1st ed.) (``OED''), ``Indian''
(``The Eskimos * * * are usually excluded from the term * * *'').
\47\As Hawaii Attorney General Mark J. Bennett stated in his
written testimony submitted at the Committee's hearing on S.310 on May
3, 2007 (citing Kuykendall's The Hawaiian Kingdom), Captain Cook and
his crew, when arriving at the Hawaiian Islands in 1778, referred to
the native people greeting his ships as ``Indians.'' See, Testimony of
Hawaii Attorney General Mark J. Bennett Before the U.S. Senate
Committee on Indian Affairs, May 3, 2007, at footnote 11.
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The important distinction between European settlers and
Native American peoples, one which both groups acknowledged and
understood, was political. The nations-to-nation relationship
survived the settlement of the West, the Civil War Amendments
to the Constitution, and two hundred years of Congressional
action and judicial construction.
Indian tribes and blood quantum
Although the aboriginal ``tribes'' or ``nations'' or
``peoples'' were defined in part by common ancestry, their
constitutional significance lay in their separate existence as
``independent political communities.''\48\ The race of Indian
peoples was constitutionally irrelevant. Native peoples were
``nations,''\49\ and the relationship between the United States
and the natives reflected a political settlement between
conquered and conquering nations.
---------------------------------------------------------------------------
\48\Worcester v. Georgia, 31 U.S. 515 (1832) at 559.
\49\Id at 559-60.
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The Supreme Court has repeatedly made clear that Indian
tribes are the political and familial heirs to ``once sovereign
political communities,'' not ``racial groups.''\50\ The Court
has long recognized that a tribe's ``right to determine its own
membership'' is ``central to its existence as an independent
political community.''\51\
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\50\United States v. Antelope, 430 U.S. 641, 646 (1972); see Fisher
v. District Court, 424 U.S. 382, 389 (1976); Morton v. Mancari, 417
U.S. 535, 553-4 (1974); see also Oklahoma Tax Comm'n v. Sac & Fox
Nation, 508 U.S. 114, 123 (1993); United States v. Mazurie, 419 U.S.
544, 557 (1975).
\51\Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n. 32 (1978);
Cherokee Intermarriage Cases, 203 U.S. 76, 95 (1906); Boff v. Burney,
168 U.S. 218, 222-3 (1897).
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Like the 561 Indian tribes currently recognized by the
United States, Native Hawaiians are a group of people defined
by their common descent from an ancestral class. Congress may
recognize new aggregations of Native Americans, so long as such
legislation is rationally related to the fulfillment of
Congress's trust obligation to Indian people.\52\
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\52\United States v. John, 437 U.S. 634, 652-3 (1978); Moe v.
Confederated Salish & Kootenai Tribes, 425 U.S. 463, 480 (1976).
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The significance of ``federal recognition''
It is important to recognize the legal distinctions that
have been drawn in contemporary times between Indian tribes
that are ``acknowledged'' by the Department of the Interior\53\
or ``recognized'' by Congress and those who are not
``acknowledged'' or ``recognized.'' ``Recognized'' tribes have
a direct government-to-government relationship with the United
States and are thereby eligible for various federal benefits,
whereas Native American groups that are not recognized do not
have such a government-to-government relationship. This is a
relatively recent phenomenon. ``[A] close scrutiny of the
various executive orders, Congressional legislation,
departmental policies, Solicitor's opinions, and judicial
decisions since 1783 * * * discloses an astonishing oblivion of
the need for an express declaration or statement regarding
which Indian tribes were to be recognized, until the enactment
of the Wheeler-Howard (Indian Reorganization) Act of
1934,''\54\ thirteen years after the enactment of the Hawaiian
Homes Commission Act. In fact, there was no systematic
procedure by which a Native American group could petition the
United States for recognition until 1978, when regulations were
promulgated to implement the Federal Acknowledgment
process.\55\
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\53\See 25 C.F.R. Part 83.
\54\William W. Quinn, Jr., Federal Acknowledgment of American
Indian Tribes: The Historical Development of a Legal Concept, 34 Am. J.
