[Senate Report 106-424]
[From the U.S. Government Publishing Office]
Calendar No. 840
106th Congress Report
SENATE
2d Session 106-424
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TO EXPRESS THE POLICY OF THE UNITED STATES REGARDING THE UNITED STATES'
RELATIONSHIP WITH NATIVE HAWAIIANS, AND FOR OTHER PURPOSES
_______
September 27 (legislative day, September 22), 2000.--Ordered to be
printed
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Mr. Campbell, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 2899]
The Committee on Indian Affairs, to which was referred the
bill (S. 2899) to express the policy of the United States
regarding the United States' relationship with Native
Hawaiians, and for other purposes, having considered the same,
reports favorably thereon with an amendment in the nature of a
substitute and recommends that the bill as amended do pass.
Purpose and Background
The purpose of S. 2899 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, with the assistance of the United
States Minister and U.S. marines, the government of the Kingdom
of Hawaii was overthrown. One hundred years later, a resolution
extending an apology on behalf of the Untied States to Native
Hawaiians of 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). The Apology Resolution acknowledges
that the overthrow of the Kingdom of Hawaii occurred with the
active participation of agents and citizens of the United
States an 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 Hawaii and culminating in two days of open hearings.
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
draft report, entitled ``From Mauka to Makai: The River of
Justice Must Flow Freely,'' was issued by the two departments
on August 23, 2000. A 30-day comment period on the report
expires on September 23, 2000. The principal recommendation
contained in the draft 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.
S. 2899 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 an the
indigenous, native people of the United States, S. 2899
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
With 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 Hawaii
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 Hawaii upon its admission into the Union of States. The
dedication of these revenues reflects the provisions of the
1959 Hawaii Admissions Act, which provides that the ceded lands
and the revenues derived therefrom should be held by the State
of Hawaii 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, 120 S.Ct.
1044, 145 L.Ed.2d 1007 (2000). The Supreme Court held that
because the Office of Hawaiian Affairs is an agency of the
State of Hawaii that is 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 Hawaii who are otherwise eligible to vote in statewide
elections.
The nine Native Hawaiian trustees of the Office of Hawaiian
Affairs have subsequently resigned their positions, and the
Governor of the State of Hawaii has appointed interim trustees
to fill the positions vacated by the Native Hawaiian trustees,
until new trustees can be elected in elections scheduled to be
held on November 7, 2000. By order of the U.S. District Court
for the District of Hawaii, 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 Hawaii may
vote for the 97 candidates that have registered to run for the
mine trustee positions.
The native people of Hawaii have thus been divested of the
mechanism that was established under the Hawaii State
Constitution that, since 1978, has enable them to give
expression to their rights as indigenous, native people of the
United States to self-determination and self-governance. S.
2899 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, 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
Hawaii 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
Hawaii. [Haw.Const. Art. XVI, Sec. 7.] In addition, the State
agreed to the imposition of a public trust upon all of the
lands ceded to the State upon admission. [Hawaii Admission Act,
Pub. L. No. 8603, Sec. 5(f), 73 Stat. 4, 5 (1959)] 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''. Id. 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
carried out. Id. Sec. Sec. 4 & 5 (f).
In 1978, the citizens of the State of Hawaii 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 Hawaii.
Hawaii'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 of
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 rootsfrom 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 here called 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
``discoverers'' 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 people's
inherent sovereignty informed the course of the newcomers'
dealings with them. Spanish law of the 1500's and 1600s
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 the
other native people of Alaska, and later, the indigenous,
native people of Hawaii.
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 Foutheenth and Fifteenth Amendments were
designed to address, the Supreme Court had recognized the
unique status of America's native people under the Constitution
and laws of the United States.
Hawaiians are the indigenous or aboriginal people of the
island group that is today the State of Hawaii. Hawaii was
originally settled by voyagers from central and eastern
Polynesia, traveling immense distances in double-hulled
voyaging canoes and arriving in Hawaii perhaps as early as 300
A.D. The originally Hawaiians were thus part of the Polynesian
family of peoples, which includes the Maori, Samoans, Tongans,
Tahitians, Cook Islanders, Marquesans, and Eastern 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 Hawaii 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 1510.
At the pinnacle of the political, economic and social
structure of each 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, ``Hawaii 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'as into `ilis, 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. Dhien, ``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. The mo'i's or king's authority
was derived from the gods, and he was a trustee of the land and
other natural resources of the island. Id. Chiefs owned
militaryservice, 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, ``Hawaii: 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 meles (songs)
of various kinds, genealogies and honorific stories * * * [much
of which] was used as an accompaniment to the hula.'' 1
Kuykendall, surpra at 10-11. Hawaiians also has 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 W. Van Dyke, The Political
Status of the Native Hawaiian People, 17 Yale L. & Pol'y Rev.
