[Senate Report 107-66]
[From the U.S. Government Publishing Office]
Calendar No. 165
107th Congress Report
SENATE
1st Session 107-66
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EXPRESSING THE POLICY OF THE UNITED STATES REGARDING THE UNITED STATES
RELATIONSHIP WITH NATIVE HAWAIIANS AND TO PROVIDE A PROCESS FOR THE
RECOGNITION BY THE UNITED STATES OF THE NATIVE HAWAIIAN GOVERNING
ENTITY, AND FOR OTHER PURPOSES
_______
September 21, 2001.--Ordered to be printed
_______
Mr. Inouye, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 746]
The Committee on Indian Affairs, to which was referred the
bill (S. 746) expressing the policy of the United States
regarding the United States relationship with Native Hawaiians
and to provide a process for the recognition by the United
States of the Native Hawaiian governing entity, and for other
purposes, having considered the same, reports favorably thereon
with an amendment and recommends that the bill, as amended, do
pass.
purpose and background
The purpose of S. 746 is to authorize a process for the
reorganization of a Native Hawaiian government and to provide
for the recognition of the Native Hawaiian government by the
United States for purposes of carrying on a government-to-
government relationship.
On January 17, 1893, the government of the Kingdom of
Hawai`i was overthrown by a group of American citizens and
others, who acted with the support of U.S. Minister John
Stephens and a contingent of U.S. Marines from the U.S.S.
Boston. One hundred years later, a resolution extending an
apology on behalf of the United States to Native Hawaiians for
the illegal overthrow of the Native Hawaiian government and
calling for a reconciliation of the relationship between the
United States and Native Hawaiians was enacted into law (Public
Law 103-150) (``Apology Resolution''). The Apology Resolution
acknowledges that the overthrow of the Kingdom of Hawai`i
occurred with the active participation of agents and citizens
of the United States and further acknowledges that the Native
Hawaiian people never directly relinquished their claims to
their inherent sovereignty as a people over their national
lands to the United States, either through their government or
through a plebiscite or referendum.
In December of 1999, the Departments of Interior and
Justice initiated a process of reconciliation in response to
the Apology Resolution by conducting meetings in Native
Hawaiian communities on each of the principal islands in the
State of Hawai`i and culminating in two days of open dialogue.
In each setting, members of the Native Hawaiian community
identified what they believe are the necessary elements of a
process to provide for the reconciliation of the relationship
between the United States and the Native Hawaiian people. A
report, entitled ``From Mauka to Makai: The River of Justice
Must Flow Freely, (``Reconciliation Report'') was issued by the
two departments on October 23, 2000. The principal
recommendation contained in the Reconciliation Report is set
forth below:
Recommendation 1. It is evident from the
documentation, statements, and views received during
the reconciliation process undertaken by Interior and
Justice pursuant to Public Law 103-150 (1993), that the
Native Hawaiian people continue to maintain a distinct
community and certain governmental structures and they
desire to increase their control over their own affairs
and institutions. As a matter of justice and equity,
this report recommends that the Native Hawaiian people
should have self-determination over their own affairs
within the framework of Federal law, as do Native
American tribes. For generations, the United States has
recognized the rights and promoted the welfare of
Native Hawaiians as an indigenous people within our
Nation through legislation, administrative action, and
policy statements. To safeguard and enhance Native
Hawaiian self-determination over their lands, cultural
resources, and internal affairs, the Departments
believe Congress should enact further legislation to
clarify Native Hawaiians' political status and to
create a framework for recognizing a government-to-
government relationship with a representative Native
Hawaiian governing body.
Id., at 17.
S. 746 provides a process for the reorganization of a
Native Hawaiian government, and upon certification by the
Secretary of the Interior that the organic governing documents
of the Native Hawaiian government are consistent with Federal
law and the trust relationship between the United States and
the indigenous, native people of the United States, S. 746
provides for the recognition of the Native Hawaiian government
by the United States for purposes of carrying on a government-
to-government relationship with the Native Hawaiian government.
need for legislation
Since the loss of their government in 1893, Native
Hawaiians have sought to maintain political authority within
their community. In 1978, the citizens of the State of Hawai`i
recognized the long-standing efforts of the native people to
give expression to their rights to self-determination and self-
governance by amending the State constitution to provide for
the establishment of a quasi-sovereign State agency, the Office
of Hawaiian Affairs. The State constitution, as amended,
provides that the Office is to be governed by nine trustees who
are Native Hawaiian and who are to be elected by Native
Hawaiians. The Office administers programs and services with
revenues derived from lands which were ceded back to the State
of Hawai`i upon its admission into the Union of States. The
dedication of these revenues reflects the provisions of the
1959 Hawai`i Admissions Act which provides that the ceded lands
and the revenues derived therefrom should be held by the State
of Hawai`i as a public trust for five purposes--one of which is
the betterment of the conditions of Native Hawaiians. The
Admissions Act also provides that the new State assumes a trust
responsibility for approximately 203,500 acres of land that had
previously been set aside under Federal law in 1921 for Native
Hawaiians in the Hawaiian Homes Commission Act.
On February 23, 2000, the United States Supreme Court
issued a ruling in the case of Rice v. Cayetano, 528 U.S. 495
(2000). The Supreme Court held that because the Office of
Hawaiian Affairs is an agency of the State of Hawai`i, funded
in part by appropriations made by the State legislature, the
election for the trustees of the Office of Hawaiian Affairs
must be open to all citizens of the State of Hawai`i who are
otherwise eligible to vote in statewide elections. Upon remand
from the U.S. Supreme Court and the Ninth Circuit Court of
Appeals, and by order of the U.S. District Court for the
District of Hawai`i, the candidates for the Office of Hawaiian
Affairs trustees may be either Native Hawaiian or non-Native
Hawaiian, and all citizens of the State of Hawai`i may vote for
the candidates that register to run for the nine trustee
positions.
The native people of Hawai`i have thus been divested of the
mechanism that was established under the Hawai`i State
Constitution that, since 1978, has enabled them to give
expression to their rights as indigenous, native people of the
United States to self-determination and self-governance. S. 746
is designed to address these developments by providing a means
under Federal law, consistent with the Federal policy of self-
determination and self-governance for America's indigenous,
native people, for Native Hawaiians to have a status similar to
that of the other indigenous, native people of the United
States.
federal delegation of authority to the state of hawaii
For the past two hundred and ten years, the United States
Congress, the Executive Branch and the U.S. Supreme Court have
recognized certain legal rights and protections for America's
indigenous peoples. Since the founding of the United States,
Congress has exercised a constitutional authority over
indigenous affairs and has undertaken an enhanced duty of care
for America's indigenous peoples. This has been done in
recognition of the sovereignty possessed by the native people--
a sovereignty which pre-existed the formation of the United
States. The Congress' 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 to which the United States
subsequently acquired legal title.
The United States has recognized a special political
relationship with the indigenous people of the United States.
As Native Americans--American Indians, Alaska Natives, and
Native Hawaiians--the United States has recognized that they
are entitled to special rights and considerations. The Congress
has enacted laws to give expression to the respective legal
rights and responsibilities of the Federal government and the
native people.
From time to time, with the consent of the affected States,
the Congress has sought to more effectively address the
conditions of the indigenous people by delegating Federal
responsibilities to various States. In 1959, the State of
Hawai`i assumed the Federally-delegated responsibility of
administering 203,500 acres of land that had been set aside
under Federal law for the benefit of the native people of
Hawai`i. See Haw. Const. Art. XVI, Sec. 7; Hawai`i Admission
Act, Pub. L. No. 83-3, Sec. 4,73 Stat. 4, 5 (1959) (``Hawaii
Admission Act''). In addition, the State agreed to the
imposition of a public trust upon all of the lands ceded to the
State upon admission. See Hawai`i Admission Act, Sec. 5(f);
Haw. Const., Art. XII, Sec. 4. One of the five purposes for
which the public trust is to be carried out is for the
``betterment of the conditions of native Hawaiians[.]'' Hawai`i
Admission Act, Sec. 5(f). The Federal authorization for this
public trust clearly anticipated that the State's constitution
and laws would provide for the manner in which the trust would
be carrier out. ID. Sec. Sec. 4 & 5 (f).
In 1978, the citizens of the State of Hawai`i exercised the
Federally-delegated authority by amending the State
constitution in furtherance of the special relationship with
Native Hawaiians. The delegates to the 1978 constitutional
convention recognized that Native Hawaiians had no other
homeland, and thus that the protection of Native Hawaiian
subsistence rights to harvest the ocean's resources, to fish
the fresh streams, to hunt and gather, to exercise their rights
to self-determination and self-governance, and the preservation
of Native Hawaiian culture and the Native Hawaiian language
could only be accomplished in the State of Hawai`i.
Hawai`i's adoption of amendments to the State constitution
to fulfill the special relationship with Native Hawaiians is
consistent with the practice of other States that have
established special relationships with the native inhabitants
of their areas. Fourteen States have extended recognition to
Indian tribes that are not recognized by the Federal
government, and thirty-two States have established commissions
and offices to address matters of policy affecting the
indigenous citizenry.
history
There is a history, a course of dealings, and a body of law
which informs the special status of the indigenous, native
people of the United States. It is a history that begins well
before the first European set foot on American shores--it is a
history of those who occupied and possessed the lands that were
later to become the United States--the aboriginal, indigenous
native people of this land who were America's first
inhabitants.
The indigenous people did not share similar customs or
traditions. Their cultures were diverse. Some of them lived
near the ocean and depended upon its bounty for their
sustenance. Others made their homes amongst the rocky ledges of
mountains and canyons. Some native people fished the rivers,
while others gathered berries and roots from the woodlands,
harvested rice in the lake areas, and hunted wildlife on the
open plains. Their subsistence lifestyles caused some to follow
nomadic ways, while others established communities that are
well over a thousand years old.
Those who later came to America call them ``aborigines'' or
``Indians'' or ``natives'' but the terms were synonymous. Over
time, these terms have been used interchangeably to refer to
those who occupied and possessed the lands of America prior to
European contact.
Although the differences in their languages, their
cultures, their belief systems, their customs and traditions,
and their geographical origins may have kept them apart and
prevented them from developing a shared identity as the native
people of this land--with the arrival of western
``discoveries'' in the United States, their histories are sadly
similar. Over time, they were dispossessed of their homelands,
removed, relocated, and thousands, if not millions, succumbed
to diseases for which they had no immunities and fell victim to
the efforts to exterminate them.
In the early days of America's history, the native peoples'
inherent sovereignty informed the course of the newcomers'
dealings with them. Spanish law of the 1500's and 1600's
presaged how the United States would recognize their aboriginal
title to land, and treaties became the instruments of fostering
peaceful relations. Felix S. Cohen, The Spanish Origin of
Indian Rights in the Law of the United States, 31, Geo. L.J. 1
(1942).
As America's boundaries expanded, new territories came
under the protection of the United States. Eventually, as new
States entered the Union, there were other aboriginal,
indigenous, native people who became recognized as the
``aborigines'' or ``Indians'' or ``natives'' of contemporary
times--these included the Eskimos, and the Aleuts, and other
native people of Alaska, and later, the indigenous, native
people of Hawai`i.
For nearly a century, Federal law has recognized these
three groups--American Indians, Alaska Natives, and Native
Hawaiians--as comprising the class of people known as Native
Americans. Well before there was a history of discrimination in
this country which the Fourteenth and Fifteenth Amendments were
designed to address, the Supreme Court had recognized the
unique status of America's native peoples under the
Constitution and laws of the United States.
Native Hawaiians are the indigenous, aboriginal people of
the island group that is today the State of Hawai`i. Hawai`i
was originally settled by voyagers from central and eastern
Polynesia, traveling immense distances in double-hulled
voyaging canoes and arriving in Hawai`i perhaps as early as 300
A.D. The original Hawaiians were thus part of the Polynesian
family of peoples, which includes the Maori, Samoans, Tongans,
Tahitians, Cook Islanders, Marquesans, and Easter Islanders. 1
Ralph S. Kuykendall, The Hawaiian Kingdom 3 (1938). Hundreds of
years of Hawaiian isolation followed the end of the era of
``long voyages.'' Id. During these centuries, the Polynesians
living in Hawai`i evolved a unique system of self-governance
and a ``highly organized, self-sufficient, subsistent social
system based on communal land tenure with a sophisticated
language, culture, and religion.'' Apology Resolution.
At the pinnacle of the political, economic, and social
structure of the major Hawaiian islands was a mo`i, a king.
Below the king individuals occupied three major classes. The
highest class, the ali`i, were important chiefs. Next in rank
were members of the kahuna class, who advised the ali`i as
seers, historians, teachers, priests, astronomers, medical
practitioners, and skilled workers. Third, the maka`ainana were
the ``people of the land,'' who fished and farmed and made up
the bulk of the population. Lawrence H. Fuchs, Hawai`i Pono: An
Ethnic and Political History 5 (1961); Native Hawaiian Rights
Handbook 5 (Melody K. MacKenzie ed., 1991).
The political, economic, and social structures were
mutually supportive. The kings held all land and property which
they subdivided among the chiefs. Substantial chiefs supervised
large land areas (ahupua`a) which extended from the sea to the
mountains so that they could fish, farm, and have access to the
products of the mountain forest. They, in turn, divided the
ahupua`a into `ili, run by lesser chiefs whose retainers
cultivated the land. The commoners worked the land and fished,
exchanging labor for protection and some produce from their own
small plots. Agriculture was highly diverse, including taro,
bananas, yams, sugar cane, and breadfruit. The taro plant,
whose starchy root is pounded into poi, requires substantial
moisture so Hawaiians developed a superior system of
irrigation. See Jon J. Chinen, The Great Mahele 3-4 (1958);
Fuchs, supra at 5-7; MacKenzie, supra at 3-5.
The Hawaiian economy was also dependent upon many skilled
artisans. For example, special skills were necessary for the
building of outrigger canoes, the making of tapa (a paper-like
material used for clothing and bedding), the drying of fish,
the construction of irrigation systems and fishponds, the
catching of birds (whose feathers were worn in chiefs' cloaks
and helmets), and the sharpening of stones for building and
fighting. MacKenzie, supra at 4.
``The concept of private ownership of land had no place in
early Hawaiian thought.'' Id. at 4. The authority of the mo`i
or king was derived from the gods, and he was a trustee of the
land and other natural resources of the island. Id. Chiefs owed
military service, taxes, and obedience to the king, but neither
chiefs, nor skilled laborers, nor commoners were tied to a
particular piece of land or master. All lands conferred by the
king or chief were given subject to revocation. In turn neither
commoners nor skilled laborers were required to stay with the
land; if maltreated or dissatisfied, an individual could move
to another ahupua`a or `ili. Id.; see also Fuchs, supra at 5.
Hawaiians also had a complex religion focused on several
major gods--most notably Kane, god of life and light, Lono, god
of the harvest and peace, Ku, god of war and government, and
Pele, goddess of fire. The religion generated a detailed system
of taboos (kapu), enforced by priests, which supported the
political, economic and social systems of the islands. See
Ralph S. Kuykendall & A. Grove Day, Hawai`i: A History 11
(1964).
The language and culture of the Hawaiian people were rich
and complex. Hawaiians possessed an ``extensive literature
accumulated in memory, added to from generation to generation,
and handed down by word of mouth. It consisted of mele (songs)
of various kinds, genealogies and honorific stories * * * [much
of which] was used as an accompaniment to the hula.'' 1
Kuykendall, supra at 10-11. Hawaiians also had a ``rich
artistic life in which they created colorful feathered capes,
substantial temples, carved images, formidable voyaging canoes,
tools for fishing and hunting, surfboards, weapons of war, and
dramatic and whimsical dances.'' Jon M. Van Dyke, The Political
Status of the Native Hawaiian People, 17 Yale L. & Pol'y Rev.
95, 95 (1998) (citing, e.g., Joseph Feher, Hawai`i: A Pictorial
History 36-132 (1969)).
The communal nature of the economy and the caste structure
of the society resulted in values strikingly different from
those prevalent in more competitive western economies and
societies. For example, Hawaiian culture stressed cooperation,
acceptance, and generosity, and focused primarily on day-to-day
living. See, e.g., Fuchs, supra at 74-75.
Hawai`i was not utopia. There were wars between the island
chiefs and among other ali`i. Natural disasters, such as tidal
waves and volcanic eruptions, often killed or displaced whole
villages. But Hawai`i's social, economic, and political system
was highly developed and evolving, and its population,
conservatively estimated to be at least 300,000 \1\ was
relatively stable before the arrival of the first westerners.
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\1\ This estimate is conservative; other sources place the number
at one million. David E. Stannard, Before the Horror: the Population of
Hawai`i on the Eve of Western Contact 59 (1989).
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Hawai`i was ``discovered'' by the west in 1778, when the
first haole or white foreigner, Captain James Cook of the
British Royal Navy, landed. Because he arrived during a
festival associated with Lono in a ship whose profile resembled
Lono's symbol, he was greeted as that long-departed god. Other
western ships soon followed on journeys of exploration or
trade. E.S. & Elizabeth G. Handy, Native Planters in Old
Hawai`i 331 (1972).
In the years that followed the arrival of Cook and other
westerners, warring Hawaiian kings, now aided by haole weapons
and advisers, fought for control of Hawai`i. King Kamehameha I
won control of the Big Island of Hawai`i, and then successfully
invaded Maui, Lana`i, Moloka`i, and O`ahu. By 1810, he also
gained the allegiance of the King of Kaua`i. Despite the
political unification of the islands, Kamehameha I's era saw
the first steps toward the devastation of the Hawaiian people.
The immediate, brutal decimation of the population was the
most obvious result of contact with the west. Between Cook's
arrival and 1820, disease, famine, and war killed more than
half of the Native Hawaiian population. By 1866 only 57,000
Native Hawaiians remained from the basically stable pre-1778
population of at least 300,000. The impact was greater than the
numbers can convey: old people were left without the young
adults who supported them; children were left without parents
or grandparents. The result was a rending of the social fabric.
This devastating population loss was accompanied by
cultural, economic, and psychological destruction. Western
sailors, merchants, and traders did not respect Hawaiian kapu
(taboos) or religion and were beyond the reach of the priests.
The chiefs began to imitate the foreigners whose ships and arms
were so superior to their own. The kapu were abolished soon
after Kamehameha I died. See Fuchs, supra at 8-9. Christianity,
principally represented by American missionaries, quickly
flowed into the breach. Christianity condemned not only the
native religion, but the world view, language, and culture that
were intertwined with it. The loss of the old gods, along with
the law and culture predicated on their existence, resulted in
substantial social conflict and imbalance. Id. at 9; Kuykendall
& Day, supra, at 40-41.