Leg. Hist. 331, 332 (1990) (citing 48 Stat. 984 (1934) (codified as
amended at 25 U.S.C. 461 et seq.)); see generally, William W. Quinn,
Jr., Federal Acknowledgment of American Indian Tribes: Authority,
Judicial Interposition, and 25 C.F.R. 83, 17 Am. Indian L. Rev. 37
(1992); L.R. Weatherhead, What is an ``Indian Tribe''? The Question of
Tribal Existence, 8 Am. Indian L. Rev. 1 (1980).
\55\25 C.F.R., Part 83. Quinn 1992, at 40-41.
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Although the authority of Congress to formally
``recognize'' tribes through legislation is unquestioned, the
Department of the Interior's regulations for the administrative
process for the acknowledgement of tribes pursuant to 25 C.F.R.
Part 83 exclude Native Hawaiians from that process, and thus
legislation is the only mechanism available to Native Hawaiians
at this time.\56\
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\56\See 25 C.F.R. 83.1, 83.3 (administrative process available only
to groups within the ``continental United States,'' defined as the
``contiguous 48 states and Alaska''). Native Hawaiians have twice
sought unsuccessfully to challenge their exclusion from this process.
Price v. State of Hawaii, 764 F.2d 623 (9th Cir. 1985); Kahawaiolaa v.
Norton, 222 F.Supp. 2d 1213 (D. Haw. 2002).
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NEED FOR LEGISLATION
The primary injury that S. 310 is intended to address is
the loss of a sovereign governing entity resulting from the
1893 overthrow of the government of the Kingdom of Hawaii, an
event made possible by the actions of United States officials
and citizens. 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. However, it has not yet acted to provide a
process for the reorganization of a Native Hawaiian governing
entity. S. 310 provides authority for that process.
In 1978, in furtherance of the provisions of the Admission
Act, the citizens of the State of Hawaii amended the State
constitution to provide for the establishment of a quasi-
independent State agency, the Office of Hawaiian Affairs (OHA).
The State constitution, as amended, provides that the OHA is to
be governed by nine trustees whoare Native Hawaiian and who are
to be elected by Native Hawaiians. In accordance with laws enacted by
the State following the 1978 constitutional amendment, OHA administers
programs and services using revenues derived from the Ceded Lands
consistent with the conditions of Sec. 5 of the Admission Act and
Public Law 88-233.
OHA's use of these revenues to provide programs and
services for Native Hawaiians reflects the provision in section
5(f) of the Admission Act requiring that the ceded lands and
the revenues derived therefrom be held by the State of Hawai'i
as a public trust for five stated purposes, one of which is the
betterment of the conditions of native Hawaiians. The Admission
Act also provides that the new State assumes a trust
responsibility for the approximately 203,500 acres of land set
aside for Native Hawaiians pursuant to the Hawaiian Homes
Commission Act.
On February 23, 2000, the United States Supreme Court
issued a ruling in the case of Rice v. Cayetano, holding
unconstitutional the eligibility requirements for voting in
elections of OHA trustees. The Court held that because OHA is
an agency of the State of Hawaii, funded in part by
appropriations made by the State legislature, the election for
the trustees of the OHA must be open to all citizens of the
State of Hawaii who are otherwise eligible to vote in statewide
elections.
The State of Hawaii had argued in Cayetano that the state
law excluding non-Hawaiians from voting in OHA elections should
be analyzed in accordance with the Court's rule enunciated in
Morton v. Mancari, wherein the Court upheld against an equal
protection challenge the policy for Indian preference in hiring
within the Bureau of Indian Affairs. The Cayetano Court
rejected the State's Mancari argument, reasoning as follows:
If a non-Indian lacks a right to vote in tribal elections,
it is for the reason that such elections are the internal
affair of a quasi sovereign. The OHA elections, by contrast,
are the affair of the State of Hawaii, established by the State
Constitution, responsible for the administration of state laws
and obligations.''