95, 95 (1998) (citing, e.g., Joseph Fehrer, ``Hawaii: A
Pictorial History'' 36-132 (1969)).
The communal nature of the economy and the caste structure
of the society resulted in values striking 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.
Hawaii 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 Hawaii'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 Hawaii on the Eve of Western Contact'' 59 (1989).
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Hawaii was ``discovered'' by the west in 1778, when the
first haole or white foreigner, English sea captain James Cook,
landed. Because he arrived during a festival associated with
Lono in a ship whose profile resemble Lono's symbol, he was
greeted as the long-departed god. Other western ships soon
followed on journeys of exploration or trade. E.S. & Elizabeth
G. handy, ``Native Painters in Old Hawaii'' 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 Hawaii. King Kamehameha I
won control of the Big Island, Hawaii, and then successfully
invaded Maui, Lana`i, and Molika`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 Hawaiian population. By 1866, only 57,000 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 Hawaiians kapus
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 kapus were abolished soon
after Kamehameha I died. See Fuchs, supra at 8-9. Christianity,
principally in the person of American missionaries, quickly
flowed into the breach. Christianity condemned not only the
native religion, but the worldview, 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 Hawaii'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 Hawaii'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 haole 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 Hawaii, bolstered by Western warships which
intervened at critical times, exerted enormous political
influence''). These influential haoles sought to limit the
absolute power of the Hawaiian king over their legal rights and
to implement western 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 Kyukendall, supra at 206-
26. In 1840, 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 of
1848; the beginning of the division of Hawaii's communal land
which led to the transfer of substantial amounts of land to
western hands.
In the 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 Hawaii (``Government Lands''). All
land remained subject to the rights of native tenants. In 1850,
after the division was accomplished, an act was passed
permitting aliens to purchase land in fee simple. The
expectation was that commoners would receive a substantial
portion of the distribution 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 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. Mackenzie, supra at 8.
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Soon after the Mahele, a dramatic concentration of land
ownership in haole plantations, estates, and ranches occurred.
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 Hawaiian
people. The communal land system of subsistence farming and
fishing was at an end. Large land estates owned by haoles
controlled virtually all arable land. Hawaiians 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 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 Hawaii, 1919 Senate Journal 25-26). Hawaiians developed a
debilitating sense of inferiority, and descended to the bottom
tier of the economy and the society of Hawaii.
The mutual interests of Americans living in Hawaii and the
United States became increasingly clear as the 19th century
progressed. American merchants and planters in Hawaii wanted
access to mainland markets and protection from European and
Asian domination. The United States developed a military and
economic interest in placing Hawaii within its sphere of
influence. In 1826, the United States and Hawaii 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 Hawaii in 1842) and the French (who forced an unfavorable
treaty on Hawaii 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 Hawaii 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 Hawaii
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 Hawaii and virtually all tariffs that Hawaii had
placed on American products. Critically, it also prohibited
Hawaii from giving political, economic, or territorial
preferences to any other foreign power. 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 Hawaii'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 by haole
plantations.
Matters came to a head in 1887, when King Kalakaua
appointed an anti-haole prime minister. The prime minister,
with the strong support of the Hawaiian people, opposed
granting a base at Pearl 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
all-haole 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 haoles took control of the legislature. A suspected
native revolt in favor of the King's younger sister, Princess
Lili`uokalani, and new constitution were quelled when the
American minister summoned Marines from an American warship at
Honolulu. Haoles 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 Nobles 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
haoles 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 American Minister in Hawaii, 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 Hawaii are unique
because``Hawaii has been all the time under a virtual
suzerainty of the United States.'' S. Rep. No. 53-277, at 21 (1894)
(emphasis added).
As a result of this impasse, the United States government
neither restored the Queen nor annexed Hawaii. 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
Hawaii, and the United States gave his government prompt
recognition.\3\
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\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.
``Native Hawaiian Rights Handbook 13'' (Melody K. MacKenzie ed., 1991);
Lawrence H. Fuchs, ``Hawai`i Pono: An Ethnic and Political History''
34-35 (1961).
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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 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 needed only a 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 Hawaii.'' 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 Hawaii at that time. See
Jon M. Van Dyke, The Political Status of the Native Hawaiian People, 17
Yale L. & Pol'y Rev. 95, 103 & n.48 (1998) (citing Dan Nakaso, Anti-
Annexation Petition Rings Clear, Honolulu Advertiser, Aug. 5, 1998, at
1).