Western merchants also forced rapid change in the islands'
economy. Initially, Hawaiian chiefs sought to trade for western
goods and weapons, taxing and working commoners nearly to death
to obtain the supplies and valuable sandalwood needed for such
trades and nonetheless becoming seriously indebted. As
Hawai`i's stock of sandalwood declined, so, too, did that
trade, but it was replaced by whaling and other mercantile
activities. See Fuchs, supra, at 10-11; Kuykendall & Day,
supra, at 41-43; MacKenzie, supra, at 5. More than four-fifths
of Hawai`i's foreign commerce was American; the whaling
services industry and mercantile business in Honolulu were
almost entirely in American hands. See Fuchs, supra, at 18-19;
Mackenzie, supra, at 6, 9-10. What remained to the Hawaiian
people was their communal ownership and cultivation of land;
but, as described infra, that, too was soon replaced by a
western system of individual property ownership.
As the middle of the 19th century approached, the islands'
small non-native population wielded an influence far in excess
of its size. See Felix S. Cohen, Handbook of Federal Indian Law
799 (2d ed. 1982) (``[a] small number of Westerners residing in
Hawai`i, bolstered by Western warships which intervened at
critical times, exerted enormous political influence[.]'').
These influential westerners sought to limit the absolute power
of the Hawaiian king over their legal rights and to implement
property law so that they could accumulate and control land.
By dint of foreign pressure, these goals were achieved. See
e.g., Mackenzie, supra, at 6; 1 Kuykendall, supra, at 206-26.
In 1840, King Kamehameha III promulgated a new constitution,
establishing a hereditary House of Nobles and an elected House
of Commons. And in 1842, the King authorized the Mahele--the
beginning of the division of Hawai`i's communal land which led
to the transfer of substantial amounts of land to western
hands.
In the 1848 Mahele, the King conveyed about 1.5 million of
the approximately 4 million acres in the islands to the main
chiefs; he reserved about 1 million acres for himself and his
successors (``Crown Lands''), and allocated about 1.5 million
acres to the government of Hawai`i (``Government Lands''). All
land remained subject to the rights of native tenants. In 1850,
after the division was accomplished, an act was passed
permitting non-natives to purchase land in fee simple. The
expectation was that commoners would receive a substantial
portion of the lands that were distributed to the chiefs
because they were entitled to file claims to the lands that
their ancestors had cultivated. In the end, however, only
28,600 acres (less than 1% of the land) were awarded to about
8,000 individual farmers.\2\
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\2\ Many maka `ainana (commoners) did not secure their land because
they did not know of or understand the law, could not afford the survey
costs, feared that a claim would be perceived as a betrayal of the
chief, were unable to farm without the traditional common cultivation
and irrigation of large areas, were killed in epidemics, or migrated to
cities. Id. at 8.
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Soon after the Mahele, there was a dramatic concentration
of land ownership in plantations, estates, and ranches owned by
non-natives. Ultimately, the 2,000 westerners who lived on the
islands obtained much of the profitable acreage from the
commoners and chiefs.
These economic changes were devastating for the Native
Hawaiian people. The communal land system of subsistence
farming was replaced by an economic dominated by western-owned
plantation agriculture, and water formerly used for taro
cultivation was increasingly diverted for irrigation of sugar
plantations. Native Hawaiian were not considered sufficiently
cheap, servile labor for the backbreaking plantation work, and,
indeed, did not seek it. Unable successfully to adjust either
to the new economic life of the plantation or to the
competitive economy of the city, many Native Hawaiians became
part of ``the floating population crowding into the congested
tenement districts of the larger towns and cities of the
Territory' under conditions which many believed would
`inevitably result in the extermination of the race.' ''
(quoting S. Con. Res. 2, 10th Leg. of the Territory of Hawai`i,
1991 Senate Journal 25-26). Native Hawaiians developed a
debilitating sense of inferiority, and descended to the bottom
tier of the economy and the society of Hawai`i.
The mutual interests of Americans living in Hawai`i and the
United States became increasingly clear as the 19th century
progressed. American merchants and planters in Hawai`i wanted
access to mainland markets and protection from European and
Asian domination. The United States developed a military and
economic interest in placing Hawai`i within its sphere of
influence. In 1826, the United States and Hawai`i entered into
the first of the four treaties the two nations signed during
the 19th century. Americans remained concerned, however, about
the growing influence of the English (who briefly purported to
annex Hawai`i in 1842) and the French (who forced an
unfavorable treaty on Hawai`i in 1839 and landed troops in
1849). American advisors urged the King to pursue international
recognition of Hawaiian independence, backed up by an American
guarantee.
In pronouncements made during the 1840s, the administration
of President John Tyler announced the Tyler Doctrine, an
extension of the Monroe Doctrine. It asserted that the United
States had a paramount interest in Hawai`i and would not permit
any other nation to have undue control or exclusive commercial
rights there. Secretary of State Daniel Webster explained:
The United states * * * are more interested in the
fate of the islands, and of their government, than any
other nation can be; and this consideration induces the
President to be quite willing to declare, as the sense
of the Government of the United States, that the
Government of the * * * Islands ought to be respected;
that no power ought either to take possession of the
islands as conquest, or for the purpose of
colonization, and that no power ought to seek for any
undue control over the existing government, or any
exclusive privileges or preferences in matters of
commerce.
S. Exec. Doc. No. 52-77, 40-41 (1893) (describing 1842
statement).
America's already ascendant political influence in Hawai`i
was heightened by the prolonged sugar boom which followed the
Mahele. Sugar planters were eager to eliminate the United
States' tariff on their exports to California and Oregon. The
mainland sugar growers strongly resisted the lifting of the
tariff, but the United States' fear of ``incipient foreign
domination of the Islands'' near its coast was stronger than
the mainland growers' lobby. The 1875 Convention on Commercial
Reciprocity, Jan. 30, 1875, U.S.-Haw., 19 Stat. 625 (1875)
(``Reciprocity Treaty''), eliminated the American tariff on
sugar from Hawai`i and virtually all tariffs that Hawai`i had
placed on American products. Critically, it also prohibited
Hawai`i from giving political, economic, or territorial
preferences to any other foreign power. Finally, when the
Reciprocity Treaty was extended in 1887, the United States also
obtained the right to establish a military base at Pearl
Harbor.
Americans were determined to ensure that the Hawaiian
government did nothing to damage Hawai`i's growing political
and economic relationship with America. But the Hawaiian King
and people were bitter about the loss of their lands to
foreigners and were hostile both to the tightening bond with
the United States and the increasing importation of Asian labor
to work the plantations.
Matters came to a head in 1887, when King Kalakaua
appointed a prime minister who had the strong support of the
Hawaiian people and who opposed granting a base at Peal Harbor
as a condition for extension of the Reciprocity Treaty, and
took other measures that were considered anti-western. The
business community, backed by the non-native military group,
the Honolulu Rifles, forced the prime minister's resignation
and the enactment of a new constitution. The new constitution--
often referred to as the Bayonet Constitution--reduced the king
to a figure of minor importance. It extended the right to vote
to western males whether or not they were citizens of the
Hawaiian Kingdom, and disenfranchised almost all native voters
by giving only residents with a specified income level or
amount of property the right to vote for members of the House
of Nobles. The representatives of propertied westerners took
control of the legislature. A suspected native revolt in favor
of the King's younger sister, Princess Lili`uokalani, and a new
constitution were quelled when the American minister summoned
Marines from an American warship of Honolulu. Westerners
remained firmly in control of the government until the death of
the King in 1891, when Queen Lili`uokalani came to power.
On January 14, 1893, the Queen was prepared to promulgate a
new constitution, restoring the sovereign's control over the
House of Nobels and limiting the franchise to Hawaiian
subjects. See MacKenzie, supra at 11; 3 Kuykendall, Supra at
585-86. She was, however, forced to withdraw her proposed
constitution. See Fuchs, supra at 30.
Despite the Queen's apparent acquiescence, the majority of
westerners recognized that the Hawaiian monarchy posed a
continuing threat to the unimpeded pursuit of their interests.
They formed a Committee of Public Safety to overthrow the
Kingdom. Mercantile and sugar interests also favored annexation
by the United States to ensure access on favorable terms to
mainland markets and protection from Oriental conquest.
A Honolulu publisher and member of the Committee, Lorrin
Thurston, informed the United States of a plan to dethrone the
Queen. In response, the Secretary of the Navy informed Thurston
that President Harrison had authorized him to say that ``if
conditions in Hawaii compel you to act as you have indicated,
and you come to Washington with an annexation proposition, you
will find an exceedingly sympathetic administration here.'' '
L.A. Thurston, Memoirs of the Hawaiian Revolution 230-32
(1936). The American annexation group closely collaborated with
the United States' Minister in Hawai`i, John Stevens.
On January 16, 1893, at the order of Minister Stevens,
American soldiers marched through Honolulu, to a building known
as Arion Hall, located near both the government building and
the palace. The next day, local revolutionaries seized the
government building and demanded that Queen Lili`uokalani
abdicate. Stevens immediately recognized the rebels'
provisional government and placed it under the United States'
protection.
President Harrison promptly sent an annexation treaty to
the Senate for ratification and denied any United States'
involvement in the revolution. Before the Senate could act,
however, President Cleveland, who had assumed office in March
of 1893, withdrew the treaty. An investigator reported that the
revolution had been accomplished by force with American
assistance and against the wishes of Hawaiians. See Kuykendall
& Day, supra at 179. To Congress, President Cleveland declared:
[I]f a feeble but friendly state is in danger of being
robbed of its independence and its sovereignty by a
misuse of the name and power of the United States, the
United States cannot fail to vindicate its honor and
its sense of justice by an earnest effort to make all
possible reparation.
3 Kuykendall, supra at 364.
He demanded the restoration of the Queen. But the Senate
Foreign Relations Committee issued a report ratifying Stevens'
actions and recognizing the provisional government, explaining
that relations between the United States and Hawai`i are unique
because ``Hawai`i has been all the time under a virtual
suzerainty of the United States.'' S. Rep. No. 53-277, at 21
(1894) (emphasis supplied).
As a result of this impasse, the United States government
neither restored the Queen nor annexed Hawai`i. The provisional
government thus called a constitutional convention whose
composition and members it controlled. See Kuykendall & Day,
supra at 183. The convention promulgated a constitution that
imposed property and income qualification as prerequisites for
the franchise and for the holding of elected office. Id. at
184; MacKenzie, supra at 13. `` `Native Hawaiians were,
perhaps, not extremely sophisticated in governmental matters,
but it took no great amount of political insight to perceive
that this constitutional system was a beautifully devised
oligarchy devoted to the purpose of keeping the American
minority in control of the Republic.' '' W.A. Russ, The
Hawaiian Republic (1894-1898) 33-34 (1961). The Republic also
claimed title to the Government Lands and Crown Lands without
paying compensation to the monarch. See MacKenzie, supra at 13.
In 1894 Sanford Dole was elected President of the Republic of
Hawai`i and the United States gave his government prompt
recognition.\3\
---------------------------------------------------------------------------
\3\ A short-lived counter-revolution commenced on January 7, 1895.
Republic police discovered it, arrested many royalist leaders, and
imprisoned the Queen. Eventually, she was forced to swear allegiance to
the new Republic in exchange for clemency for the revolutionaries.
MacKenzie, supra at 13; Fuchs, supra at 34-35.
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The election of President McKinley in 1896 gave the
annexation movement new vigor. Another annexation treaty was
sent to the Senate. Simultaneously, the Native Hawaiian people
adopted resolutions sent to Congress stating that they opposed
annexation and wanted to be an independent kingdom. Russ, supra
at 198, 209.\4\ The annexation treaty failed in the Senate. But
to avoid the constitutional treaty procedure, pro-annexation
forces in the House of Representatives introduced a Joint
Resolution of Annexation which required only a simple majority
in each House of Congress. The balance was tipped at this
moment by the United States' entry into the Spanish-American
War. American troops were fighting in the Pacific, particularly
in the Philippines, and the United States needed to be sure of
a Pacific base. See Kuykendall & Day, supra at 188; MacKenzie,
supra at 14. In July 1898, the Joint Resolution was enacted--
``the fruit of approximately seventy-five years of expanding
American influence in Hawai`i.'' Fuchs, supra at 36.
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\4\ The resolutions were signed by 21,269 people, representing more
than 50% of the Native Hawaiian population in Hawai`i at that time. See
Van Dyke, supra at 103 & n.48 (citing Dan Nakaso, Anti-Annexation
Petition Rings Clear, Honolulu Advertiser, Aug. 5, 1998, at 1); Tom
Coffman, Nation Within: The Story of America's Annexation of the Nation
of Hawai`i 273-82 (1998).
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On August 12, 1898, the Republic of Hawai`i ceded
sovereignty and conveyed title to its public lands, including
the Government and Crown Lands, to the United States. Joint
Resolution for Annexing the Hawaiian Islands to the United
States, ch. 55, 30 Stat. 750, 751 (1898) (``Annexation
Resolution''). In 1900 Congress passed the Organic Act, Act of
April 30, 1900, ch. 339, 31 Stat. 141 (1900) (``Organic Act''),
establishing Hawai`i's territorial government. And, in 1959
Congress admitted Hawai'i to the Union as the 50th state.
Admission Act of 1959, Pub. L. No. 86-3, 73 Stat. 4 (1959)
(``Admission Act'').
Commencing with the Joint Resolution for Annexation, the
United States has repeatedly recognized that, as a result of
the above-recited history, it has a special relationship with
the Native Hawaiian people and a trust obligation with respect
to the public lands of Hawai`i.\5\
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\5\ The Joint Resolution stated that ``[t]he existing land laws of
the United States relative to public lands shall not apply to such
[public] land in the Hawaiian Islands; but the Congress of the United
States shall enact special laws for their management and disposition''
and that revenues from the lands were to be ``used solely for the
benefit of the inhabitants of the Hawaiian Islands for educational and
other purposes.'' Annexation Resolution at 750. Section 73 of the
Organic Act of 1900 returned control of most of the lands to the
territory, but it also required that revenues be devoted to ``such uses
and purposes for the benefit of the inhabitants of the Territory of
Hawaii as are consistent with the joint resolution of annexation.''
Organic Act at 155 (Sec. 73).
---------------------------------------------------------------------------
The special or trust relationship between the Native
Hawaiian people and the United States was most explicitly
affirmed in the Hawaiian Homes Commission Act of 1920, Pub. L.
No. 76-34, 42 Stat. 108 (1921) (``Hawaiian Homes Commission
Act'').
In 1826 it was estimated that there were 142,650 full-
blooded Native Hawaiians in the Hawaiian islands. By 1919 their
numbers had been reduced to 22,600. Historically, the Native
Hawaiian's subsistence lifestyles required that they live near
the ocean to fish and near fresh water streams to irrigate
their staple food crop (taro) within their respective ahupua's.
Beginning in the early 1800's, more and more land was being
made available to foreigners and was eventually leased to them
to cultivate pineapple and sugar cane. Large numbers of Native
Hawaiians were forced off the lands that they had traditionally
occupied. As a result, they moved into the urban areas, often
lived in severely-overcrowded tenements and rapidly contracted
diseases for which they had no immunities.
By 1920, there were many who were concluding that the
native people of Hawai'i were a ``dying race,'' and that if
they were to be saved from extinction, they must have means of
regaining their connection to the land, the `aina.
In hearings on the matter, Secretary of the Interior
Franklin Lane explained the trust relationship on which the
statute was premised:
One thing that impressed me * * * was the fact that the
natives of the islands who are our wards, I should say,
and for whom in a sense we are trustees, are falling
off rapidly in numbers and many of them are in poverty.
H.R. Rep. No. 66-839, at 4 (1920).
He 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. \6\
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\6\ See H.R. Rep. No. 66-839, at 129-30 (statement of Secretary
Lane) (``[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'').
---------------------------------------------------------------------------
Senator John H. Wise, a member of the Legislative
Commission of the Territory of Hawai'i, testified before the
United States House of Representatives:
The idea in trying to get the lands back to some of
the Hawaiians is to rehabilitate them. I believe that
we should get them on lands and let them own their now
homes * * * The Hawaiian people are a farming people
and fishermen, out of door people, and when they were
frozen out of their lands and driven into the cities
they had to live in the cheapest places, tenements.
That is one of the reasons why the Hawaiian people are
dying. Now, the only way to save them, I contend, is to
take them back to the lands and give them the mode of
living that their ancestors were accustomed to and in
that way rehabilitate them.\7\
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\7\ Id. at 3-4. Wise's testimony was quoted and adopted in the Hose
Committee on the Territories' report to the full U.S. House of
Representatives.
Prince Jonah Kuhio Kalanian'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.'' \8\ Secretary of Interior Lane attributed
the declining population to health problems like those faced by
the ``Indian in the United States'' and concluded the Nation
must provide similar remedies.\9\
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\8\ 59 Cong. Rec. 7453 (1920) (statement of Prince Jonah Kuhio
Kalanianaole).
\9\ H.R. Rep. 839, 66th Cong., 2d Sess. 5 (statement of Secretary
of Interior Lane).
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The effort to ``rehabilitate'' this dying race by returning
Native Hawaiians to the land led the Congress to enact the
Hawaiian Homes Commission Act on July 9, 1921. The Act sets
aside approximately 203,500 acres of public lands (former Crown
and Government lands acquired by the United States upon
Annexation) for homesteading by Native Hawaiians. Hawaiian
Homes Commission Act, Sec. 203. Congress compared the Act to
``previous enactments granting Indians * * * special privileges
in obtaining and using the public lands.'' H.R. Rep. No. 66-
839, at 11 (1920).
In support of the Act, the House Committee on the
Territories recognized that, prior to the Mahele, Hawaiians had
a one-third interest in the land. The Committee reported that
the Act was necessary to address the way Hawaiians had been
short-changed in prior land distribution schemes. Prince Kuhio
further testified before the U.S. House of Representatives that
Hawaiians had an equitable interests in the unregistered lands
that reverted to the Crown before being taken by the
Provisional Government and, subsequently, the Territorial
Government:
[T]hese lands, which we are now asking to be set aside
for the rehabilitation of the Hawaiian race, in which a
one-third interest of the common people had been
recognized, but ignored in the division, and which
reverted to the Crown, presumably in trust for the
people, were taken over by the Republic of Hawai`i * *
*. By annexation these lands became a part of the
public lands of the United States, and by the
provisions of the organic act under the custody and
control of the Territory of Hawai`i. * * * We are not
asking that what you are to do be in the nature of a
largesse or as a grant, but as a matter of justice.