Following the Supreme Court's decision in Cayetano, new
civil actions were filed challenging the constitutionality of
other aspects of OHA as well as Hawaii's provision of programs
and services to Native Hawaiians. In Arakaki v. State of
Hawaii, the Court of Appeals for the Ninth Circuit ruled that
the State law requiring candidates for the OHA Board of
Trustees to be Native Hawaiian was unconstitutional on grounds
similar to those in Cayetano. Accordingly, all citizens of the
State of Hawaii may now vote for the candidates for the nine
trustee positions and may themselves be candidates for these
offices.
Other civil actions filed since the Cayetano decision have
gone beyond the voting rights issues raised in that case and in
Arakaki v. Hawaii. These other cases target the provision of
programs and services to Native Hawaiians by OHA, the Hawaiian
Homes Commission and the Department of Hawaiian Home Lands on
the grounds that providing benefits exclusively to Native
Hawaiians is racially discriminatory under the Equal Protection
clauses of the Fifth and Fourteenth Amendments.
S. 310 establishes a process that would lead eventually to
the formation of a native governing entity that would have a
government-to-government relationship with the United States.
Eventually, the programs and services or a portion of them now
provided by OHA in furtherance of the provisions of the
Admission Act may likely be provided instead by the Native
Hawaiian governing body to its members. That is, to persons who
have a political affiliation with a federally recognized Native
Hawaiian governing entity with which the United States would
have a formal, government-to-government relationship, so that
equal protection challenges to those programs and services
would be subject to the analysis of Morton v. Mancari.
Accordingly, apart from providing Native Hawaiians with a
vehicle for reorganizing a governing entity through which they
might, as have other native peoples in the United States,
pursue the goals of self-determination and greater control over
the future of their own resources and culture, another purpose
of S. 310 is to assure that the longstanding Congressional
policy of protecting and advancing the interests of Native
Hawaiians--dating back at least to the 1921 Hawaiian Homes
Commission Act--and the bargained-for conditions that were made
part of the 1959 compact that led to the admission of the State
of Hawaii into the Union, are not ultimately frustrated as a
result of these recent legal challenges.
section-by-section analysis
Section 1. Short title
Section 1 sets forth the short title for the bill as the
``Native Hawaiian Government Reorganization Act of 2007.''
Section 2. Findings
Section 2 sets forth findings, including findings regarding
the history of Native Hawaiians; their interactions with the
United States; Congress's authority over Native Hawaiians;
Congress's past declaration of the political and legal
relationship with Native Hawaiians; and Native Hawaiians'
expression of their rights to self-determination, self-
governance, and economic self-sufficiency.
Section 3. Definitions
Section 3 sets forth definitions of terms used in this Act,
including definitions for the term ``Aboriginal, Indigenous,
Native People'' and ``Native Hawaiian.'' The term ``Aboriginal,
Indigenous, Native People'' is defined as the ``people whom
Congress has recognized as the original inhabitants of the
lands that later became part of the United States and who
exercised sovereignty in the areas that later became part of
the United States.'' The term ``Native Hawaiian'' is generally
defined as ``an individual who is 1 of the indigenous, native
people of Hawaii and who is a direct lineal descendant of the
aboriginal, indigenous, native people who resided in the
islands that now comprise the State of Hawaii on or before
January 1, 1893; and occupied and exercised sovereignty in the
Hawaiian archipelago, including the area that now constitutes
the State of Hawaii ; or an individual who is 1 of the
indigenous, native people of Hawaii and who was eligible in
1921 for the programs authorized by the Hawaiian Homes
Commission Act (42 Stat. 108, chapter 42) or a direct lineal
descendant of that individual.''
Section 4. United States policy and purpose
Section 4 reaffirms policies of the United States,
including that Native Hawaiians are indigenous, native people;
the United States has a political and legal relationship with
Native Hawaiians; that Congress has the authority under Article
I, section 8, clause 3 of the United States Constitution to
enact legislation to address the conditions of Native Hawaiians
and has done so in more than 150 Federal laws; that Native
Hawaiians have an inherent right to autonomy in their internal
affairs, an inherent right of self-determination and self-
governance, the right to reorganize a Native Hawaiian governing
entity, and the right to become economically self-sufficient;
and that the United States shall continue to engage in the
process of reconciliation and political relations with Native
Hawaiians.