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On August 12, 1898, the Republic of Hawaii ceded
sovereignty and conveyed title to its public lands, including
the Government and Crown Lands, to the United States. 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 Hawaii's territorial government. And, in 1959,
Congress admitted Hawaii 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 Hawaiian people and a trust obligation with respect to the
public lands of Hawaii.\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 public 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, too, required the 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).
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The special or trust relationship between the 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).
In 1826 it was estimated that there were 142,650 full-
blooded Hawaiians in the Hawaiian Islands. By 1919 their
numbers had been reduced to 22,600. Historically, the
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`a.
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
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 Hawaii 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 thetrust 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 Hawaii, 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 own
homes . . . The Hawaiian people are a farming people
and fishermen, out of door people, and when they were
frozen out of their lands and driven into the cities
they had to live in the cheapest places, tenements.
That is one of the 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
House Committee on the Territories' report to the full U.S. House of
Representatives.
Prince Jonah Kuhio Kalaniana`ole (``Prince Kuhio''), the
Territory's sole delegate to Congress, testified before the
full U.S. House of Representatives: ``The Hawaiian race is
passing. And if conditions continue to exist as they do today,
this splendid race of people, my people, will pass from the
face of the earth.'' 8 Secretary of Interior Lane
attributed the declining population to health problems like
those faced by the ``Indian in the United States'' and
concluded that the Nation must provide similar remedies.\9\
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\8\ 59 Cong. Rec. 7453 (1920) (statement of Prince Jonah Kuhio
Kalanian`ole).
\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 Congress to enact the Hawaiian
Homes Commission Act on July 9, 1921. The Act sets aside
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, 1920, Sec. 203, 42 Stat. At 109. 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 has been
short-changed in prior land distribution schemes. Prince Kuhio
further testified before the U.S. House of Representatives that
Hawaiians had an equitable interest in the unregistered land
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 Hawaii. . .
. 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
your 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 twodecades 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 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 consists an express affirmation of the
United States' trust responsibility to the Hawaiian people.
Hawaiian Admission Act
As a condition of statehood, the Hawaii 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
Hawaii by which Hawaii 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 by 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.
Hawaii Admission Act, Sec. 4, 73 Stat. At 5 (emphasis added).
The lands granted to the State of Hawaii by
subsection (b) of this section and public lands
retained by the United States under subsections (c) and
(d) and later conveyed to the State under subsection
(e), together with the proceeds form the sale or other
disposition of any such lands and the income therefore,
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 Hawaiian, 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 provisions 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 States.
Id. Sec. 5(f), 73 Stat. At 6 (emphasis added).
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.
Rather, as the Federal and State courts have repeatedly held,
the United States retains the authority to bring an enforcement
action against the State or Hawaii for breach of section 5(f)
trust. Han, et al. v. United States, 45 F3d 333 (9th Cir.
1995); Pele Defense Fund v. Paty, 837 P.2d 1247 (1992).
Despite the overthrow and annexation of the Hawaiian
Nation, Hawaiian culture has survived, and the Hawaiian people
have a unique culture that continues today.
Love of the Land (aloha `aina)--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 effort 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 Historic Register, 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 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 Hawaii 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 Hawaii's historic
lands and has a long, documented history of cultural and natural
significance to the people of Hawaii. 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 of
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
Hawaii and the federal government recognize a sovereign Hawaiian
entity. Id. At Sec. 6K-9.
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Subsistence--Ancient 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 patters 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\ Hawaii law has always
guaranteed subsistence gathering rights to the people so they
may practice native customs and traditions.\13\
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\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
Hawaii'' 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 Hawaii. 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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Taro Cultivation (Kalo)--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, Hawaiians reclaimed and restored ancient taro
fields, and formed a statewide association of native planters,
`Onipa`a Na Hui Kalo.
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\14\ Lilikala Kame`elehiwa, ``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 the
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 Haloa, 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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Extended Family (`Ohana)--In the earliest era of Hawaiian
settlement, governance was a function of the family.\16\ For
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 Hawaii
courts. See, e.g., Leong v. Takasaki, 520 P.2d 758, 766 (Haw. 1976);
Estate of Emanuel S. Cunha, 414 P.2d 925, 928-129 (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), In
re: 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, indistinctly private ways, through `ohana lines.\18\
---------------------------------------------------------------------------
\18\ Davianna Pomaika`i McGregor, An Introduction to ``Hoa`aina''
and Their Rights, 30 Hawaiian Journal of History at 9 (1996).
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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.''