The Act provides that the lessee must be a Native Hawaiian,
who is entitled to a lease for a term of ninety-nine years,
provided that the lessee occupy and use or cultivate the tract
within one year after the lease is entered into. A restriction
on alienation, like those imposed on Indian lands subject to
allotment, was included in the lease. Also like the general
allotment acts affecting Indians, 25 U.S.C. Sec. Sec. 331-334,
339, 342, 348, 349, 354, 381 (1998), the leases were intended
to encourage rural homesteading so that Native Hawaiians would
leave the urban areas and return to rural subsistence or
commercial farming and ranching. In February, 1923, the
Congress amended the Act to permit one-half acre residence lots
and to provide for home construction loans. Thereafter, the
demand for residential lots far exceeded the demand for
agricultural or pastoral lots. Office of State Planning, Office
of the Governor, Pt. I, 1 Report on Federal Breaches of the
Hawaiian Home Lands Trust, 4-6 (1992).
For the next forty years, during the Territorial period
(1921-1959) and the first two decades of statehood (1959-1978),
inadequate funding forced the Department of Hawaiian Home Lands
to lease its best lands to non-Hawaiians in order to generate
operating funds. There was little income remaining for the
development of infrastructure or the settlement of Hawaiians on
the home lands. The lack of resources--combined with
questionable transfers and exchanges of Hawaiian home lands,
and a decades-long waiting waiting list of those eligible to
reside on the home lands--rendered the home lands program a
tragically illusory promise for most Native Hawaiians. Id. at
12. While the Act did not succeed in its purpose, its enactment
has substantial importance, however, because it constitutes an
express affirmation of the United States' trust responsibility
to the Native Hawaiian people.
Hawai`i Admission Act
As a condition of statehood, the Hawai`i Admission Act
required the new State to adopt the Hawaiian Homes Commission
Act and imposed a public trust on the lands ceded to the State.
The 1959 Compact between the United States and the People of
Hawai`i by which Hawai`i was admitted into the Union expressly
provides that:
As a compact with the United States relating to the
management and disposition of the Hawaiian home lands,
the Hawaiian Homes Commission Act, 1920, as amended,
shall be adopted as a provision of the Constitution of
said State, as provided in section 7, subsection (b) of
this Act, subject to amendment or repeal only with the
consent of the United States, and in no other manner:
Provided, That (1) * * * the Hawaiian home-loan fund,
the Hawaiian home-operating fund, and the Hawaiian
home-development fund shall not be reduced or impaired
by any such amendment, whether made in the constitution
or in the manner required for State legislation, and
the encumbrances authorized to be placed on Hawaiian
home lands by officers other than those charged with
the administration of said Act, shall not be increased,
except with the consent of the United States; (2) that
any amendment to increase the benefits to lessees of
Hawaiian home lands may be made in the constitution, or
in the manner required for State legislation, but the
qualifications of lessees shall not be changed except
with the consent of the United States; and (3) that all
proceeds and income from ``available lands'', as
defined by said Act, shall be used only in carrying out
the provisions of said Act.
Hawai`i Admission Act, Sec. 4, 73 Stat. at 5.
The lands granted to the State of Hawai`i by subsection
(b) of this section and public lands retained by the
United States under subsections (c) and (d) and later
conveyed to the State under subsection (e), together
with the proceeds from the sale or other disposition of
any such lands and the income therefrom, shall be held
by said State as a public trust for the support of
public schools and other public educational
institutions, for the betterment of the conditions of
native Hawaiians, as defined in the Hawaiian Homes
Commission Act, 1920, as amended, for the development
of farm and home ownership on as widespread a basis as
possible for the making of public improvements, and for
the provision of lands for public use. Such lands,
proceeds, and income shall be managed and disposed of
for one or more of the foregoing purposes in such
manner as the constitution and laws of said State may
provide, and their use for any other object shall
constitute a breach of trust for which suit may be
brought by the United States.
Id Sec. 5(f), 73 Stat. at 6.
These were explicit delegations of Federal authority to be
assumed by the new State. they were not discretionary. The
language is not permissive. The United States did not absolve
itself from any further responsibility in the administration or
amendment of the Hawaiian Homes Commission Act. Nor did the
United States divest itself of any ongoing role in overseeing
the use of ceded lands or the income or proceeds therefrom.
Sections 4 and 5(f) of the Hawai`i Admission Act, quoted above,
clearly contemplate a continuing Federal role, as do sections
204 and 223 of the Hawaiian Homes Commission Act, which provide
that the consent of the Secretary of the Interior must be
obtained for certain exchanges of trust lands and reserve to
congress the right to amend that Act. The Federal and State
courts have repeatedly noted that the United States retains the
authority to bring an enforcement action against the State of
Hawai`i for breach of the section 5(f) trust. Han v. United
States, 45 F3d 333 (9th Cir. 1995); Pele Defense Fund v. Paty,
837 P2d 1247 (Hawai`i, 1992).
Despite the overthrow and annexation of the Hawaiian
Nation, Native Hawaiian culture has survived, and the Native
Hawaiian people have a unique culture that continues today.
Aloha `Aina (Love of the Land)--Native Hawaiians honored
their bond with the land (aloha `aina) by instituting one of
the most sophisticated environmental regulatory systems on
earth, the kapu system. for Hawaiians, the life of the land
depended on the righteousness of the people.\10\ This concept
motivated three decades of efforts by Hawaiian leaders to
regain Kaho`olawe, an island with deep spiritual significance.
Once a military bombing practice target Kaho'olawe is now
listed in the National Register of Historic Places, and is the
subject of a massive Federal clean-up project.\11\
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\10\ The State's motto reflects this concept: ``Ua mau ke ea o ka
`aina i ka pono.'' (The life of the land is perpetuated in
righteousness.) Haw. Const. Art. XV, Sec. 5 (1978).
\11\ Kaho`olawe Island: Restoring a Cultural Treasure. Final Report
of the Kaho`olawe Island Conveyance Commission to the Congress of the
United States 2 (March 31, 1993) (``This report calls upon the United
States government to return to the people of Hawai`i an important part
of their history and culture, the island of Kaho`olawe. The island is a
special place, a sanctuary, with a unique history and culture contained
in its land, surrounding waters, ancient burial places, fishing
shrines, and religious monuments''). Title X of the Fiscal Year 1994
Department of Defense Appropriations Act, Pub. L. No. 103-139, 107
Stat. 1418 (1994) was enacted on November 11, 1993, Section 10001(a) of
Title X states that the island of Kaho`olawe is among Hawai`i's
historic lands and has a long, documented history of cultural and
natural significance to the people of Hawai`i. It authorized
$400,000,000 to be spent for the clean-up of military ordnance from
portions of the island. Id. See Haw. Rev. Stat. Chap. 6K (1993). The
state Kaho`olawe Island Reserve Commission holds the resources and
waters of the island of Kaho`olawe in trust until such time as the
State of Hawai`i and the federal government recognize a sovereign
Hawaiian entity. Id. at Sec. 6K-9.
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Subsistence--Ancient Native Hawaiians supplemented the
produce of their farms and fishponds by fishing, hunting, and
gathering plants. These subsistence activities became
increasingly more difficult to pursue as changing land
ownership patterns barred access to natural resources.
Nonetheless, in predominantly Hawaiian rural areas such as
Hana, Puna, and the island of Moloka`i, Native Hawaiians
continue to feed their families as their ancestors did before
them.\12\ Hawai`i law has always guaranteed subsistence
gathering rights to the people so they may practice native
customs and traditions.\13\
---------------------------------------------------------------------------
\12\ See Davianna McGregor, et al., Contemporary Subsistence
Fishing Practices Around Kaho'olawe: Study Conducted for the NOAA
National Marine Sanctuaries Program (May 1997). See also Jon K.
Matsuoka, et. al., Governor's Moloka'i Subsistence Task Force Report
(1993); Andrew Lind, An Island Community: Ecological Succession in
Hawai`i 102-03 (1968 ed.). (observing, in 1938, that traditional and
customary practices survived in rural ``havens where the economy of
life to which they are best adapted can survive.''). Hawaiian homestead
tracts provide such rural havens.
\13\ Haw. Const. Art. XII, Sec. 7 (1978). Hawaiian usage supersedes
other sources of common law in Hawai`i. Haw. Rev. Stat. Sec. 1-1
(1993); Branca v. Makuakane, 13 Haw. 499, 505 (1901) (``The common law
was not formally adopted until 1893 and then subject to precedents and
Hawaiian national usage.''). See also Haw. Rev. Stat. Sec. 7-1 (1993);
Kalipi v. Hawaiian Trust Co., 656 P.2d 745 (Haw. 1982).
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Kalo (Taro Cultivation)--In Hawaiian legend, the staple
crop of kalo (taro) was revered as the older brother of the
Hawaiian people.\14\ Taro cultivation was not only a means of
sustenance, but also a sacred duty of care to an older sibling.
As land tenure changed, however, the ancient, stream-irrigated
taro paddies (lo`i) were lost to newer crops, encroaching
development, and the diversion of rivers and streams.\15\ In
recent years, Native Hawaiians have reclaimed and restored
ancient taro fields, and formed a statewide association of
native planters, `Onipa`a Na Hui Kalo.
---------------------------------------------------------------------------
\14\ Lilikala Kame`elehiaw, Native Land and Foreign Desires: Pehea
La E Pono Ali? 23-33 (1992). Hawaiian legend traces the ancestry of
Hawai`i islands and people to the sky god, Wakea, and earth goddess,
Papa. Their first-born child, Haloa naka, was stillborn and his small
body, when buried, became the first taro root. Their second child,
Halao, named for the first, was the first Hawaiian. 6 A. Fornander,
Collection of Hawaiian Antiquities and Folklore 360 (1920): David Malo,
Hawaiian Antiquities 244 (1951).
\15\ See e.g., Reppun v. Board of Water Supply, 656 P.2d 57 (Haw.
1982) (in this case, taro growers prevailed against water diversions
that would have adversely affected their crops), cert. denied, 471 U.S.
1040 (1985).
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`Ohana (Extended Family)--In the earliest era of Hawaiian
settlement, governance was a function of the family.\16\ For
Native Hawaiians, family included blood relatives, beloved
friends (hoaloha) and informally adopted children (hanai).\17\
Family genealogies were sacred, and passed down in the form of
oral chants only to specially chosen children--when those
children were barred from learning their language, many of
these ancient genealogies were lost. Nevertheless, family
traditions of respect for elders, mutual support for kin and
the adoption of related children have continued over the past
two centuries.
---------------------------------------------------------------------------
\16\ See generally E.S. Craighill Handy and Mary Kawena Pukui, The
Polynesian Family System in Ka`u (1952); 1 Mary Kawena Pukui, E.W.
Haertig & Catherine A. Lee, Nana I Ke Kumu 49-50 (6th pag. 1983)
(explaining Hawaiian concepts of adoption and fostering).
\17\ `Ohana is a concept that has long been recognized by Hawai`i
courts. See, e.g., Leong v. Takasaki, 520 P.2d 758, 766 (Haw. 1976);
Estate of Emanuel S. Cunha, 414 P.2d 925-129 (Haw. 1966): Estate of
Farrington, 42 Haw. 640, 650-651 (1958); O'Brien v. Walker, 35 Haw.
104, 117-36 (1939), aff'd., 115 F.2d 956 (9th Cir. 1940), cert. denied,
312 U.S. 707 (1941); Estate of Kamauoha, 26 Haw. 439, 448 (1922);
Estate of Nakuapa, 3 Haw. 342, 342-43 (1872).
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The `ohana beliefs, customs, and practices predated the
ali`i; co-existed under the rule of the ali`i; and have
continued to be practiced, honored and transmitted to the
present. The `ohana continued to honor their `aumakua
(ancestral deities). Traditional kahuna la`au lapa `au (herbal
healers) continue their healing practices using native Hawaiian
plants and spiritual healing arts. Family burial caves and lava
tubes continue to be cared for. The hula and chants continue to
be taught, in distinctly private ways, through `ohana
lines.\18\
---------------------------------------------------------------------------
\18\ McGregor, supra, at 9.
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Today, there is an extensive and growing network of
reclaimed family genealogies, one of which is formally
maintained by the Office of Hawaiian Affairs (Operation
`Ohana). Huge Hawaiian family reunions are routinely held
throughout the islands, in every week of the year. In honor of
a cultural tradition that reveres the taro root as the older
brother of the Hawaiian race, these modern activities are
called ``ho`i kou i ka mole,'' or ``return to the tap-root.''
`Iwi (Bones)--In Hawaiian culture, the remains of the
deceased carried the mana (spiritual power) of the decedent.
These remains were treated with great reverence, and fearful
consequences were sure to befall any who desecrated them. The
protection of the bones of their ancestors remains a solemn
responsibility for modern day Native Hawaiians. The State of
Hawai`i has recognized the importance of protecting Native
Hawaiian burial sites, and has established a Hawaiian Burial
Council to ensure the `iwi of Hawaiian ancestors are treated
with proper respect.\19\
---------------------------------------------------------------------------
\19\ Haw. Rev. Stat. Sec. 6E-43.5 (1993). This provision requires
consultation with appropriate Hawaiian organizations, like Hui Malama I
Na Kupuna O Hawai`i Nei. See http://www.pixi.com/huimalam.
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Wahi Kapu (Sacred Places)--Ancient Hawaiians also
recognized certain places as sacred, and took extraordinary
measures to prevent their desecration. A contemporary example
of this concept is found at Mauna `Ala on the island of O`ahu,
where the remains of Hawai`i's ali`i (monarchs) are interred.
This royal mausoleum is cared for by a kahu (guardian), who is
the lineal descendant of the family charged since antiquity
with protecting the bones of this line of chiefs.
`Olelo Hawai`i (Hawaiian Language)--``I ka `olelo no ke
ola; i ka `olelo no ka make. With language rests life, with
language rests death.'' \20\ The Hawaiian language was banned
from the schools in 1896.\21\
---------------------------------------------------------------------------
\20\ Ka`u: University of Hawai`i Hawaiian Studies Task Force
Report, 23 (Dec. 1986). These anti-Hawaiian language efforts were
falsely cast in terms of assimilation and societal unity. Nevertheless,
the core issues of sovereignty and self-determination remained for,
``to destroy the language of a group is to destroy its culture.'' Adeno
Addis, Individualism, Communitarianism, and the Rights of Ethnic
Minorities, 66 Notre Dame L. Rev. 1219, 1270 (1991).
\21\ 1 Revised Laws of Hawai`i Sec. 2, at 156 (1905). As a direct
result of this law, the number of schools conducted in Hawaiian dropped
from 150 in 1880 to zero in 1902. Albert J. Schutz, The Voices of Eden:
A History of Hawaiian Language Studies 352 (1994). Hawaiian language
newspapers, which were the primary medium for communication in Hawai`i
at that time, declined from a total of twelve (nine secular and three
religious) in 1910 to one religious newspaper in 1948. Id. at 362-63.
---------------------------------------------------------------------------
During the time of the Republic and territorial period, the
speaking of the Native Hawaiian language was strictly forbidden
anywhere within school yards or buildings, and physical
punishment for using it could be harsh. Teachers who were
native speakers of Hawaiian (many were in the first three
decades of the Territory) were threatened with dismissal for
using Hawaiian in school. Some were even a bit leery of using
Hawaiian place names in class. Teachers were sent to Hawaiian-
speaking homes to reprimand parents for speaking Hawaiian to
their children.\22\
---------------------------------------------------------------------------
\22\ Larry K. Kimura and William Wilson, 1 Native Hawaiians Study
Commission Minority Report, 196 (U.S. Dept. of Interior 1983). See also
Davianna McGregor-Alegado, Hawaiians: Organizing in the 1970s. 7
Amerasia Journal 29, 33 (1980) (``Through a systematic process of
assimilation in the schools, especially restricting the use of the
native language, Hawaiians were taught to be ashamed of their cultural
heritage and feel inferior to the haole American elite in Hawai`i.'').
---------------------------------------------------------------------------
The language was kept alive in rural Hawaiian families and
in the mele oli (songs and chants) of native speakers.\23\ In
1978, the Hawai`i state Constitution was finally amended to
make Hawaiian one of the two official languages of the
State.\24\ In the two decades since, Hawaiian language has
become a required offering in the State Department of Education
curriculum, and private non-profit Hawaiian language schools
have been established in all major islands with the assistance
of Federal funds.\25\ In 1997-1998, 1,351 students were
enrolled in fourteen Hawaiian language immersion programs
throughout the State, from pre-school through high school.\26\
Hawaiian remains the first language of the Native Hawaiian
community located on the isolated island of Ni`iahu, which was
spared the effects of the 1896 ban.\27\
---------------------------------------------------------------------------
\23\ [T]he renewal of interest in the hawaiian language and culture
in the 1970s did not relight an extinguished flame, but fanned and fed
the embers[.]'' Schutz, supra, at 361.
\24\ Haw. Const. Art. XV, sec 4 (1978). See also Haw. Const. Art.
X, sec. 4 (1978) (requiring the State to ``promote the study of
Hawaiian culture, history and language * * * [through] a Hawaiian
education program * * * in the public schools.'') Restrictions on the
use of Hawaiian language in public schools were not actually lifted
until 1986. See Haw. Rev. Stat. Sec. 298-2(b) (1993).
\25\ Native Hawaiian Education Act, Pub. L. No. 103-382, Sec. 101,
108 Stat. 3518 (Oct. 20, 1994).
\26\ Office of Hawaiian Affairs, Native Hawaiian Data Book 244-45
(1998 (Table/Figure 4.22). Projected enrollment for the 2005-2006
school year is 3,397. Id. Dramatic increases in the enrollment of
Hawaiians at the University of Hawai`i took place shortly after
adoption of the 1978 Constitutional Amendments and again after
statutory restrictions were lifted in 1986 on use of the Hawaiian
language in schools. Id. at 216-17 (Table/Figure 4.7). According to the
1990 Census, Hawaiian is spoken in 8,872 households. Id. at 240-41
(Table/Figure 4.20).
\27\ Karen Silva, Hawaiian Chant: Dynamic Cultural Link or
Atrophied Relic?, 98 Journal of the Polynesian Society 85, 86-87
(1989), cited in Schutz, supra note 27, at 357.
---------------------------------------------------------------------------
Ho`oponopono (Conflict Resolution) \28\--This ancient
Hawaiian tradition of problem solving resembles the western
practice of mediation, but with the addition of a deeply
spiritual component. It was and is traditionally practiced
within families, and used to resolve disputes, cure illnesses,
and reestablish connections between family members and their
akua (gods). Today, trained practitioners are formally teaching
the ho`oponopono methods, and there has been a resurgence of
its use. The State courts have implemented a formal
ho`oponopono program that is designed to help families to
resolve their problems outside the courtroom.