This section also sets forth the purpose of the Act, which
is to provide a process for the reorganization of the single
Native Hawaiian governing entity and the reaffirmation of the
special political and legal relationship between the United
States and that Native Hawaiian governing entity for purposes
of continuing a government-to-government relationship.
Section 5. United States Office for Native Hawaiian Relations
Section 5 establishes the United States Office for Native
Hawaiian Relations (Office) in the Office of the Secretary of
the Department of Interior and sets forth the duties of the
Office. The duties include continuing the process of
reconciliation with Native Hawaiians; effectuating and
coordinating the political and legal relationship between the
Native Hawaiian governing entity and the United States;
consulting with the Native Hawaiian governing entity before
taking any actions that may have the potential to significantly
affect Native Hawaiian resources, rights, or lands; consulting
with the Interagency Coordinating Group, other Federal
agencies, and the State of Hawaii on policies, practices, and
proposed actions affecting Native Hawaiian resources, rights,
or lands; and preparing and submitting an annual report
containing certain information to specified Committees of
Congress and providing recommendations for any necessary
changes to Federal law or regulations.
This section does not apply to the Department of Defense
but the Secretary of Defense may designate one or more
officials as liaison to the Office.
Section 6. Native Hawaiian Interagency Coordinating Group
Section 6 establishes the Native Hawaiian Interagency
Coordinating Group, which is to be composed of officials from
each Federal agency that administers Native Hawaiian programs,
establishes or implements policies that affect Native
Hawaiians, or whose actions may significantly or uniquely
impact Native Hawaiian resources, rights, or lands, and the
Office for Native Hawaiian Relations. The specific duties of
the Interagency Coordinating Group are set forth but,
generally, the Group will coordinate Federal programs and
policies affecting Native Hawaiians and consult with the Native
Hawaiian governing entity.
This section does not apply to the Department of Defense
but the Secretary of Defense may designate one or more
officials as liaison to the Interagency Coordinating Group.
Section 7. Process for the reorganization of the Native Hawaiian
Governing Entity and the reaffirmation of the special political
and legal relationship between the United States and the Native
Hawaiian Governing Entity
Section 7 addresses the process for the reorganization of
the Native Hawaiian governing entity and provides for the
reaffirmation of the political and legal relationship between
the United States and the Native Hawaiian governing entity.
This section recognizes the right of Native Hawaiians to
reorganize a single Native Hawaiian governing entity to provide
for their common welfare and to adopt appropriate organic
governing documents. A Commission composed of 9 members is
established to prepare and maintain a roll of the adult members
of the Native Hawaiian community who elect to participate in
the reorganization of a single Native Hawaiian governing entity
and to certify that the adult members of the Native Hawaiian
community, who have submitted sufficient documentation and are
proposed for inclusion on the roll, meet the definition of
``Native Hawaiian.''
Commission members will be appointed by the Secretary of
the Interior not later than 180 days after the date of
enactment of the Act. In making an appointment, the Secretary
must take into consideration any recommendation made by any
Native Hawaiian organization. Commission members must have at
least 10 years of experience in the study and determination of
Native Hawaiian genealogy and an ability to read and translate
into English documents written in the Hawaiian language.
The Commission will receive compensation for its work and
may appoint personnel as necessary to enable the Commission to
perform its duties. An employee of the Federal government may
be detailed to the Commission.
Duties of the Commission include preparing and maintaining
a roll of the adult members of the Native Hawaiian community
and certifying to the Secretary that each of the adult members
proposed for inclusion on the roll meet the definition of
``Native Hawaiian'' set forth in this Act. The certified roll
shall be published in the Federal Register. An appeal mechanism
may be established by the Secretary of the Interior for any
person whose name is excluded from the roll but who claims to
meet the definition of ``Native Hawaiian.'' The Secretary is
responsible for updating the roll.