Human Remains (`Iwi)--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 Hawaiians. The State of
Hawaii has recognized the importance of protecting Hawaiian
burial sites, and established a Hawaiian Burial Council to
ensure the `iwi of Hawaiian ancestors are tread with proper
respect.\19\
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\19\ Haw. Rev. Stat. Sec. 6E-43.5 (1993). This provision requires
consultation with appropriate Hawaiian organizations, like Hui Malama I
Na Kupuna O Hawaii Nei. See http://www.pixi.com/huimalam.
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Sacred Places (Wahi Kapu)--Ancient Hawaiians also
recognized certain places as sacred, and took extraordinary
measures to prevent their desecration. A modern day example of
this concept is found at Mauna `Ala on the island of O`ahu,
where the remains of Hawaii'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.
Hawaiian Language (`Olelo Hawaii)--``I ka `olelo no ke ola;
i ka `olelo no ka make. With language tests life, with language
rests death.'' \20\ The Hawaiian language was banned from the
schools in 1896.\21\
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\20\ Ka`u: University of Hawaii Hawaiian Studies Task Force Report,
23 (Dec. 1986). These anti-Hawaiian language efforts, which 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 Hawaii 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) [hereinafter
Schutz]. Hawaiian language newspapers, which were the primary medium
for communication in Hawaii 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.
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During the republic and Territory, Hawaiian was strictly
forbidden anywhere within schoolyards 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\
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\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 ashame of their cultural
heritage and feel inferior to the haole American elite in Hawaii.'').
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The language was kept alive in rural Hawaiian families and
in the mele and oli (songs and chants) of native speakers.\23\
In 1978, the Hawaii 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 community
located on the isolated island of Ni`ihau, which was spared the
effects of the 1896 ban.\27\
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\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 note 23, 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 Hawaii 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.
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Conflict Resolution (Ho `oponopono) \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'' (1985).
---------------------------------------------------------------------------
Civic Association--Prior to Annexation, Native Hawaiians
were active participants in the political life of the Islands.
Politicla associations were organized to protest against the
Bayonet Constitution of 1887 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 Hawaii'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 Kalai`aina, 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, Kuykendall, supra note 5, vol. III, at 448; Noenoe K.
Silva, Kanaka Maoli Resistance to Annexation, 1 `O`iwi: A Native
Hawaiian Journal at 45 (1998).
\30\ Davianna Pomaika`i McGregor, `Aina Ho `opulapula: Hawaiian
Homesteading, 24 The Hawaiian Journal of History 1, 4-5 (1990).
---------------------------------------------------------------------------
Hawaiian Healing (La`au Lapa`au)--Quietly practiced over
the past two centuries following European contact, Hawaiian
medicine has always been an important alternative to Western
medical care. Today, it is 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
regiments of care.
---------------------------------------------------------------------------
\31\ Isabella Aiona Abbott, ``La`au Hawaii: 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. 11701, et seq.).
---------------------------------------------------------------------------
Hula Academies (Halau Hula)--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) (to be codified at Haw.
Rev. Stat. Chapter 5).
---------------------------------------------------------------------------
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 Hawaiians formed the
Polynesian Voyaging Society. The Society researched Polynesian
canoe-making and navigating traditions, and commissioned and
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 (the Hokule`a is currently
sailing to the tiny island of Rapa Nui--Easter Island).\35\ The
art of voyaging is alive and well in modern Hawaii, 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 Hawaiiloa 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 Hawaii 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.
---------------------------------------------------------------------------
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 significant actions of the United States as they
relate to the native people of Hawaii must be understood in the
context of the Federal policy towards America's other
indigenous, native people at the time of those actions.
In 1921, when the Hawaiian Homes Commission Act was enacted
into law, the prevailing Federal 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
wherewithall to pay the taxes on the land, found their lands
seizedand 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 Hawaii in an effort to ``rehabilitate a
dying race'' is thus readily understandable in the context of
the prevailing Federal Indian policy in 1921.
In 1959, when the State of Hawaii was admitted into the
Union, the Federal policy toward the native peoples of America
was designated 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 transformed most of its
responsibilities related to the administration of the Hawaiian
Homes Commission Act to the new State of Hawaii, 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 ``llenary,'' Morton v. Mancari, 427 U.S. 535 (1974), its
exercise is subject to judicial review. Delaware Tribal Bus.
Comm. 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 this 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. Hitchcock, 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
Bus. Comm. v. Weeks, 430 U.S. 73, 85-90 (1977); United States v. John
437 U.S. 634 (1978).
---------------------------------------------------------------------------
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.