---------------------------------------------------------------------------
\28\ See generally Victoria Shook, Ho`oponopono, Contemporary Uses
of a Hawaiian Problem-Solving Process (185).
---------------------------------------------------------------------------
Civic Association--Prior to Annexation, Native Hawaiians
were active participants in the political life of the Islands.
Political associations were organized to protests against the
Bayonet Constitution of 1787 and subsequent annexation
efforts.\29\ Hawaiian Civic Clubs were established at the turn
of the century to campaign against the destitute and unsanitary
living conditions of Hawaiians in the city of Honolulu and its
outskirts.\30\ These associations still exist, and count among
their membership many of Hawai`i's most distinguished native
leaders. In addition, Hawaiians living on Hawaiian Home Lands
have, from the program's beginning in 1921, established
homestead associations.
---------------------------------------------------------------------------
\29\ Hui Kalaiaina, a Hawaiian political organization, lobbied for
the replacement of the 1887 Bayonet Constitution, and led mass,
peaceful protests that stalled negotiations for a new Treaty of
Reciprocity. 3 Kuykendall, supra, at 448; Noenoe Silva, Kanaka Maoli
Resistance to Annexation, 1 O`iwi: A Native Hawaiian Journal 45 (1998).
\30\ Davianna Pomaika`i McGregor, `Aina Ho `opulapula: Hawaiian
Homesteading, 24 The Hawaiian Journal of History 1, 4-5 (1990).
---------------------------------------------------------------------------
La`au Lapa`au (Hawaiian Healing)--Quietly practiced over
the past two centuries following European contact, Native
Hawaiian medicine has always been an important alternative to
western medical care. Today it is a credible form of treatment
for many.\31\ Practitioners use Hawaiian medicinal plants
(la`au), massage (lomilomi), and spiritual counseling to heal.
Hawaiian health centers established with Federal financial
support \32\ now incorporate traditional Hawaiian healing
methods into their regimen of care.
---------------------------------------------------------------------------
\31\ Isabella Aiona Abbott, La`au Hawai`i: Traditional Uses of
Hawaiian Plants 135 (1992); Nanette L. Kapulani Mossman Judd, La`au
Lapa`au: herbal healing among contemporary Hawaiian healers. 5 Pacific
Health Dialog Journal of Community Mental Health and Clinical Medicine
for the Pacific: The Health of Native Hawaiians 239-45 (1998).
\32\ These traditional methods of healing are recognized and
financed through appropriations under the Native Hawaiian Healthcare
Act of 1988, Pub. L. No. 100-579, 102 Stat. 2916 (now codified at 42
U.S.C. Sec. Sec. 11701e, et seq.).
---------------------------------------------------------------------------
Halau Hula (Hula Academies)--Once banned by missionaries as
sacrilege, the ancient art of hula \33\ accompanied by chanting
in the native tongue, flourishes today. Halau exist throughout
the islands, and hula and chants are now regularly incorporated
into public ceremonies.
---------------------------------------------------------------------------
\33\ ``[A] few chanters, dancers, and teachers among the po`e hula
[hula people] kept alive the more traditional forms, and with the
flowering of the ``Hawaiian Renaissance'' in the 1970's their knowledge
and dedication became a foundation for revitalizing older forms.''
Dorothy B. Barrere, Mary Kawena Pukui & Marion Kelly, Hula Historical
Perspectives 1-2 (1980). Hula was recently designated the state dance.
Act 83, Relating To Hula (June 22, 1999) (codified at Haw. Rev. Stat.
Chapter Sec. 5-21).
---------------------------------------------------------------------------
Voyaging/Celestial Navigation--Ancient Hawaiians were
skilled navigators, finding their way thousands of miles across
the open Pacific using only the stars and the currents as
guides. In the 1970's, a group of Native Hawaiians formed the
Polynesian Voyaging Society. The Society researched Polynesian
canoe-making and navigating traditions, and commissioned the
construction of an historically authentic double-hulled
voyaging canoe, the Hokule`a (``Star of Gladness''). A Native
Hawaiian crew was trained to sail the canoe, and a Native
Hawaiian navigator was chosen to learn the art of celestial
navigation from one of its few remaining Polynesian
practitioners. The canoe's first voyage to Tahiti in 1976 was
tremendously successful. It confirmed the sophisticated
navigational skills of ancient Polynesians and also instilled a
sense of pride in Hawaiian culture.\34\ Other canoes have been
built, and more voyages made since.\35\ The art of voyaging is
alive and well in modern Hawai`i, a testament to the skill and
courage of the ancient navigators who first settled these
islands.
---------------------------------------------------------------------------
\34\ Ben Finney, Voyage of Rediscovery: A Cultural Odyssey through
Polynesia (1995). In 1995, the Hokule`a and Hawai`iloa sailed to the
Marquesas Islands. PBS recently broadcast an hour-long documentary of
this voyage entitled Wayfinders--A Pacific Odyssey. See http://pbs.org/
wayfinders.
\35\ Hokule`a left Hawai`i on June 15, 1999 for Rapa Nui See http:/
/www.leahi.kcc.hawaii.edu/org/pvs for reports on the voyage's progress
and educational programs and materials.
---------------------------------------------------------------------------
Native Hawaiians today live in a markedly different world
from the one that shaped their ancient practices. Yet they
struggle to perpetuate a culture passed down to them through
two millennia.
federal actions within the context of federal indian policy
The two most significant actions of the United States as
they relate to the native people of Hawai`i must be understood
in the context of the Federal policy towards America's other
indigenous, native people at the time of those actions.
In 1921, when the Hawaiian Homes Commission Act was enacted
into law, the prevailing Federal Indian policy was premised
upon the objective of breaking up Indian reservations and
allotting lands to individual Indians. Those reservation lands
remaining after the allotment of lands to individual Indians
were opened up to settlement by non-Indians, and significant
incentives were authorized to make the settlement of former
reservation lands attractive to non-Indian settlers. Indians
were not to be declared citizens of the United States until
1924, and it was typical that a twenty-year restraint on the
alienation of allotted lands was imposed. This restraint
prevented the lands from being subject to taxation by the
states, but the restraint on alienation could be lifted if an
individual Indian was deemed to have become ``civilized.''
However, once the restraint on alienation was lifted and
individual Indian lands became subject to taxation, Indians who
did not have the wherewithal to pay the taxes on the land,
found their lands seized and put up for sale. This allotment
era of Federal policy was responsible for the alienation of
nearly half of all Indian lands nationwide--hundreds of
millions of acres of lands were no longer in native ownership,
and hundreds of thousands of Indian people were rendered not
only landless but homeless.
The primary objective of the allotment of lands to
individual Indians was to ``civilize'' the native people. The
fact that the United States thought to impose a similar scheme
on the native people of Hawai`i in an effort to ``rehabilitate
a dying race'' is thus readily understandable in the context of
the prevailing Federal Indian policy in 1921.
In 1959, when the State of Hawai`i was admitted into the
Union, the Federal policy toward the native peoples of America
was designed to divest the Federal government of its
responsibilities for the indigenous people and to delegate
those responsibilities to the several states. A prime example
of this Federal policy was the enactment of Public Law 83-280,
an Act which vested criminal jurisdiction and certain aspects
of civil jurisdiction over Indian lands to certain states. In
similar fashion, the United States transferred most of its
responsibilities related to the administration of the Hawaiian
Homes Commission Act to the new State of Hawai`i, and in
addition, imposed a public trust upon the lands that were ceded
back to the State for five purposes, one of which was the
betterment of conditions of Native Hawaiians.
constitutional source of congressional authority
The United States Supreme Court has so often addressed the
scope of Congress' constitutional authority to address the
conditions of the native people that it is now well-
established.\36\ Although the authority has been characterized
as ``plenary,'' Morton v. Mancari, 427 U.S. 535 (1974), the
Supreme Court has addressed the broad scope of the Congress'
authority. Delaware Tribal Business Council v. Weeks, 430 U.S.
73 (1977); United States v. Sioux Nation, 448 U.S. 371
(1980).\37\ 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. United States
v. Sandoval, 231 U.S. 28 (1913).
---------------------------------------------------------------------------
\36\ ``The power of the general government over these remnants of a
race once powerful, now weak and diminished in numbers, is necessary to
their protection, as well as to the safety of those among whom they
dwell. It must exist in that government, because it never has existed
anywhere else, because the theater of its exercise is within the
geographical limits of the United States * * * From their very weakness
and helplessness, so largely due to the course of dealing of the
Federal government with them, and the treaties in which it has been
promised, there arises the duty of protection, and with it the power.
This has always been recognized by the executive, and by congress, and
by this court, whenever the question has arisen.'' United States v.
Kagama, 118 U.S. 375 (1886).
\37\ The rulings of the Supreme Court make clear that neither the
conferring of citizenship upon the native people, the allotment of
their lands, the lifting of restrictions on alienation of native land,
the dissolution of a tribe, the emancipation of individual native
people, the fact that a group of natives may be only a remnant of a
tribe, the lack of continuous Federal supervision over the Indians, nor
the separation of individual Indians from their tribes would divest the
Congress of its constitutional authority to address the conditions of
the native people. Cherokee Nation v. Hitchock, 187 U.S. 294 (1902);
United States v. Celestine, 215 U.S. 278 (1909); Tiger v. Western Inv.
Co., 221 U.S. 286 (1911); United States v. Nice, 241 U.S. 591 (1916);
Chippewa Indians v. United States, 307 U.S. 1 (1939); Delaware Tribal
Business Council v. Weeks, 430 U.S. 73 (1977); United States v. John,
437 U.S. 634 (1979).
---------------------------------------------------------------------------
The ensuing course of dealings with the indigenous people
has varied from group to group, and thus, the only general
principles that apply to relations with the first inhabitants
of this nation is that they were dispossessed of their lands,
often but not always relocated to other lands set aside for
their benefit, and that their subsistence rights to hunt, fish,
and gather have been recognized under treaties and laws, but
not always protected nor preserved.
Some commentators have suggested that no other group of
people in America has been singled out so frequently for
special treatment, unique legislation, and distinct expressions
of Federal policy. Although the relationship between the United
States and its native people is not a history that can be said
to have followed a fixed course, it is undeniably a history
that reveals the special status of the indigenous people of
this land. American laws recognize that the native people do
not trace their lineage to common ancestors and, from time to
time, our laws have in fact discouraged the indigenous people
from organizing themselves as ``tribes.'' But this much is
true--that for the most part, at any particular time in our
history, the laws of the United States have attempted to treat
the native people, regardless of their genealogical origins and
their political organization, in a consistent manner.
It has been suggested that the scope of constitutional
authority vested in the Congress is constrained by the manner
in which the native people organize themselves. Under this
theory, if the native people are not organized as tribes, then
the Congress lacks the authority to enact laws and the
President is without authority to establish policies affecting
the native people of the United States. However, the original
language proposed for inclusion in the Constitution made no
reference to ``tribes'' but instead proposed that the Congress
be vested with the authority ``to regulate affairs with the
Indians as well within as without the limits of the United
States.'' The Records of the Federal Convention of 1787, Volume
II, Journal Entry of August 18, 1787, p. 321. A further
refinement suggested that the language read ``and with Indians,
within the Limits of any State, not `subject to the laws
thereof[.]' '' The Records of the Federal Convention of 1787,
Volume II, Journal Entry of August 22, 1787, p. 367.
The exchanges of correspondence between James Monroe and
James Madison concerning the construction of what was to become
Article I, Section 8, Clause 3 of the Constitution make no
reference to Indian tribes, but they do discuss Indians.\38\
Nor is the term ``Indian tribe'' found in any dictionaries of
the late eighteenth century, although the terms ``aborigines''
and ``tribe'' are defined.\39\
---------------------------------------------------------------------------
\38\ In his letter to James Monroe of November 27, 1784, James
Madison observes, ``The foederal articles give Congs, the exclusive
right of managing all affairs with the Indians not members of any
State, under a proviso, that the Legislative authority, of the State
within its own limits be not violated. By Indian[s] not members of a
State, must be meant those, I conceive who do not live within the body
of the Society, or whose Persons or property form no objects of its
laws. In the case of Indians of this description the only restraint on
Congress is imposed by the Legislative authority of the State.'' The
Founders' Constitution, Volume Two, Preamble through Article 1, Section
8, Clause 4, p. 529, James Madison to James Monroe, 27 Nov. 1784,
Papers 8:156-57; See also, James Monroe to James Madison, 15 Nov. 1784,
Madison Papers 8:140.
\39\ The term ``aborigines'' is defined as ``the earliest
inhabitants of a country, those of whom no original is to be traced'',
and the term ``tribe'' is defined as ``a distinct body of the people as
divided by family or fortune, or any other characteristic.'' A
Dictionary of the English Language (Samuel Johnson ed., 1755). The
annotations accompanying the term ``Indian'' in the 1901 Oxford
dictionary indicates the use of the term as far back as 1553. Oxford
English Dictionary (James A.H. Murray ed., 1901).
---------------------------------------------------------------------------
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 more logical construction is consistent with
more than two hundred Federal statutes which establish that the
aboriginal inhabitants of America are a class of people known
as ``Native Americans'' and that this class includes three
groups--American Indians, Alaska Natives and Native Hawaiians.
The unique native peoples of Alaska have been recognized as
``Indian'' ``tribes'' for four hundred years. The Founders'
understanding of the ``Eskimaux'' as Indian tribes, and
Congress' recognition of its power over Alaska Natives ever
since the passage of the Fourteenth Amendment and the
acquisition of the Alaskan territory, help illuminate Congress'
power over, and responsibility for, all Native American
peoples.
The treatment of Alaskan Eskimos is particularly
instructive because the Eskimo peoples are linguistically,
culturally, and ancestrally distinct from other American
``Indians.'' Many modern scholars do not use the word
``Indian'' to describe Eskimos or the word ``tribe'' to
describe their nomadic family groups and villages. The Framers,
however, recognized no such technical distinctions. In the
common understanding of the time, Eskimos, like Native
Hawaiians, were aboriginal peoples; they were therefore
``Indians.'' Their separate communities of kind and kin were
``tribes.'' Congress' special power over these aboriginal
peoples is beyond serious challenge.
During the Founding Era, and during the Constitutional
Convention, the terms ``Indian'' and ``tribe'' were used to
encompass the tremendous diversity of aboriginal peoples of the
New World and the wide range of their social and political
organizations. The Founding generation knew and dealt with
Indian tribes living in small, familial clans and in large,
confederated empires. Native Alaska villages and Native
Hawaiians residing in their aboriginal lands (i.e., the small
islands that comprise the State of Hawai`i) are ``Indian
Tribes'' as that phrase was used by the Founders. The Framers
drafted the Constitution not to limit Congress' power over
Indians, but to make clear the supremacy of Congress' power
over Indian affairs. The Congress has exercised the power to
promote the welfare of all Native American peoples, and to
foster the ever-evolving means and methods of Native Americans
self-governance.
This history is accurately reflected in 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. This recognition of the
right of the indigenous, native people of the United States to
self-determination and self-governance is part of the structure
of America's complex multi-sovereign system of governance.
In the language and understanding of the Founders,
``tribes'' or ``peoples'' did not lose their identity as such
when conquered or ruled by kings. Like other Native American
people, Native Hawaiians lived for thousands of years as
``tribes,'' then as confederations of tribes, now as conquered
tribes. All aboriginal peoples of the New World were
``Indians.'' That is what it meant to be an ``Indian.'' The
Founders knew that Columbus had not landed in India or the
Indies; Columbus's navigational error had been corrected, but
his malaprop had survived. And so, in the words of one of the
earliest English books about America, the native people were
``Indians,'' for the simple reason that ``so caule wee all
nations of the new founde lands.'' \40\
---------------------------------------------------------------------------
\40\ Gonzalo Fernandez de Oviego y Valdez, De la natural hystoria
de las Indias (1526), trans. by R. Eden (1955), in E. Arber, ed., The
First Three English Books on America (Birmingham, Eng., 1885) (emphasis
added).
---------------------------------------------------------------------------
The earliest explorers of the New World encountered an
extraordinary diversity of aboriginal peoples--from the
elaborate Aztec and Inca civilizations of the South to the
nomadic ``Esquimaux'' of the North. These early experiences and
the contemporary fascination with these diverse cultures
informed the concept of ``Indians'' in the colonial era.
There was no understanding in the founding generation that
Indians constituted a distinct or separate race. Indians were
often assumed by the European settlers to be peoples like
themselves. Before the development of modern dating methods
that established beyond doubt the great antiquity of early man
in America, it was believed that the Indians were offshoots of
known civilizations of the Old World. Some scholars argued that
they came from Egypt, others that they had broken away from the
Chinese, and still others that they were descendants of
Phoenician or Green seamen * * *. Another belief, more legend
than theory, held that various light-skinned tribes possessed
the blood of Welshmen who had come to America in the remote
past. * * * \41\ Others theorized the Indians were the ``lost
tribes'' of Israel.\42\
---------------------------------------------------------------------------
\41\ A.M. Joseph, Jr., The Indian Heritage of America 40 (rev. ed.
1991).
\42\ Id.; Letter, Jefferson to Adams, June 11, 1812 (discussing a
popular book arguing ``all the Indians of America to be descended from
the Jews * * * and that they all spoke Hebrew''), in Jefferson,
Writings (Library of America, 1984), 1261; Bernal Diaz, The Conquest of
New Spain 26 (1568) (J.M. Cohen, tr., 1963) (Objects at Indian site
attributed ``to the Jews who were exiled by Titus and Vespasian and
sent overseas'').
---------------------------------------------------------------------------
In his popular, Notes on the State of Virginia, Thomas
Jefferson accepted the plausibility of the popular notion that
the Indians had migrated to America from Europe via ``the
imperfect navigation of ancient times.'' \43\ Jefferson noted,
however, that Cook's voyage through the Bering Strait suggested
that all the ``Indians of America'' except the ``Eskimaux''
migrated from Asia. Jefferson theorized that the Eskimos had
come to America via Greenland from ``the northern parts of the
old continent,'' i.e., Northern Europe.\44\
---------------------------------------------------------------------------
\43\ Jefferson, Notes on the State of Virginia (1787), in
Jefferson, Writings, at 226. Jefferson's Notes--which had circulated
among several of the Founders for years before the Constitutional
Convention--were written in 1781, published in February 1787 and
appeared in newspapers during the Convention. Barlow to Jefferson, June
15, 1787, in Papers of Thomas Jefferson (Boyd, ed.), 11:473 (``Your
Notes on Virginia are getting into the Gazetts in different States'');
see also, e.g., id. at 8:147, 9:38, 517, 12:136 (Madison's copy); id.
at 10:464, 15:11 (Rutledge's comments on); id. at 8:160, 164 (Adams
comments on); id. at 8:147, 229, 245 (Monroe's copy); id. at 21:392-93
(citations re circulation of Notes).