The adult members listed on the certified roll may develop
criteria for candidates to serve on the Native Hawaiian Interim
Governing Council, determine the structure of the Council, and
elect members of the Native Hawaiian community to serve on the
Council. This section sets forth the powers and activities of
the Council, which include developing organic governing
documents for the Native Hawaiian governing entity and holding
elections to ratify such organic documents.
Following ratification, the organic governing documents
shall be submitted to the Secretary. The Secretary must certify
that the organic documents contain certain information,
including criteria for citizenship in the Native Hawaiian
governing entity; civil rights protection for citizens of the
Native Hawaiian governing entity and all persons affected by
the exercise of governmental powers and authorities by the
Native Hawaiian governing entity; and that the organic
documents are consistent with applicable Federal law and the
special political and legal relationship between the United
States and the indigenous, native people of the United States.
Upon certification of the organic governing documents and
the election of officers of the Native Hawaiian governing
entity, the political and legal relationship between the United
States and the Native Hawaiian governing entity will
automatically be reaffirmed and Federal recognition shall be
extended to the Native Hawaiian governing entity.
Section 8. Reaffirmation of delegation of Federal authority;
negotiations; claims
Section 8 reaffirms the delegation of authority to the
State of Hawaii to address the conditions of Native Hawaiians.
It provides that upon reaffirmation of the political and legal
relationship between the United States and the Native Hawaiian
governing entity, the United States and the State of Hawaii may
negotiate with the Native Hawaiian governing entity on certain
issues. Negotiation topics include the transfer of lands,
natural resources, and other assets, and the protection of
existing rights related to such lands or resources; the
exercise of governmental authority over any transferred lands,
natural resources, and other assets, including land use; the
exercise of civil and criminal jurisdiction; the delegation of
governmental powers and authorities to the Native Hawaiian
governing entity by the United States and the State of Hawaii;
any residual responsibilities of the United States and the
State of Hawaii; and grievances regarding assertions of
historical wrongs committed against Native Hawaiians by the
United States or by the State of Hawaii. Upon agreement of any
matters, the parties may submit proposed amendments to Federal
or State law to the Congress or the State of Hawaii,
respectively. Any governmental power or authority of the Native
Hawaiian governing entity which is currently exercised by the
State or Federal Governments shall only be exercised by the
Native Hawaiian governing entity as agreed to in negotiations
under this section.
Additionally, this section provides that this Act does not
create a cause of action against the United States or any other
entity or person; alter existing law regarding obligations on
the part of the United States or the State of Hawaii with
regard to Native Hawaiians or any Native Hawaiian entity;
create obligations that did not exist in any source of Federal
law prior to the date of enactment of this Act; or establish
authority for the recognition of more than one Native Hawaiian
governing entity. In addition, nothing in this Act creates any
breach-of-trust actions, land claims, resource-protection or
resource-management claims by or on behalf of Native Hawaiians
or the Native Hawaiian governing entity and the United States
retains its sovereign immunity from suit to any claim that
exists prior to enactment of this Act which could be brought by
Native Hawaiians or a Native Hawaiian governing entity. Any
claims that may have already accrued and may be brought against
the United States shall be rendered nonjusticiable.
The State of Hawaii also retains its sovereign immunity
unless waived in accordance with State law. Finally, nothing in
this Act may be construed as overriding section 5 of the
Fourteenth Amendment or State sovereign immunity held under the
Eleventh Amendment.
Section 9. Applicability of certain Federal laws
This section prohibits the Native Hawaiian governing entity
and Native Hawaiians from conducting gaming as a matter of
claimed inherent authority or under any Federal law, including
the Indian Gaming Regulatory Act in the State of Hawaii or
within any other State or Territory of the United States.
The Secretary may not take land into trust for Native
Hawaiians or on behalf of the Native Hawaiian governing entity.
It makes clear that the Indian Trade and Intercourse Act does
not, has never, and will not apply after enactment to lands or
land transfers present, past, or future, in the State of
Hawaii. If a Court construes otherwise, any land transfers
before the date of enactment of this Act shall be deemed to
have been made in accordance with the Indian Trade and
Intercourse Act.