\44\ Jefferson, Notes, at 226.
---------------------------------------------------------------------------
Modern scholars might be ``puzzled whether they [Eskimos]
were Indians, or a separate and somewhat mysteriously distinct
people on earth * * *'' \45\ Others might question whether the
native people of Hawai`i are ``Indians.'' Efforts to draw such
distinctions would themselves have puzzled the Founding
generation. The ``Indians'' were many peoples, with distinct
languages, cultures and socio-political organizations. They had
diverse origins, perhaps Asia, perhaps Europe, perhaps the
lands of the Bible. But from wherever they came, and whatever
their distinct cultures and governments, they were all
``Indians,'' for they were aboriginal inhabitants of the New
World. The Founding generation had no difficulty thinking of
Eskimos as ``Indians.'' They would have had no more difficulty
treating as ``Indians'' native peoples whose origins lay a
thousand years ago in the South Pacific. Indeed, as one
historian reports, Captain James Cook, the English
``discoverer'' of the Hawaiian islands and a contemporary of
the Founders, referred to the inhabitants of the Hawaiian
Islands as ``Indians.'' \46\ As far as the Founders knew, all
the ``aboriginal inhabitants'' of the New World came from the
South Pacific via the ``imperfect navigation of ancient
times.''
---------------------------------------------------------------------------
\45\ Joseph, Supra, at 57; see also Oxford English Dictionary (1st
ed.) (``OED''), ``Indian'' (``The Eskimos * * * are usually excluded
from the term * * *'').
\46\ Gavan Daws, Shoal of Time, A History of the Hawaiian Islands
2, 19, 23, 52 (1968) (Cook ``spent several years among the savages of
the Pacific, ``Indians,'' as he and everyone else called them.'').
Multiple references in logs and diaries of Captain Cook and his
officers refer to the indigenous people they found in the Hawaiian
Islands as ``Indians.'' For example, Cook wrote that his first mate
``attempted to land but was prevented by the Indians coming down to the
boat in great numbers.'' J.C. Beaglehole, The Journal of Captain James
Cook on His Voyages of Discovery III 267 (1967). David Samwell, the
surgeon on Cook's flagship Discovery, wrote, ``The Indians opened and
made a lane from the Marines to pass.'' id., at 1161.
---------------------------------------------------------------------------
The Founding generation used ``tribes'' to denote peoples
of like kind or kin. As used in the Constitution, the word
``tribe'' does not refer to some specific type of government or
social organization. All Native American peoples were
``tribes,'' whether they lived in villages or spread out in
vast federations or empires. ``Tribe'' and ``nation'' were used
to refer not to governments, but to groups of people
recognizing a common membership or identity as such.
Application of the biblical concept of ``tribes'' to the
``Indians'' reflected the understanding that the natives of the
New World were not one people, but many ``peoples,''
``nations,'' or ``tribes''--terms used interchangeably well
into the Nineteenth Century.\47\
---------------------------------------------------------------------------
\47\ Robert F. Berkhofer, Jr., The White Man's Indian 16 (1979).
---------------------------------------------------------------------------
Eskimos lived in small clans or villages that some scholars
distinguish from ``tribes.'' The Founding era knew no such
technical usage. Notwithstanding the absence of clear
government, Eskimo peoples were called ``tribes'' and
``nations.'' \48\ More generally, peoples of every sort were
``tribes.'' In Gibbon's already popular Decline and Fall of the
Roman Empire (1776), the early inhabitants of Britain were said
to live in ``tribes.'' \49\ The early Greeks and Romans were
``tribes.'' Welshmen belonged to tribes.\50\
---------------------------------------------------------------------------
\48\ Alexander Fisher, A Journal of a Voyage of Discovery (1821)
(``all the Esquimaux tribes'') (quotes in Oswalt, Supra, at 74); The
Private Journal of Captain G.F. Lyon, (1824) (an Eskimo ``tribe'')
(quoted in Oswalt, Supra, at 19); George Lyon, A brief Narrative of an
Unsuccessful Attempt to Reach Repulse Bay (1825); Narrative of the
Second Arctic Expedition Made by Charles F. Hall (Nourse, ed., 1879),
at 63 (describing ``tribe'' of ``Eskimo''); John Murdoch, Review of The
Eskimo Tribes, American Anthropologist, 1:125-133 (1888); Heinrich
Rink, Tales and Traditions of the Eskimo 1-5 (1875) (describing small
and large divisions of Eskimos as ``tribes'').
\49\ Id., Vol. 1 at 33 (describing the ``tribes of Britons'' who
``took up arms with savage fierceness'' and the ``love of freedom
without the spirit of union.'')
\50\ OED, ``Tribe,'' def. 2.a-d. 38
---------------------------------------------------------------------------
For the Founding generation, ``tribes'' came into the
language from the most widely read account of tribal history--
the biblical story of the Twelve Tribes of Israel.\51\ The
Bible gives the history of the Tribes from the birth of the
sons of Israel, through the growth of the families to immense
``tribes'' numbering in the tens of thousands. The Bible
follows the tribes into captivity and exodus and into Canaan,
were the ``tribes'' lived in a unified Kingdom under Kings
David and Solomon.\52\ Even under the reign of Kings, the
peoples remained ``tribes,'' When King Solomon dedicated the
temple in Jerusalem, he called together the leaders of the
``tribes'': ``Solomon assembled the elders of Israel, and all
the heads of the tribes, the chief of the fathers of the
children of Israel, unto King Solomon in Jerusalem, that they
might bring up the ark of the covenant of the Lord out of the
city of David, which is Zion.'' \53\
---------------------------------------------------------------------------
\51\ OED, ``Tribe'' (application of the word ``to the tribes of
Israel. . .from its biblical use, was the earliest use in English'').
\52\ Genesis 49:1-28 (Jacob predicts the fate of the twelve
tribes); Numbers 1 (God instructs Moses to call heads of each tribe); 2
Samuel 5:1-3 (leaders of tribes from league under King David); 1
Chronicles 11:1-3 (same); Psalm 122 (David expresses joy for the house
of God, where tribes give thanks).
\53\ 1 Kings 8:1 (``King James translation'' (1611-1769)); 1 Kings
11:12-13
---------------------------------------------------------------------------
When the Kingdom ended, it divided by tribe. The tribes of
Benjamin and Judah fought the other tribes that revolted and
were ``lost.'' \54\ Throughout all this history, through the
unification and monarchical periods, through the revolt and
diaspora, the Bible taught that the people of Israel remained
``tribes,'' led by their ``chief fathers,'' \55\ In the New
Testament, all the peoples of the earth were ``tribes.'' \56\
In the founding generation, ``tribes'' in the new World, like
``tribes'' in the Bible, referred not to a form of social
organization or government, but to ``peoples'' who identified
themselves by kin, tradition, or faith.
---------------------------------------------------------------------------
\54\ See 1 Kings 12:2 Chronicles 10-11, 36; 2 Kings 17, 25
\55\ Ezra 1:5.
\56\ Matthew 24:30 (Christ prophesizes that, at the end of time
`'then shall all the tribes of the earth mourn, and they shall see the
Son of man coming'').
---------------------------------------------------------------------------
The Founders had seen analogies to the complex tribal
history of the Bible. The Founders knew the native peoples
evolved, united and divided in ever shifting forms of
government. The native peoples had formed ``powerful
confederac[ies],'' tribes united under common chiefs, and
federations of tribes joined with other federations.\57\ The
colonies and the States under the Articles of Confederation had
repeatedly dealt with vast federations of tribes, including the
``Six Nations'' in the north and the ``five civilized tribes''
in the south.\58\ The Indian peoples were ``tribes'' not
because they formed any particular organization, but because
they recognized themselves as distinct peoples, with cultures,
languages and societies separate from each other and from the
European invaders.
---------------------------------------------------------------------------
\57\ Jefferson, Notes, at 221.
\58\ See, e.g., Treaty with the Six Nations, Oct. 22, 1784 (treaty
with the many tribes of Senecas, Mohawks, Onondagas, Cayugas, Oneida
and Tuscarora), in C.J. Kappler, ed., Indian Affairs: Laws and Treaties
2:5-6; Treaty of Treaty of Forth McIntosh, Jan. 21, 1785 (treaty with
the Wiandot, Delaware, Chippewa, and Ottawa ``and all their tribes''),
in id. at 2:6-8; Treaty of Hopewell, Nov. 28, 1785 (treaty with all the
``tribes'' of the Cherokee), in id. at 2:8-11.
---------------------------------------------------------------------------
By the Founding era, ``tribe'' had expanded from groups of
people to the natural division of plants and animals. Milton
asked in Paradise Lost, ``Oh flours * * * who now shall reare
ye to the Sun, or ranke Your Tribes?'' (xi 279). John Adams
wrote, ``there is, from the highest Species of animals upon
this Globe which is generally thought to be Man, a regular and
uniform Subordination of one Tribe to another down to the
apparently insignificant animalcules in pepper Water.'' \59\
all creation came in tribes. Mankind was organized in tribes,
the Animal Kingdom was organized in ``tribes,'' the ``Vegetable
Kingdom'' was organized in ``Tribes.'' \60\ To every kind its
tribe.
---------------------------------------------------------------------------
\59\ Adams, July 1756 (emphasis added), L.H. Butterfield, et al.,
eds., Diary and Autobiography of John Adams (Cambridge, Mass., 1961),
I:39.
\60\ Id., see also OED, ``Tribe,'' 5.a; Cook, supra, at ch. II, p.
300 (In the west side of America, ``[t]he insect tribe seems to be more
numerous'').
---------------------------------------------------------------------------
The Founding generation knew Indian peoples who lived in
small, leaderless bands; they also knew Indian peoples
organized in complex federations and empires. The Europeans and
the American colonists understood that the aboriginal peoples
warred with and conquered each other, made agreements and
alliances, formed confederations and even kingdoms and empires.
Through all this complex and still evolving history, the Indian
``peoples'' were called ``nations'' and ``tribes.'' The
founding generation would have had no difficulty conceiving of
Indian tribes who originated in Polynesia, and lived in a
``kingdom'' under a ``king.''
As Jefferson's Notes on the State of Virginia and other
contemporary works show, the division of the world into
``European settlers'' and ``Indians'' was not essentially
racial. The Indians were not a race, they were many peoples,
thought to share diverse ancestry with peoples all over the
world. The distinction between European and Native American
peoples was political. The European settlers (who arrived with
Royal charters) recognized the ``aboriginal peoples'' as
separate nations--separate sovereigns with whom they would have
to deal as one nation to another. Before and after the
Constitution, the new settlers treated the Indian peoples as
separate nations, with whom they made war, peace and treaties.
The treatment of the aboriginal peoples under the Constitution
was systematically and structurally distinct from the inhumane
and unendurable treatment accorded to ``slaves.'' This
distinctive nation-to-nation relationship survived the
settlement of the West, the Civil War Amendments, and two
hundred years of Congressional action and judicial
construction.
The Articles of Confederation gave the Continental Congress
power over relations with the Indians only so long as Congress'
dealings with Indians within a State did not ``infringe'' that
State's legislative power. This created constant friction over
where the States' power ended and Congress' power began. The
sole stated purpose of the Indian terms of the new Constitution
was to eliminate any uncertainty as to Congress' supremacy. The
Framers intended to grant Congress broad, supreme authority to
regulate Indian affairs. The two references to ``Indians'' in
the Constitution generated virtually no debate at any time in
the Constitutional Convention. That relations with the Indians
should be one of the Federal powers appears to have been
universally accepted. The Framers sought only to make clear
that Congress' power here was supreme.
The Articles had given the Continental Congress ``sole and
exclusive right and power'' of regulating relations with
Indians who were ``not members of any of the states, provided
that the legislative right of any state within its own limits
be not infringed or violated.'' Articles of Confederation, Art.
X, March 1, 1778 (emphasis added). As Madison explained, this
language created two major problems. First, no one knew when or
whether Indians were ``members of states''; second, the grant
to Congress of ``sole and exclusive power,'' so long as
Congress did not ``intrud[e] on the internal right'' of States
was ``utterly incomprehensible.'' The provision had been a
source of ``frequent perplexity and contention in the federal
councils.'' \61\ Capitalizing on the uncertainty, several
states (Georgia, New York and North Carolina) had infringed
Congress' power by making their own arrangements with local
Indians. As a result, during the Constitutional Convention and
Ratification, Georgia was in armed conflict, and on the verge
of war, with the powerful Creek Nation.
---------------------------------------------------------------------------
\61\ Federalist 42, in XIV Documentary History of the Ratification
of the Constitution (J. Kaminiski, ed., 1983) (``Documentary
History''), XV:431.
---------------------------------------------------------------------------
The only debate on the issue in the Convention focused on
the need for federal supremacy over the states. Madison
objected early on to the ``New Jersey Plan'' on the ground that
it failed to bar states from encroaching on Congress' power
over ``transactions with the Indians.'' \62\ In August, Madison
proposed that Congress be given the power ``[t]o regulate
affairs with the Indians as well within as without the limits
of the United States.'' \63\ Madison's proposal was submitted
to the Committee on Detail without discussion. The Committee on
Detail recommended that power over Indians be dealt with in the
Commerce clause, which would provide Congress with power over
commerce ``with the Indians, within the limits of any State,
not subject to the laws thereof.'' The proposal provoked no
debate.\64\ On August 31st, the Convention referred various
``parts of the Constitution'' (including the Commerce Clause)
to a ``Committee of eleven,'' including Madison.\65\ Without
recorded discussion, the Committee recommended that the
language be simplified to commerce ``with the Indian tribes.''
\66\ The Convention accepted the recommendation without debate
or dissent.\67\
---------------------------------------------------------------------------
\62\ ``Notes of James Madison,'' June 19, 1787, in The Records of
the Federal Convention of 1787, at 3:316 (Max Farrand, rev. ed. 1966)
[hereafter, ``Federal Convention''] (``By the federal articles,
transactions with the Indians appertain to Congress. Yet in several
instances, the States have entered into treaties & wars with them'');
see also, id. at 325-26.
\63\ 2 Federal Convention, at 321, 324; see also id. at 143
(Rutledge noted that ``Indian affairs'' should be added to Congress'
powers).
\64\ Id at 367. Similarly, since Indians did not pay tax, the
proposal to exclude ``Indians not taxed'' from the apportionment clause
was accepted without discussion.
\65\ Id. at 481.
\66\ Id. at 493, 496-97, 503 (emphasis added).
\67\ See id. at 495. The language appears in the final version. Id
at 569, 595.
---------------------------------------------------------------------------
There is no support for the notion that the reference to
``Indian tribes'' was intended to narrow Congress' authority
over Indian affairs. As noted above, the debate in the
Convention focused solely on making clear the supremacy of
Congress' power. During the ratification debates, the new
Constitution was defended on the ground that it gave Congress
power over ``Indian affairs'' and ``trade with the Indians.''
\68\ In the only extended discussion of the issue during
Ratification, Madison used the phrases ``commerce with the
Indian tribes'' and ``trade with Indians'' interchangeably;
Madison explained that the purpose of the new provision was to
eliminate the limitation on Congress' power over trade with the
Indians living within the States.\69\ The notion that the
reference to ``tribes'' was a limit on Congress' ability to
deal with the native peoples is without support and is contrary
to the only expressions of the Framers' original intent. The
Constitution gave Congress power over the Indian peoples,
however and wherever it found them.
---------------------------------------------------------------------------
\68\ Federalist 40, in Documentary History, XV: 406 (Constitution
represents ``expansion on the principles which are found in the
articles of confederation,'' which gave Congress power over ``trade
with the Indians''); Federal Farmer, October 8, 1787, in id. at XIV: 24
(under the new Constitution, federal government has power over ``all
foreign concerns, causes arising on the seas, to commerce, imports,
armies, navies, Indian affairs''); Federal Farmer, October 10, 1787, in
id. at 30, 35 (federal power over ``foreign concerns, commerce, impost,
all causes arising on the seas, peace and war, and Indian affairs'').
The Federal farmer Letters are considered ``one of the most significant
publications of the ratification debate.'' Id. at 14.
\69\ Madison, Federalist 42, in Documentary History XIV: 430-31.
---------------------------------------------------------------------------
The First Federal Congress treated the Constitution as
granting broad power to regulate ``trade and intercourse'' with
``Indians,'' ``Indian tribes,'' ``nations of Indians,'' and
``Indian country.'' \70\ Congress understood its power to
``operate immediately on the persons and interests of
individual citizens.'' \71\ The actions of the new government
also show that even when the Framers knew nothing about the
organization of Indian peoples, they nevertheless intended to
assert Federal power over those peoples. Shortly after taking
office, President Washington gave instructions to Commissioners
to negotiate with the Creeks. It was, as noted, the war between
the Creeks and Georgia that had fostered the apparently
universal conclusion that the new Federal government must be
given supremacy over Indian affairs. Washington instructed the
Commissioners to determine the nature of the Creek's political
divisions and governments, including ``[t]he number of each
division''; ``[t]he number of Towns in each District''; ``[t]he
names, Characters and residence of the most influential
Chiefs--and * * * their grades of influence.'' And, most
tellingly, the Commissioners were to learn ``[t]he kinds of
Government (if any) of the Towns, Districts, and Nation.'' \72\
Washington, like other Founders, did not know how the Creek
lived and how (if at all) they governed themselves. But however
the Indian peoples lived, and however (if at all) they governed
themselves, they were still Indian peoples and they were still
subject to the supreme power of the Federal government over
Indian tribes.
---------------------------------------------------------------------------
\70\ ``An Act to regulate trade and intercourse with the Indian
tribes,'' July 22, 1790, ch. 33, Sec. 4, 1 Stat. 137, in 1 Doc. Hist.
of the First Federal Congress, 1789-1791 (De Pauw, ed., 1972) (``First
Federal Congress''), at 440.
\71\ Madison, Federalist 40, in documentary History, XV: 406.
\72\ Washington, Instructions to the Commissioners for Southern
Indians, August 29, 1789, in 2 First Federal Congress, at 207 (emphasis
added).
---------------------------------------------------------------------------
President Jefferson gave similar instructions to Lewis and
Clark. When they encountered unknown Indian peoples, the
explorers were to learn the ``names of the nations''; ``their
relations with other tribes or nations''; their ``language,
traditions, monuments''; and the ``peculiarities in their laws,
customs & dispositions.'' \73\ Like Washington, Jefferson knew
there was much he and his fellow citizens did not know about
the ``Indian'' peoples; but he intended to find out and to
assert Federal authority over whatever he found.
---------------------------------------------------------------------------
\73\ Thomas Jefferson, ``Instructions to Captain Lewis,'' June 20,
1803, in Jefferson, Writings, supra, at 1126, 1128.
---------------------------------------------------------------------------
It is inconceivable anyone thought that if Washington's
Commissioners or Lewis and Clark found a native people living
without ``chiefs,'' like many Eskimo, or under a King like
Montezuma or Kamehameha, these people would be beyond Congress'
power over Indian ``tribes'' or nations.
Nor did the Framers of the Fourteenth Amendment intend to
eliminate Congress' special power to adopt legislation singling
out and favoring Indians; they did not intend to alter the
nation-to-nation relationships between the United States and
the Indian peoples created by the Constitution. Indeed, the
Framers of the Amendment were at pains to make certain that
they preserved that structure.
``Indians'' are expressly singled out for special treatment
by the text of the Amendment. In order to eliminate the morally
repugnant language which counted slaves as three-fifths
persons, the Framers of the Fourteenth Amendment redrafted the
apportionment clause. The Framers deleted the ``three-fifths
persons,'' but retained the express exclusion of ``Indians not
subject to tax'' (Amend. XIV, Sec. 1), because, while they
intended to wipe out the badges and incidents of slavery, they
intended to preserve the special relationship between the
United States and the Indian people. Before and after the
Amendment, Indians were not citizens, they did not vote, they
did not count for apportionment, and they were subject to
special legislation in furtherance of Congress' historic trust
responsibilities.
The only debate during the drafting and ratification of the
Fourteenth Amendment was not about whether the special
relationship with the Indian people should be preserved, but
about how to make certain it was preserved. When one Senator
suggested that specific reference be made excluding ``Indians''
from the citizenship clause, the Senator presenting the clause
argued this was unnecessary. The Amendment provided citizenship
only to persons ``within the jurisdiction'' of the United
States,\74\ and Indian nations were treated like alien peoples
not fully within the jurisdiction of the government:
---------------------------------------------------------------------------
\74\ Similar limiting language occurs in the Equal Protection
Clause.
in the very Constitution itself there is a provision
that Congress shall have power to regulate commerce,
not only with foreign nations and among the States, but
also with Indian tribes. That clause, in my judgment,
presents a full and complete recognition of the
national character of the Indian tribes.\75\
---------------------------------------------------------------------------
\75\ Cong. Globe, 39th Congress, 1st Sess. 2895.
Congress debated what language to adopt in order to make
certain that the special status of the Indian tribes was
preserved.\76\ There was no support for, or consideration given
to, eliminating the special relationship between the United
States and the Indian peoples. The uniform intent was to
preserve Congress' ability to decide when Indians would be
granted citizenship, when Indians would be taxed, and when
Indians would be subject to special legislation.\77\
---------------------------------------------------------------------------
\76\ See, e.g., Remarks of Sen. Doolittle, Cong. Globe, 39th Cong.,
1st Sess., 2895-2896 (1866) (``[Senator Howard] declares his purpose to
be not to include Indians within this constitutional amendment. In
purpose I agree with him. I do not intend to include them. My purpose
is to exclude them'').
\77\ Congress expressed the same intent in the Civil Rights Act
that same year. The Act, granting citizenship to the emancipated
slaves, specifically excluded ``Indians not taxed.'' Civil Rights Act,
ch. 31, 14 Stat. 27 (1866).
---------------------------------------------------------------------------
For two hundred years, the Supreme Court has recognized the
political distinction the Constitution draws between ``Indian
tribes'' and all other people. The early opinions of Chief
Justice John Marshall reflect the original intent of the
Framers and lay the groundwork for this Court's jurisprudence.
Marshall wrote that ``[t]he condition of the Indians in
relation to the United States is perhaps unlike that of any
other two people in existence.'' Cherokee Nation v. Georgia, 30
U.S. (5 Pet.) 1, 16 (1831). With deliberate irony, he called
the Indian tribes ``domestic dependent nations,'' Id at 17. The
Indian peoples had surrendered ``their rights to complete
sovereignty,'' Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543,
572-74 (1823), and yet they continued to be ``nations'' that
governed themselves. See Worcester v. Georgia, 31 U.S. (6 Pet.)
515, 561 (1832).
Marshall knew that the constitutional text reflected this
preexisting nation-to-nation relationship. The Indian Commerce
Clause, U.S. Const. art. I., Sec. 3, cl. 8, and the Treaty
Clause, Id. art. II, Sec. 2, cl. 2, granted Congress board
power to regulate Indian affairs. These provisions permitted
the United States to fulfill its obligations to the dependent
Indian ``nations'' that were its ``wards.'' Cherokee Nation, 30
U.S. (5 Pet.) at 17-18; Worcester; 31 U.S. (6 Pet.) at 558-59.
As ``guardian,'' Congress had both the obligation and the power
to enact legislation protecting the Indian nations. See
Worcester; 31 U.S. (6 Pet.) at 560-61 accord Cherokee Nation,
30 U.S. (5 Pet.) at 17 (``[t]hey look to our government for
protection; rely upon its kindness and its power; appeal to it
for relief to their wants'').
Marshall defined ``Indians'' broadly to include all of the
``original inhabitants'' or ``natives'' who occupied America
when it was discovered by ``the great nations of Europe.''
Johnson, 21 U.S. (8 Wheat.) at 572-74; Worcester; 31 U.S. (6
Pet.) at 544 (1832) (Indians are ``those already in possession
[of land], either as aboriginal occupants, or as occupants by
virtue of a discovery made before the memory of man'').\78\
---------------------------------------------------------------------------
\78\ See Johbnson, 21 U.S. (8 Wheat.) at 575 (Indians in French
Canada); id. at 581 (Indians in Nova Scotia); Id. at 584-87 (Indians in
Virginia, Kentucky, the Louisiana Purchase, and Florida). Marshall
noted the United States had dealt with variously organized ``tribes''
or ``confederacies,'' See id. at 546-49.
---------------------------------------------------------------------------
He also conceived of ``tribes'' in broad, inclusive terms.
He used ``tribe'' and ``nation'' interchangeable: A ``tribe or
nation,'' he noted, ``means a people distinct from others''--a
``distinct community,'' Worcester; 31 U.S. (6 Pet.) at 559,
561.\79\ Like the Founders, Marshall defined an ``Indian
tribe'' as nothing more than a community, large or small, of
descendants of the peoples who inhabited the New World before
the Europeans.
---------------------------------------------------------------------------
\79\ See also Cherokee Nation, 30 U.S. (5 Pet.) at 20 (``an Indian
tribe or nation within the United States''); Johnson; 21 U.S. (8
Wheat.) at 590 (``the tribes of Indians inhabiting this country'').
---------------------------------------------------------------------------
Although the aboriginal ``tribes'' or ``nations'' or
``peoples'' were defined in part by common ancestry, their
constitutional significance lay in their separate existence as
``independent political communities,'' Id. at 559 (emphasis
added). The ``race'' of Indian peoples was constitutionally
irrelevant. Native peoples were ``nations,'' id. at 559-60, and
the relationship between the United States and the natives
reflected a political settlement between conquered and
conquering nations.
The Supreme Court has kept faith with Marshall's
conception. The Indian nations have always been defined by
ancestry and political affiliation. In the native cultures, the
two are inextricably intertwined. The Supreme Court's
definition is legal, and the Native American's self-definition
is historic, religious or cultural; but the two reduce to the
same elements: ``Indians'' are (i) the descendants of
aboriginal peoples who (ii) belong to some Native American
``people,'' ``nation,'' ``tribe,'' or ``community,'' as the
founding generation understood those terms.\80\
---------------------------------------------------------------------------
\80\ See, e.g., Montoya v. United States, 180 U.S. 261, 266 (1901)
(``a body of Indians of the same or a similar race, united in a
community under one leadership or government, and inhabiting a
particular though sometimes ill-defined territory''); United States v.
Candelarid, 271 U.S. 432, 442 (1926); see Oklahoma Tax Comm'n v. Sac &
Fox Nation, 508 U.S. 114, 123 (1993); United States v. Antelope, 430
U.S. 641, 647 n.7 (1977) (individuals ``anthropologically'' classified
an Indians may be outside Congress' Indian commerce power if they sever
relations with tribe).
---------------------------------------------------------------------------
These interwoven qualifications reflect the Supreme Court's
consistent understanding that constitutionally relevant Indian
status, while based in part on ancestry, is a political
classification, United States v. Antelope, 430 U.S. 641, 646-47
(1977). It is an individual's membership in a ``political
community'' of Indians--even a community in the making--and not
solely his or her racial identify, that brings him or her
within Congress' broad authority to regulate Indian affairs.
Id. at 646.
Nor does the use of blood quantum as part of the formula to
determine who is and is not a Native American constitute an
impermissible ``racial'' discrimination. The Supreme Court has
repeatedly made clear that Indian tribes are the political and
familial heirs to ``once-sovereign political communities''--not
``racial groups.'' \81\ 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.'' \82\
From time immemorial, Native American communities have defined
themselves at least in part by family and ancestry.\83\ Kinship
and ancestry is part of what it means to be an ``Indian.''
Indians by ancestry or blood is what the Framers meant by
``Indians.'' It is what Chief Justice Marshall meant by
``Indians.'' It is what the Framers of the Fourteenth Amendment
meant by ``Indians.'' This central conception of ``Indian''
identity is woven into the Constitution and the entire body of
law that has grown up in reliance on that conception.
---------------------------------------------------------------------------
\81\ Antelope, 430 U.S. at 646; see Fisher v. District Court, 424
U.S. 382, 389 (1976); Mancari, 417 U.S. at 553-54; see also Sac & Fox
Nation, 508 U.S. at 123; United States v. Mazurie, 419 U.S. 544, 557
(1975).
\82\ Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978);
Cherokee Intermarriage Cases, 203 U.S. 76, 95 (1906); Boff v. Burney,
168 U.S. 218, 222-23 (1897).
\83\ See Indian Policy Report at 108-09 (``the tribe, as a
political institution, has primary responsibility to determine tribal
membership for purposes of voting in tribal elections * * * and other
rights arising from tribal membership. Many tribal provisions call for
one-fourth degree of blood of the particular tribe but tribal
provisions vary widely. A few tribes require as much as one-half degree
of tribal blood * * *''); accord Felix S. Cohen, Handbook of Federal
Indian Law 22-23 & n.27 (1982 ed.).
---------------------------------------------------------------------------
Congressional authority to use such traditional
requirements for tribal membership or benefits has never been
doubted. In John, the Supreme Court approved Congress' creation
of an Indian reservation for the benefit of ``Chocktaw Indians
of one-half or more Indian blood, resident in Mississippi,''
id., 437 U.S. at 646. The Court unhesitatingly applied the
definition of ``Indian'' that appears in the Indian
Reorganization Act, which has governed Indian tribes since
1934: `` `all other persons of one-half or more Indian blood.'
'' Id. at 650 (quoting 25 U.S.C. Sec. 479). Similarly, the
Alaska Native claims Settlement Act's use of a blood quantum
formula as one factor in determining ``native'' status is a
valid method of defining those belonging to the group eligible
for statutory benefits, and the use of the blood quantum ``does
not detract from the political nature of the classification.''
\84\ The use of blood ties is integral to the nature of the
political deal struck between the conquering Europeans and the
native peoples, as they set out to maintain partially separate
existences while inhabiting the same country.
---------------------------------------------------------------------------
\84\ Alaska Chapter v. Pierce, 694 F.2d 1162, 1168-69 n. 10 (9th
Cir. 1982) (noting absence of other practicable methods, like tribal
rolls or proximity to reservations).
---------------------------------------------------------------------------
The constitutional text and historic relationship gives
Congress not just the ``right'' to discriminate between Native
Americans and others, but the responsibility to do so. As the
Supreme Court has long recognized, from the relationship
between these former sovereign peoples and the ``superior
nation'' that conquered them arises ``the power and the duty''
of the United States to ``exercis[e] a fostering care and
protection over all dependent Indian communities within its
borders. * * *'' \85\ Recently, the Supreme Court acknowledged
the continued significance of this historic trust
relationship.\86\
---------------------------------------------------------------------------
\85\ Kagama, 118 U.S. 375, 384-85 (1886) (emphasis added); See
Seminole Nation v. United States, 316 U.S. 286, 296 (1942) (the
government owes a ``distinctive obligation of trust'' to Indians).
\86\ See Greater New Orleans Broadcasting Ass'n v. United States,
527 U.S. 173, 193 (1999) (recognizing ``special federal interest in
protecting the welfare of Native Americans'').
---------------------------------------------------------------------------
The Supreme Court has repeatedly applied the concepts of
``Indian'' and ``tribe'' to a wide variety of Native American
communities, recognizing the constant evolution of Native
community life and that the questions whether and how to treat
with these changing communities are assigned by the
Constitution to Congress. In The Kansas Indians, 72 U.S. 737
(1866), the Court recognized that the Ohio Shawnees remained a
``tribe,'' even though tribal property was no longer owned
communally and the tribe had abandoned Indian customs ``owing
to the proximity of their white neighbors.'' Id., 72 U.S. at
755-57.
Fifty years later, the Court approved similar tribal
designation for the Pueblo Indians of New Mexico. After long
experience under Spanish rule, the Pueblo Indians seemed little
like the ``savages'' of James Fennimore Cooper. The Pueblo
Indians lived in villages with organized municipal governments;
they cultivated the soil and raised livestock; they spoke
Spanish, worshiped in the Roman Catholic Church; prior to the
acquisition of New Mexico by the United States, they enjoyed
full Mexican citizenship. See United States v. Joseph, 94 U.S.
(4 Otto.) 614, 616 (1877). Nevertheless, the Pueblo Indians
lived in ``distinctly Indian communities,'' and Congress acted
properly under the Indian Commerce Clause in determining that
they were ``dependent communities entitled to its aid and
protection, like other Indian tribes.'' United States v.
Sandoval, 231 U.S. 28, 46-47 (1913); Candelaria, 271 U.S. at
439-40, 442--43. For Native American ``communities,'' the Court
held that ``the questions whether, to what extent, and for what
time they shall be recognized and dealt with as dependent
tribes requiring the guardianship and protection of the United
States are to be determined by Congress * * *'' Sandoval, 231
U.S. at 46; accord Tiger v. Western Inv. Co., 221 U.S. 286, 315
(1911).
Sixty years later, in United States v. John, 437 U.S. 634
(1978) the Court recognized Congress' authority to create a
reservation for the benefit of Choctaw Indians in Mississippi,
even though (1) they were ``merely a remnant of a larger group
of Indians'' that had moved to Oklahoma; (2) ``federal
supervision over them had not been continuous''; and (3) they
had resided in Mississippi for more than a century and had
become fully integrated into the political and social life of
the State. 437 U.S. at 652-53. The Mississippi Choctaw were
Indians. They had recently organized into a distinctly Indian
community. The Court therefore deferred to Congress'
determination that they were a ``tribe for the purposes of
federal Indian law.'' Id. at 650 n.20; 652-53.
Similarly, the Supreme Court has recognized Congress' broad
authority to deal with individual ``Indians'' \87\ or large
organizations comprised of numerous ``tribes.'' \88\ Congress
may create or recognize new aggregations of Native Americans,
so long as such legislation is rationally related to the
fulfillment of Congress' trust obligation to the historic
Indian peoples.\89\ Congress' treatment of the Alaska native
people--including the creation of unique regional corporations
whose shareholders comprise numerous Native villages--has
properly been upheld as within Congress' special power over and
responsibility for the Native American peoples.\90\
---------------------------------------------------------------------------
\87\ United States v. Holliday, 70 U.S. (3 Wall.) 407, 417 (1865)
(regulation of ``commerce with the Indian tribes means'' regulation of
``commerce with the individuals composing those tribes''); see Morton
v. Ruiz, 415 U.S. 199, 230-38 (1974) (addressing the scope of federal
Indian welfare benefits for individuals living in Indian communities);
Mancari, 417 U.S. at 551-55.
\88\ See Cherokee Nation v. Journeycake, 155 U.S. 196 (1894)
(Delaware Indians entitled to rights of Cherokee Nation which Delawares
had joined); United States v. Blackfeather, 155 U.S. 218 (1894) (same
for Shawnee.)
\89\ See John, 437 U.S. at 652-53; Moe v. Confederated Salish &
Kootenai Tribes, 425 U.S. 463, 480 (1976).
\90\ Although the Alaska natives' situation is ``distinctly
different from that of other American Indians,'' Alaska Chapter, 694
F.2d at 1168-69 n. 10l see Metlakatla Indian Community v. Egan, 369
U.S. 45, 50-51 (1962), it is ``well established'' that Athabascan
Indians, Eskimos, and Aleuts are ``dependent Indian people'' within the
meaning of the Constitution. Alaska Pacific Fisheries v. United States,
248 U.S. 78, 87-89 (1918); see also Pence v. Kleppe, 529 F.2d 135, 138-
39 n.5 (9th Cir. 1976) (``Indian'' means ``the aborigines of America''
and includes Eskimos and Aleuts in Alaska); United States v. Native
Village of Unalakleet, 411 F.2d 1255, 1256-57 (Ct. Cl. 1969) (``Eskimos
and Aleuts are Alaskan aborigines'' and, therefore, ``Indians'').
---------------------------------------------------------------------------
demographics of the native hawaiian population
Housing
Within the last several years, three recent studies have
documented the poor housing conditions that confront Native
Hawaiians who either reside on the Hawaiian home lands or who
are eligible to reside on the home lands.
In 1992, the National Commission on American Indian, Alaska
Native, and Native Hawaiian housing issued its final report to
the Congress, ``Building the Future: A Blueprint for Change.''
The Commission's study compared housing data for Native
Hawaiians with housing information for other citizens in the
State of Hawai`i. The Commission found that Native Hawaiians,
like American Indians and Alaska Native, lacked access to
conventional mortgage lending and home financing because of the
trust status of the Hawaiian home lands, and that Native
Hawaiians had the worst housing conditions in the State of
Hawai`i and the highest percentage of homelessness,
representing over 30 percent of the State's homeless
population.
The Commission concluded that the unique circumstances of
Native Hawaiians require the enactment of new legislation to
alleviate and address the severe housing needs of Native
Hawaiians and recommended that the Congress extend to Native
Hawaiians the same Federal housing assistance programs that are
provided to American Indians and Alaska Natives under the Low-
Income Rental, Mutual Help, Loan Guarantee Program and
Community Development Block Grant programs. Subsequently, the
Community Development Block Grant program authority was amended
to address the housing needs of Native Hawaiians.