Only one Native Hawaiian governing entity may be recognized
pursuant to this Act. Any other groups shall not be eligible
for the Federal Acknowledgment Process.
Nothing in this Act alters the civil or criminal
jurisdiction of the United States or the State of Hawaii over
lands and persons within the State of Hawaii, unless otherwise
negotiated pursuant to section 8.
Native Hawaiians shall not be eligible for programs and
services available to Indians unless otherwise provided under
applicable Federal law. The Native Hawaiian governing entity
and its citizens shall be eligible for Native Hawaiian programs
and services to the extent and in the manner provided by other
applicable laws.
Section 10. Severability
The section provides that if any section or provision of
this Act is found to be invalid, the remaining sections or
provisions shall continue in full force and effect.
Section 11. Authorization of appropriations
This section authorizes such sums as necessary to carry out
this Act.
LEGISLATIVE HISTORY
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.
COMMITTEE RECOMMENDATION AND TABULATION OF VOTE
On May 10, 2007, in an open business meeting, the Committee
considered S.310 and ordered the bill to be favorably reported,
without amendment, to the Senate by voice vote.
COST AND BUDGETARY CONSIDERATIONS
The cost estimate of the Congressional Budget Office on S.
310 is set forth below:
S. 310--Native Hawaiian Government Reorganization Act of 2007
S. 310 would set forth a process for establishing and
recognizing a Native Hawaiian governing entity that would act
on behalf of its members with the state and the federal
government. CBO estimates that implementing S. 310 would cost
about $1 million per year over the 2008-2010 period and less
than $500,000 in each subsequent year, assuming the
appropriation of the necessary funds. Enacting the bill would
not affect direct spending or revenues.
The bill would establish the United States Office for
Native Hawaiian Relations within the Department of the Interior
(DOI). This office would be responsible for developing and
overseeing the federal relationship with the Native Hawaiian
governing entity. Based on information from DOI, CBO expects
that this office would require up to three full-time staff. S.
310 also would create a nine-member commission responsible for
collecting and certifying a membership roll of adult Native
Hawaiians. Based on the deadlines specified in the bill as well
as information from DOI, CBO expects that this commission would
need three years and three full-time staff to complete its
work.
S. 310 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
Enacting this legislation could lead to the creation of a new
government to represent native Hawaiians. The transfer of any
land or other assets to this new government, including land now
controlled by the state of Hawaii, would be the subject of
future negotiations.
On May 15, 2007, CBO transmitted a cost estimate for H.R.
505, the Native Hawaiian Government Reorganization Act of 2007,
as ordered reported by the House Committee on Natural Resources
on May 2, 2007. The two versions of the bill are similar, and
our cost estimates are the same.
The CBO staff contacts for this estimate are Daniel Hoople
(for federal costs) and Marjorie Miller (for the impact on
state, local, and tribal governments). This estimate was
approved by Peter H. Fontaine, Deputy Assistant Director for
Budget Analysis.
EXECUTIVE COMMUNICATIONS
The Committee held a hearing on S. 310 on May 3, 2007, at
which Gregory G. Katsas, Principal Deputy Associate Attorney
General, presented a statement on behalf of the Administration.
In this statement, Mr. Katsas acknowledged that many of the
Administration's concerns with previous versions of the Native
Hawaiian Government Reorganization Act had been addressed in S.
310, but that the Administration continued to have ``broader
policy and constitutional concerns'' with S. 310. These
concerns are described in Mr. Katsas' statement, which was made
a part of the hearing record for the Committee.
After the hearing, written questions were submitted to Mr.
Katsas by the Committee. The Department of Justice provided
responses to these questions on July 23, 2007. These responses
are included in the Committee files.
REGULATORY AND PAPERWORK IMPACT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 310 will
have a minimal impact on regulatory or paperwork requirements.
CHANGES TO EXISTING LAW
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee finds that the
provisions of S. 310 do not affect any change in existing law.
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