In 1995, the U.S. Department of Housing and Urban
Development (HUD) issued a report entitled ``Housing Problems
and Needs of Native Hawaiians.'' The HUD report was
particularly helpful because it compared the data on Native
Hawaiian housing conditions with housing conditions nationally
and with the housing conditions of American Indians and Alaska
Natives.
The most alarming finding of the HUD report was that Native
Hawaiians experience the highest percentage of housing problems
in the nation--49 percent--higher than even that of American
Indians and Alaska Natives residing on reservations (44
percent) and substantially higher than that of all U.S.
households (27 percent). Additionally, the HUD study found that
the percentage of overcrowding in the Native Hawaiian
population is thirty-six percent as compared to three percent
for all other households in the United States.
Applying the HUD guidelines, 70.8 percent of Native
Hawaiians who either reside or who are eligible to reside on
Hawaiian home lands have incomes which fall below the median
family income in the United States, and 50 percent of those
Native Hawaiians have incomes below thirty percent of the
median family income in the United States.
Also in 1995, the Hawai`i State Department of Hawaiian Home
Lands published a Beneficiary Needs Study as a result of
research conducted by an independent research group. This study
found that among the Native Hawaiian population, the needs of
Native Hawaiians eligible to reside on the Hawaiian home lands
are the most severe--with 95 percent of home lands applicants
(16,000) in need of housing, and with one-half of those
applicant households facing overcrowding and one-third paying
more than 30 percent of their income for shelter.
Health status
Language contained in the 1984 Supplemental Appropriations
Act, Public Law 98-396, directed the Department of Health and
Human Services to conduct a comprehensive study of the health
care needs of Native Hawaiians. The study was conducted under
the aegis of Region IX of the Department by a consortium of
health care providers and professionals from the State of
Hawai`i in a predominantly volunteer effort, organized by Alu
Like, Inc., a Native Hawaiian organization. An island-wide
conference was held in November of 1985 in Honolulu to provide
an opportunity for members of the Native Hawaiian community to
review the study's findings. Recommended changes were
incorporated in the final report of the Native Hawaiian Health
Research Consortium, and the study was formally submitted to
the Department of Health and Human Services in December of
1985. The Department submitted the report to the Congress on
July 21, 1986, and the report was referred to the Select
Committee on Indian Affairs.
Because the Consortium report's findings as the health
status of Native Hawaiians was compared only to other
populations within the State of Hawai`i, the Select Committee
requested that the Office of Technology Assessment (OTA), an
independent agency of the Congress, undertake an analysis of
Native Hawaiian health statistics as they compared to national
data in other United States populations. Using the same
population projection model that was employed in OTA's April
1986 report on ``Indian Health Care to American Indian and
Alaska Native Populations,'' and based on additional
information provided by the Department of Health and the Office
of Hawaiian Affairs of the State of Hawai`i, the Office of
Technology Assessment report contains the following findings:
The Native Hawaiian population living in Hawai`i
consists of two groups, Hawaiians and part-Hawaiians,
who are distinctly different in both age distributions
and mortality rates. Hawaiians comprise less than 5
percent of the total Native Hawaiian population and are
much older than the young and growing part-Hawaiian
populations.
Overall, Native Hawaiians have a death rate that is
34 percent higher than the death rate for the United
States all races, but this composite masks the great
differences that exist between Hawaiians and part-
Hawaiians. Hawaiians have a death rate that is 146
percent higher than the U.S. all races rate. Part-
Hawaiians also have a higher death rate, but only 17
percent greater. A comparison of age-adjusted death
rates for Hawaiians and part-Hawaiians reveals that
Hawaiians die at a rate 110 percent higher than part-
Hawaiians, and this pattern persists for all except one
of the 13 leading causes of death that are common to
both groups.
As in the case of the U.S. all races population,
Hawaiian and part-Hawaiian males have higher death
rates than their female counterparts. However, when
Hawaiian and Part-Hawaiian males and females are
compared to their U.S. all races counterparts, females
are found to have more excess deaths than males. Most
of these excess deaths are accounted for by diseases of
the heart and cancers, with lesser contributions from
cerebrovascular diseases and diabetes mellitus.
Diseases of the heart and cancers account for more
than half of all deaths in the U.S. all races
population, and their pattern is also found in both the
Hawaiian and part-Hawaiian populations, whether grouped
by both sexes or by male or female. However, Hawaiians
and part-Hawaiians have significantly higher death
rates than their U.S. all races counterparts, with the
exception of part-Hawaiian males, for whom the death
rate from all causes is approximately equal to that of
U.S. all races males.
One disease that is particularly pervasive is
diabetes mellitus, for which even part-Hawaiian males
have a death rate 128 percent higher than the rate for
U.S. all races males. Overall, Native Hawaiians die
from diabetes at a rate that is 222 percent higher than
for the U.S. all races. When compared to their U.S. all
races counterparts, deaths from diabetes mellitus range
from 630 percent higher for Hawaiian females and 538
percent higher for Hawaiian males, to 127 percent
higher for part-Hawaiian females and 128 percent higher
for part-Hawaiian males.
There is thus little doubt that the health status of
Native Hawaiians is far below that of other U.S.
population groups, and that in a number of areas, the
evidence is compelling that Native Hawaiians constitute
a population group for whom the mortality rate
associated with certain diseases exceed that for other
U.S. populations in alarming proportions.
Native Hawaiians premise the high mortality rates and
the incidence of disease that far exceed that of other
populations in the United States upon the breakdown of
the Hawaiian culture and belief systems, including
traditional healing practices, that was brought about
by western settlement, and the influx of western
diseases to which the native people of the Hawaiian
Islands lacked immune systems. Further, Native
Hawaiians predicate the high incidence of mental
illness and emotional disorders in the Native Hawaiian
population as evidence of the cultural isolation and
alienation of the native peoples, in a statewide
population in which they now constitute only 20
percent. Settlement from both the east and the west
have not only brought new diseases which decimated the
Native Hawaiian population, but which devalued the
customs and traditions of Native Hawaiians, and which
eventually resulted in Native Hawaiians being
prohibited from speaking their native tongue in school,
and in many instances, at all.
In 1998, Papa Ola Lokahi, a Native Hawaiian organization
which oversees the administration of the Federally-authorized
Native Hawaiian health care systems, updated the health care
statistics from the original E Ola Mau report. In addition, on
an annual basis, Papa Ola Lokahi extrapolates the data on
Native Hawaiians gathered yearly by the Hawai`i State
Department of health from the Department's behavioral risk
assessment and health surveillance survey. The findings from
those assessments revealed that--
With respect to cancer, Native Hawaiians have the
highest cancer mortality rates in the State of Hawai`i (231 out
of every 100,000 residents), 45 percent higher than that for
the total State population. Native Hawaiian males have the
higher cancer mortality rates in the State of Hawai`i for
cancers of the lung, liver, and pancreas, and for all cancers
combined, and the highest years of productive life lost from
cancer in the State of Hawai`i. Native Hawaiian females ranked
highest in the State of Hawai`i for cancers of the lung, liver,
pancreas, breast, cervix uteri, corpus uteri, stomach, and
rectum, and for all cancers combined.
With respect to breast cancer, Native Hawaiians
have the highest mortality rates in the State of Hawai`i, and
nationally Native Hawaiians have the third highest mortality
rates due to breast cancer.
Native Hawaiians have the highest mortality rates
from cancer of the cervix and lung cancer in the State of
Hawai`i, and Native Hawaiian males have the second highest
mortality rates due to prostate cancer in the State.
For the years 1989 through 1991, Native Hawaiians
had the highest mortality rate due to diabetes mellitus in the
State of Hawai`i, with full-blooded Hawaiians having a
mortality rate that is 518 percent higher than the rate for the
statewide population of all other races, and Native Hawaiians
who are less than full-blood having a mortality rate that is 79
percent higher than the rate for the statewide population of
all other races.
In 1990, Native Hawaiians represented 44 percent
of all asthma cases in the State of Hawai`i for those eighteen
years of age and younger, and 35 percent of all asthma cases
reported, and in 1992, the Native Hawaiian rate for asthma was
73 percent higher than the rate for the total statewide
population.
With respect to heart disease, the mortality rate
for Native Hawaiians from heart disease is 66 percent higher
than for the entire State of Hawai`i, and Native Hawaiian males
have the greatest years of productive life lost in the State of
Hawai`i. The death rate for Native Hawaiians from hypertension
is 84 percent higher than that for the entire State, and the
death rate from stroke for Native Hawaiians is 13 percent
higher than for the entire State.
Native Hawaiians have the lowest life expectancy
of all population groups in the State of Hawai`i. Between 1910
and 1980, the life expectancy of Native Hawaiians from birth
has ranged from five to ten years less than that of the overall
State population average, and the most recent data for 1990
indicates that Native Hawaiians life expectancy at birth is
approximately five years less than that of the total State
population.
With respect to prenatal care, as of 1996, Native
Hawaiian women have the highest prevalence of having had no
prenatal care during their first trimester of pregnancy,
representing 44 percent of all such women statewide. Over 65
percent of the referrals to Healthy Start in fiscal year 1996
and 1997 were Native Hawaiian newborns, and in every region of
the State of Hawai`i, many Native Hawaiian newborns begin life
in a potentially hazardous circumstance.
In 1996, 45 percent of the live births to Native
Hawaiian mothers were infants born to single mothers.
Statistics indicated that infants born to single mothers have a
higher risk of low birth weight and infant mortality. Of all
low birth weight babies born to single mothers in the State of
Hawai`i, 44 percent were Native Hawaiians.
In 1996, Native Hawaiian fetal mortality rates
comprised 15 percent of all fetal deaths for the State of
Hawai`i. 32 percent of all fetal deaths occurring in mothers
under the age of eighteen years were Native Hawaiians, and for
mothers eighteen through twenty-four years, 28 percent were
Native Hawaiians.
Education
In 1981, the Senate instructed the Office of Education to
submit to Congress a comprehensive report on Native Hawaiian
education. The report, entitled the ``Native Hawaiian
Educational Assessment Project,'' was released in 1983 and
documented that Native Hawaiians scored below parity with
regard to national norms on standardized achievements tests,
were disproportionately represented in many negative social and
physical statistics indicative of special educational needs,
and had educational needs that were related to their unique
cultural situation, such as different learning styles and low
self-image.
In recognition of the educational needs of native
Hawaiians, the Congress in 1988 enacted title IV of the
Augustus F. Hawkins-Robert T. Stafford Elementary and Secondary
School Improvement Amendments of 1988 (102 Stat. 130) to
authorize and develop supplemental educational programs to
benefit Native Hawaiians.
In 1993, the Kamehameha Schools Bishop Estate released a
ten-year update of findings for the Native Hawaiian Educational
Assessment Project, finding that despite the successes of the
programs established under title IV of the Augustus F. Hawkins-
Robert T. Stafford Elementary and Secondary School Improvement
Amendments of 1988, many of the same educational needs still
existed for Native Hawaiians. Subsequent reports by the
Kamehameha Schools Bishop Estate and other organizations have
generally confirmed those findings. For example--
(A) educational risk factors continue to start even
before birth for many Native Hawaiian children,
including--
(i) late or no prenatal care;
(ii) high rates of births by Native Hawaiian
women who are unmarried; and
(iii) high rates of births to teenage
parents;
(B) Native Hawaiian students continue to begin their
school experience lagging behind other students in
terms of readiness factors such as vocabulary test
scores;
(C) Native Hawaiian students continue to score below
national norms on standardized education achievement
tests at all grade levels;
(D) both public and private schools continue to show
a pattern of lower percentages of Native Hawaiian
students in the uppermost achievement levels and in
gifted and talented programs;
(E) Native Hawaiian students continue to be over
represented among students qualifying for special
education programs provided to students with learning
disabilities, mild mental retardation, emotional
impairment, and other such disabilities;
(F) Native Hawaiians continue to be under represented
in institutions of higher education and among adults
who have completed 4 or more years of college;
(G) Native Hawaiians continue to be
disproportionately represented in many negative social
and physical statistics, indicative of special
educational needs, as demonstrated by the fact that--
(i) Native Hawaiian students are more likely
to be retained in grade level and to be
excessively absent in secondary school;
(ii) Native Hawaiian students are the highest
users of drugs and alcohol in the State of
Hawai`i; and
(iii) Native Hawaiian children continue to be
disproportionately victimized by child abuse
and neglect; and
(H) Native Hawaiians now comprise over 23 percent of
the students served by the State of Hawai`i Department
of Education, and there are and will continue to be
geographically rural, isolated areas with a high Native
Hawaiian population density.
In the 1998 National Assessment of Educational progress,
Native Hawaiian fourth-graders ranked thirty-ninth among groups
of students from thirty-nine States and the District of
Columbia in reading. Given that Native Hawaiian students rank
among the lowest groups of students nationally in reading, and
that Native Hawaiian students rank the lowest among Hawai`i
students in reading, it is imperative that greater focus be
placed on beginning reading and early education and literacy in
Hawai`i.
S. 746
S. 746 was introduced on April 6, 2001, by Senator Daniel
Akaka, for himself and Senator Daniel Inouye, and was referred
to the Committee on Indian Affairs. A House companion measure,
H.R. 617, was introduced in the House of Representatives by
Representative Neil Abercrombie, for himself and
Representatives Patsy Mink, Eni Faleomavaega, James Hansen,
Dale Kildee, Nick Rahall, and Don Young, and was referred to
the Committee on Resources.
In the 106th session of the Congress, a bill which was
similar in purpose to S. 746, S. 2899, was introduced by
Senator Akaka, for himself and Senator Inouye, and was referred
to the Committee on Indian Affairs. A House companion measure
to S. 2899, H.R. 4904, was introduced in the House of
Representatives in the 106th session of the Congress. In
addition to the provisions now contained in S. 746 and H.R.
617, both bills that were introduced in the 106th Congress
addressed a specific and detailed process for the
reorganization of a Native Hawaiian government, in a manner
similar to that addressed in the Indian Reorganization Act of
1934.
For instance, the bills provided for the development of a
roll of those Native Hawaiians who wished to be involved in the
organization of a Native Hawaiian government and the
certification of that roll by the Secretary of the Interior.
Secondly, the bill provided authority for the Secretary to
conduct an election for a Native Hawaiian Interim Governing
Council that would be charged with the development of organic
governing documents. Once the organic governing documents were
finalized, the bills provided authority for the Secretary to
conduct a referendum for the adoption of the organic governing
documents, and thereafter, authority for the Secretary to
conduct an election for the election of officers to the Native
Hawaiian government.
Five days of hearings were held on S. 2899 and H.R. 4904 in
joint hearings of the House Resources Committee and the Senate
Indian Affairs Committee in Hawai`i from Monday, August 28,
2000 through Friday, September 1, 2000. An additional hearing
on S. 2899 was held in Washington, D.C. on September 13, 2000.
S. 2899 was ordered favorably reported to the full Senate
by the Senate Committee on Indian Affairs on September 13,
2000. 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.
The findings of S. 746 focus on the history of Native
Hawaiians and the United States policy as it relates to Native
Hawaiians, including the enactment of over 160 public laws to
address the conditions of Native Hawaiians. S. 746 provides a
process for the recognition of a Native Hawaiian government by
the United States for purposes of carrying on a government-to-
government relationship.
Native Hawaiians are actively engaged in a process of
reorganizing a Native Hawaiian government. Upon the
ratification of the organic governing documents and the
election of officers to the Native Hawaiian government, the
governing documents are to be submitted to the Secretary of the
Interior for certification that they are consistent with
Federal law and the special trust relationship between the
United States and native people. The Secretary is also
authorized to certify that the governing documents provide for
the protection of the civil rights of the citizens of the
Native Hawaiian government and any others who would come within
the jurisdiction of the government. Further, the Secretary is
to certify that the State of Hawai`i supports the recognition
by the United States of a Native Hawaiian government for
purposes of entering into a government-to-government
relationship. Resolutions of support for legislation which
provides for the Federal recognition of a Native Hawaiian
government have been enacted by the Hawai`i state legislature
in the several sessions of the legislature.\91\ Once the
Secretary has made these certifications, the bill provides
authority for the United States' recognition of the Native
Hawaiian government. Upon recognition, the definition of
``Native Hawaiian'' for purposes of Federal law, would be as
provided for in the organic governing documents of the Native
Hawaiian government.
---------------------------------------------------------------------------
\91\ The Hawai`i State Senate and House of Representatives each
passed resolutions in 2000 and 2001 supporting the recognition of an
official political relationship between the United States government
and the Native Hawaiian people, as well as the need to develop a
government-to-government relationship between a native Hawaiian nation
and he United States. See H. Con. Res. 41 (2000); S. Res. 45 (2000); H.
Con. Res. 23 (2001); S. Res. 97 (2001) (reprinted in Appendix A
hereto).
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S. 746 also provides authority for the establishment of a
United States Office of Native Hawaiian Relations within the
Office of the Secretary of the U.S. Department of the Interior.
The Office is to be the principal entity through which the
United States will carry on relations with the Native Hawaiian
people until a Native Hawaiian government is formed. The Office
would also serve as the primary agent of ongoing efforts to
effect the reconciliation that is authorized in the Apology
Resolution. The Office would also serve as lead agency for the
work of a Native Hawaiian Interagency task Force that is
authorized to be established in S. 746.
indian and native hawaiian program funding
As referenced above, since 1910, the Congress has enacted
over 160 statutes designed to address the conditions of Native
Hawaiians. Appropriations for Native Hawaiian programs have
always been separately secured and have had no impact on
program funding for American Indians or Alaska Natives.
Consistent with this practice, S. 746 provides authority for a
separate and distinct appropriation that does not impact in any
way on existing authorizations for American Indian and Alaska
Native programs. It is also important to note that Federal
programs addressing health care, education, job training,
graves protection, arts and culture, and language preservation
for Native Hawaiians are already in place. Accordingly, new
impacts on the Federal budget that might otherwise be
anticipated with the Federal recognition of a native government
will not be forthcoming as a result of the recognition of a
Native Hawaiian government. S. 746 does authorize
appropriations for the establishment of the U.S. Office of
Native Hawaiian Relations within the Department of the
Interior, but the costs associated with these activities are
not expected to be significant.
gaming
Some have questioned whether the reorganization of a Native
Hawaiian government might have implications for gaming that is
conducted under the authority of the Indian Gaming Regulatory
Act.
The Act authorizes Indian tribal governments to conduct
gaming on Indian reservations and lands held in trust by the
United States for Indian tribes and over which a tribal
government exercises jurisdiction. The scope of gaming that can
be conducted under the Act is determined by the law of the
state in which the Indian lands are located. The U.S. Supreme
Court has held that state laws which criminally prohibit
certain forms of gaming apply on Indian lands.
There are no Indian tribes in the State of Hawai`i, no
Indian reservations or Indian lands, nor are there any Indian
reservations or Indian lands over which a tribal government
exercises jurisdiction. Hawai`i is one of only two states in
the Union (the other is Utah) that criminally prohibit all
forms of gaming. Accordingly, a reorganized Native Hawaiian
government could not conduct any form of gaming in the State of
Hawai`i under the authority of the Indian Gaming Regulatory
Act.
In an effort to address concerns about the application of
the Indian Gaming Regulatory Act, S. 746 provides that nothing
in S. 746 is to be construed as an authorization for the Native
Hawaiian government to conduct gaming activities under the
authority of the Indian Gaming Regulatory Act.
explanation of amendments
As referenced above, in the 106th session of the Congress,
S. 2899, the bill which was the predecessor bill to s. 746, was
the subject of six hearings, five in Hawai`i and one in
Washington, D.C. Following the customary practice of Senate
committees, the bill was revised based on testimony received
from those hearings and was introduced as S. 746.
In section five of S. 746, the Committee responded to
testimony received on S. 2899 advocating an administratively
more feasible process for the conduct of the work of the
Interagency Coordinating Group by designating the Interior
Department as the single lead agency for the Interagency
Coordinating Group.
In S. 2899, a detailed process for the reorganization of a
Native Hawaiian government was set forth in section 7 of the
bill. Testimony received by the Committee indicated that it was
the view of most Native Hawaiians that the process for the
reorganization of a Native Hawaiian government should be
determined by the Native Hawaiian people, consistent with the
Federal policy of self-determination and self-governance for
the native peoples of the United States. Accordingly, the
detailed process for the reorganization of a Native Hawaiian
government was omitted from S. 746.
Further, because the legislature of the State of Hawai`i
has consistently adopted resolutions supporting the recognition
by the United States of a Native Hawaiian governing entity, the
Committee included a provision which is intended only to
provide the necessary assurances to the United States that the
State of Hawai`i supports Federal recognition of a Native
Hawaiian government. The Committee does not intend that the
State of Hawai`i have any role in determining the Native
Hawaiian governing entity that is to be recognized by the
United States.
Although, as stated above, the Committee does not believe
that the Indian Gaming Regulatory Act has any application in
the State of Hawai`i, language was added to S. 746 to clarify
the application of the Act. In addition, to address concerns
that the recognition of a Native Hawaiian government might in
some way make Native Hawaiians eligible for the programs and
services provided by the Bureau of Indian Affairs to American
Indians and Alaska Natives, the Committee has added language to
make clear that nothing in the Act is to be construed as an
authorization for eligibility to participate in any programs
and services provided by the Bureau of Indian Affairs for any
persons who are not otherwise eligible for such programs or
services.
S. 2899 also contained a section ten, which provided that
``Nothing in this Act is intended to serve as a settlement of
any claims against the United States, or to affect the rights
of the Native Hawaiian people under international law.'' While
S. 746 retains the language of S. 2899 regarding the fact that
nothing in the Act is intended to serve as a settlement of any
claims against the United States, the language addressing the
rights of the Native Hawaiian people under international law
was removed based upon a legal assessment that the laws of the
United States do not affect the rights of any American citizens
under international law.
section-by-section analysis
Section 1. Findings
This section sets forth the Congress' findings. Findings
(1) through (4) reflect Congress' recognition of Native
Hawaiians as the native people of the United States and the
State of Hawai`i. Findings (5) through (7) reflect Congress'
determination of the need to address conditions of Native
Hawaiians through the Hawaiian Homes Commission Act of 1920.
Findings (8) and (9) reflect Congress' establishment of the
ceded lands trust as a condition of statehood for the State of
Hawai`i. Findings (9) through (11) reflect the importance of
the Hawaiian Home Lands and Ceded Lands to Native Hawaiians as
a foundation for the Native Hawaiian community for the survival
of the Native Hawaiian people. Findings (12) through (14)
reflect the effect of the Apology Resolution. Findings (15)
through (19) reflect the Native Hawaiian community as a
``distinctly'' native community. Finding (20) reflects the
legal position of the United States before the U.S. Supreme
Court in the case of Rice v. Cayetano. Findings (21) and (22)
reaffirm the special trust relationship between the Native
Hawaiian people and the United States.
Section 2. Definitions
This section sets forth definitions of terms used in the
bill. Defined terms are Aboriginal, Indigenous, Native People;
Adult Members; Apology Resolution; Ceded Lands; Commission;
Indigenous, Native People; Native Hawaiian; Native Hawaiian
Government; Native Hawaiian Interim Governing Council; Roll;
Secretary; and Task Force.
Native Hawaiian--It is the intent of the Committee that the
definition of Native Hawaiian, for the purposes of membership
in the government, be determined by Native Hawaiians. The
Committee recognizes the longstanding issues surrounding the
definition of ``Native Hawaiian'' and acknowledges the Native
Hawaiian community's desire to address the definition of Native
Hawaiian. The legislation provides that once the Native
Hawaiian government addresses this issue in its organic
governing documents, that the definition established by the
Native Hawaiian government will serve as the definition of
Native Hawaiian for purposes of this Federal law.
Ceded Lands--The term ``ceded lands'' is intended to
include submerged lands and natural resources.
Section 3. The United States policy and purpose
This section reaffirms that Native Hawaiians are an
aboriginal, indigenous, native people with whom the United
States has a trust relationship. It also affirms that Native
Hawaiians have the right to self-determination and that it is
Congress' intent to provide a process for the reorganization of
a Native Hawaiian government and for Federal recognition of the
Native Hawaiian government for purposes of continuing a
government-to-government relationship.
Section 4. Establishment of the United States Office for Native
Hawaiian Relations
This provision provides authority for the establishment of
the United States Office for Native Hawaiian Relations within
the Office of the Secretary of the Department of Interior. This
Office is charged with: (1) effectuating and coordinating the
special trust relationship between the Native Hawaiian people
and the United States; (2) continuing the process of
reconciliation with the Native Hawaiian people, and upon
recognition of the Native Hawaiian governing entity by the
United States, continuing the process of reconciliation with
the Native Hawaiian governing entity; (3) fully integrating the
principle and practice of meaningful, regular, and appropriate
consultation with the Native Hawaiian people and the Native
Hawaiian governing entity prior to taking any actions that may
have the potential to significantly affect Native Hawaiian
resources, rights, or lands; (4) consulting with the Native
Hawaiian Interagency Coordinating Group, other Federal
agencies, and with relevant agencies of the State of Hawai`i on
policies, practices, and proposed actions affecting Native
Hawaiian resources, rights, or lands; and (5) preparing and
submitting to the Senate Committee on Indian Affairs, Senate
Committee on Energy and Natural Resources, and House Resources
Committee on annual report detailing the Interagency
Coordinating Group that are undertaken with respect to the
continuing process of reconciliation and to effect meaningful
consultation with the Native Hawaiian governing entity and
providing recommendations for any necessary changes to existing
Federal statutes or regulations promulgated under the authority
of Federal law.
It is the intent of the Committee that the United States
Office for Native Hawaiian Relations serve as a liaison between
the Native Hawaiian people and the United States for the
purposes of continuing the reconciliation process and ensuring
proper consultation with the Native Hawaiian people for any
Federal policy impacting Native Hawaiians. The Committee does
not intend for the United States Office for Native Hawaiian
Relations to assume the responsibility or authority for any of
the Federal programs established to address the conditions of
Native Hawaiians. All Federal programs established and
administered by Federal agencies will remain with those
agencies.
Section 5. Native Hawaiian Interagency Coordinating Group
This section authorizes the establishment of an Interagency
Coordinating Group composed of officials from each Federal
agency, to be designated by the President, and a representative
from the U.S. Office of Native Hawaiian Relations. The
Department of Interior is to serve as the lead agency of the
Coordinating Group. The primary responsibility of the
Interagency Coordinating Group is to coordinate Federal
policies or acts that affect Native Hawaiians or impact Native
Hawaiian resources, rights, or lands. The Coordinating Group is
also charged with assuring that each Federal agency develops a
Native Hawaiian consultation policy and participates in the
development of the report to Congress authorized in section 4.
Section 6. Process for the Federal recognition of the Native Hawaiian
governing entity
Subsection (a) sets forth the recognition by the United
States that the native Hawaiian people have the right to
organize for their common welfare and to adopt appropriate
organic governing documents.
It is anticipated that in the process of reorganizing a
Native Hawaiian government, those adult members of the Native
Hawaiian community who wish to participate in the
reorganization of a Native Hawaiian government would prepare a
roll for the purpose of organizing a Native Hawaiian Interim
Governing Council. The roll would likely include the names of
the adult members of the Native Hawaiian community who wish to
voluntarily become citizens of a Native Hawaiian government and
who are the lineal descendants of the aboriginal, indigenous,
native people who resided in the islands that now comprise the
State of Hawai'i on or before January 1, 1893, and who occupied
and exercised sovereignty in the Hawaiian archipelago,
including all Native Hawaiians who were eligible in 1921 for
the programs authorized by the Hawaiian Homes Commission Act
and their lineal descendants. The roll might also include the
names of the children of the adult members who wish to
participate in the reorganization of a Native Hawaiian
government. Participation in the reorganization of the
government, however, would likely be limited to the adult
members listed on the roll. It is the intent of the Committee
that the determination of who is a Native Hawaiian be resolved
by Native Hawaiians.
It is also anticipated though not required by Federal law,
that the adult members on the roll will develop the criteria
for candidates and the structure of the Interim Governing
Council. The Committee anticipates that the adult members may
consider a number of methods of representation which could
include representation by island, district, ahupua'a, family,
or any other form.
The Council might be authorized to represent those on the
roll in implementing the Act. The Council could be authorized
to enter into contracts or grants to carry out its activities,
to assist in the conduct of a referendum on the Native Hawaiian
government's form, powers, and the proposed organic governing
documents. Thereafter, the Council might be authorized to
conduct an election for the purpose of ratifying the organic
governing documents and, upon ratification of the organic
governing documents, to elect the officers of a Native Hawaiian
governing entity.
Subsection (b) sets forth the process for securing Federal
recognition. Subsection (1) provides that following the
organization of the Native Hawaiian governing entity, the
adoption of organic governing documents, and the election of
officers of the Native Hawaiian governing entity, the duly
elected officers of the Native Hawaiian governing entity are to
submit the organic governing documents to the Secretary of the
Department of the Interior for certification. Subsection (2)
provides that the Secretary shall make the following
certifications within 90 days of the date that the duly elected
officers of the Native Hawaiian governing entity submit the
organic governing documents to the Secretary:
That the organic governing documents
establish criteria for citizenship in the Native
Hawaiian governing entity;
That the organic governing documents were
adopted by a majority of the citizens of the Native
Hawaiian governing entity;
That the organic governing documents provide
for the exercise of governmental authorities by the
Native Hawaiian governing entity;
That the organic governing documents provide
authority for the Native Hawaiian governing entity to
negotiate with Federal, State, and local governments,
and other entities;
That the organic governing documents prevent
the sale, disposition, lease, or encumbrance of lands,
interests in lands, or other assets of the Native
Hawaiian governing entity without the consent of the
Native Hawaiian governing entity;
That the organic governing documents provide
for the protection of the civil rights of the citizens
of the Native Hawaiian governing entity and all persons
subject to the authority of the Native Hawaiian
governing entity, and ensure that he Native Hawaiian
governing entity exercises its authority consistent
with the requirements of section 202 of the Act of
April 11, 1968, (25 U.S.C. Sec. 1302); and
That the organic governing documents are
consistent with applicable Federal law and the special
trust relationship between the United States and the
indigenous native people of the United States.
If the Secretary determines that any provision of the
organic governing documents does not comply with applicable
Federal law, the Secretary shall resubmit the organic governing
documents to the duly elected officers of the Native Hawaiian
governing entity along with a justification for each of the
Secretary's findings as to why he believes the provisions are
not consistent with such law. The Native Hawaiian governing
entity is authorized to amend the organic governing documents
to ensure their compliance with applicable Federal law. After
the organic governing documents are amended, the Native
Hawaiian governing entity may resubmit the organic governing
documents to the Secretary for certification.
The certifications shall be deemed to have been made if the
Secretary has not acted within 90 days of the date that the
duly elected officers of the Native Hawaiian governing entity
have submitted the organic governing documents of the Native
Hawaiian governing entity to the Secretary.
Upon election of the Native Hawaiian governing entity's
officers and the certifications (or deemed certifications) by
the Secretary, Federal recognition is extended to the Native
Hawaiian governing entity.
Subsection (3) provides that upon election of the Native
Hawaiian government officers and the certifications (or deemed
certifications) by the Secretary, Federal recognition is
extended to the Native Hawaiian government.
Section 7. Authorization of appropriations
This section authorizes the appropriation of such sums as
may be necessary to carry out the activities authorized.
Section 8. Reaffirmation of delegation of Federal authority;
negotiations
This section reaffirms the United States' delegation of
authority to the State of Hawai`i in the Admissions Act to
address the conditions of Native Hawaiians. Upon Federal
recognition of the Native Hawaiian government, the United
States is authorized to negotiate with the State of Hawai`i and
the Native Hawaiian government regarding the transfer to the
Native Hawaiian government of lands, resources and assets
dedicated to Native Hawaiian use under existing law. It is the
Committee's intent that the reference to ``lands, resources and
assets dedicated to Native Hawaiian use'' include, but not be
limited to lands set aside under the Hawaiian Homes Commission
Act and ceded lands as defined in section 2. The Committee
believes that if an inventory of the ceded lands is required to
facilitate negotiations addressing ceded lands, then such an
inventory should be conducted.
Section 9. Applicability of certain Federal laws
This section provides that nothing is this Act shall be
construed as an authorization for the Native Hawaiian governing
entity to conduct gaming activities under the authority of the
Indian Gaming Regulatory Act or for eligibility to participate
in any programs and services provided by the Bureau of Indian
Affairs.
Section 10. Severability clause
This section provides that should any section or provision
of this Act be deemed invalid, the remaining sections,
provisions, and amendments shall continue in full force and
effect.
legislative history
S. 746 was introduced on April 6, 2001, by Senator Daniel
Akaka, for himself and Senator Daniel Inouye, and was referred
to the Committee on Indian Affairs. A House companion measure,
H.R. 617, was introduced in the House of Representatives by
Representative Neil Abercrombie, for himself and
Representatives Patsy Mink, Eni Faleomavaega, James Hansen,
Dale Kildee, Nick Rahall, and Don Young, and was referred to
the Committee on Resources.
In the 106th session of the Congress, a bill which was
similar in purpose to S. 746, S. 2899, was introduced by
Senator Akaka, for himself and Senator Inouye, and was referred
to the Committee on Indian Affairs. A House companion measure
to S. 2899, H.R. 4904, was introduced in the House of
Representatives in the 106th session of the Congress.
Five days of hearings were held on S. 2899 and H.R. 4904 in
joint hearing of the House Resources Committee and the Senate
Indian Affairs Committee in Hawai`i from Monday, August 28th,
2000 through Friday, September 1st, 2000. An additional hearing
on S. 2899 was held in Washington, D.C. on September 13, 2000.
S. 2899 was ordered favorably reported to the full Senate
by the Senate Committee on Indian Affairs on September 13,
2000. 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.
S. 746 was ordered favorably reported to the full Senate by
the Committee on Indian Affairs on July 24, 2001. H.R. 617 was
ordered favorably reported to the full House of Representatives
by the House Committee on Resources on May 16, 2001.
committee recommendation and tabulation of vote
The Committee on Indian Affairs, on July 24, 2001, in an
open business meeting, recommended that the Senate pass S. 746,
a bill expressing the policy of the United States regarding the
United States relationship with Native Hawaiians and to provide
a process for the recognition by the United States of the
Native Hawaiian governing entity, and for other purposes.
cost and budgetary considerations
The cost estimate of the Congressional Budget Office on S.
746 is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 27, 2001.
Hon. Daniel K. Inouye,
Chairman, Committee on Indian Affairs,
U.S. Senate Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 746, a bill
expressing the policy of the United States regarding the United
States' relationship with Native Hawaiians and to provide a
process for the reorganization by the United States of the
Native Hawaiian governing entity, and for other purposes.
If you wish further details on this estimate, we will be
pleased to provide them. the CBO staff contacts are Lanette J.
Walker (for federal costs), and Majorie Miller (for the impact
on state, local, and tribal governments).
Sincerely,
Steven Lieberman
(For Dan L. Crippen, Director).
Enclosure.
S. 746--A bill expressing the policy of the United States regarding the
United States' relationship with Native Hawaiians and to
provide a process for the reorganization by the United States
of the Native Hawaiian governing entity, and for other purposes
S. 746 would establish a process for a Native Hawaiian
government to be constituted and recognized by the federal
government. CBO estimates that implementing S. 746 would have
no significant impact on the federal budget. The bill would not
affect direct spending or receipts, so pay-as-you-go procedures
would not apply. S. 746 contains no intergovernmental or
private-sector mandates as defined in the Unfunded Mandates
Reform Act and would impose no costs on state, local, or tribal
governments. Enacting this legislation could lead to the
creation of a new government to represent native Hawaiians. The
transfer of any lands or other assets to this new government,
including lands now controlled by the state of Hawaii, would be
the subject of future negotiations. Similarly, federal payments
to native Hawaiians following recognition of a Native Hawaiian
government would depend on future legislation.
The bill would establish the United States Office for
Native Hawaiian Affairs within the Department of the Interior
(DOI) to coordinate services to native Hawaiians. In addition,
S. 746 would establish the Native Hawaiian Interagency
Coordinating Group to coordinate federal programs and policies
that affect native Hawaiians. Based on information from DOI,
CBO expects that the agency would require up to five additional
employees to implement the bill. Therefore, CBO estimates that
implementing S. 746 would cost less than $500,000 a year,
subject to the availability of appropriated funds.
On May 23, 2001, CBO transmitted a cost estimate for H.R.
617, a similar bill that was ordered reported by the House
Committee on Resources on May 16, 2001. The two cost estimates
are identical.
The CBO staff contacts for this estimate are Lanette J.
Walker (for federal costs), and Marjorie Miller (for the impact
on state, local, and tribal governments). This estimate was
approved by Peter H. Fontaine, Deputy Assistant Director for
Budget Analysis.
EXECUTIVE COMMUNICATIONS
Although the Committee requested the views of the
Administration on S. 746 in March of 2001, the Committee has
not received a communication from the Administration on S. 746.
REGULATORY AND PAPERWORK IMPACT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate require each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 746 will
have a minimal impact on regulatory or paperwork requirements.
CHANGES IN EXISTING LAW
The provisions of S. 746 do not effect any change in
existing law.
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APPENDIX A
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