In one legal action, a petitioner asserted that the scope
of constitutional authority vested in the Congress is
constrained by the manner in which the native people organize
themselves. The petitioner contended that 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
Stats. 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
FederalConvention 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 federal 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
the Congress, but as descriptions of the native people who
occupied and possessed the lands that were late 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 even
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 Hawaiian
Natives, 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 Hawaii) 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 retained the power to
promote the welfare of all native American peoples, and to
foster the ever-evolving means and methods of native American
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
peoples, Hawaiian Natives 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 peoples 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 ``Exquimaux'' 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 Greek
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\
---------------------------------------------------------------------------
\41\ A.M. Joseph, Jr., ``The Indian Heritage of America'' at 40
(rev. ed., 1991).
Others theorized the Indians were the ``lost tribes'' of
Israel.\42\
---------------------------------------------------------------------------
\42\ Id. At 40; 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'' at 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. 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, supra, at 226.
---------------------------------------------------------------------------
Modern scholars might be ``puzzled whether they [Eskimos]
were Indians, or a separate and somewhat mysteriously distinct
people on earth * * *'' \45\ Other might question whether the
native people of Hawaii are ``Indians.'' 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. 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\ Josephy, supra, at 57; see also Oxford English Dictionary (1
sted.) (``OED''), ``Indian'' (``The Eskimos * * * Are usually excluded
from the term'').
---------------------------------------------------------------------------
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.\46\
---------------------------------------------------------------------------
\46\ Robert F. Berkhofer, Jr., ``The White Man's Indian'' at 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.'' \47\ 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.'' \48\ The early Greeks and Romans were
``tribes.'' Welshmen belonged to Tribes.\49\
---------------------------------------------------------------------------
\47\ Alexander Fisher, ``A Journal of a Voyage of Discovery''
(1821) (``all the Esquimaux tribes'') (quoted in Oswalt, supra, at 74);
``The Private Journal of Captain G.F. Lyon'', (1824) (an Eskimo
``tribe'') (quoted in Oswalt, supra, at 179); 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), 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''
(1875) 1-5 (describing small and large divisions of Eskimos as
``tribes'').
\48\ Vol. 1, p. 33 (describing the ``tribes of Britons'' who ``took
up arms with savage fierceness'' and the ``love of freedom without the
spirit of union.'')
\49\ OED, ``Tribe,'' def. 2.a-d.
---------------------------------------------------------------------------
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.\50\ 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,
where the ``tribes'' lived in a unified Kingdom under Kings
David and Solomon.\51\ 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'':
---------------------------------------------------------------------------
\50\ OED, ``Tribe'' (application of the word ``to the tribes of
Israel * * * from its biblical use, was the earliest use in English'').
\51\ 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 form league under King David); 1
Chronicles 11:1-3 (same); Psalm 122 (David expresses joy for the house
of God, where tribes give thanks).
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.\52\
---------------------------------------------------------------------------
\52\ 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'' \53\ Throughout all this history, through the
unification and monarchical period, through the revolt and
diaspora, the Bible taught that the people of Israel remained
``tribes,'' led by their ``chief fathers.,'' \54\ In the New
Testament, all the peoples of the earth were ``tribes.'' \55\
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.
---------------------------------------------------------------------------
\53\ See 1 Kings 12; 2 Chronicles 10-11, 36; 2 Kings 17, 25.
\54\ Ezra 1:5.
\55\ 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.\56\ 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.\57\ 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.
---------------------------------------------------------------------------
\56\ Jefferson, Notes on the State of Virginia, supra, at 221.
\57\ 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 Fort 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.'' \58\
All creation came in tribes. Mankind was organized in tribes,
the Animal Kingdom was organized in ``tribes,'' the ``Vegetable
Kingdom'' was organized in ``Tribes.'' \59\ To every kind its
tribe.
---------------------------------------------------------------------------
\58\ John Adams, July 1756 (emphasis added), in L.H. Butterfield,
et al., eds., ``Diary and Autobiography of John Adams'' (Cambridge,
Mass., 1961), I:39.
\59\ 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 State's power ended and Congress' power began. The
sole stated purpose of 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 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.'' \60\ 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.
---------------------------------------------------------------------------
\60}\James Madison, The Federalist 42, in XIV Documentary History
of the Ratification of the Constitution (J. Kaminski, ed., 1983),
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.'' \61\ 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.'' \62\ 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. \63\ On August 31st, the Convention referred various
``parts of the Constitution'' (including the Commerce Clause)
to a ``Committee of eleven,'' including Madison.\64\ Without
recorded discussion, the Committee recommended that the
language be simplified to commerce ``with the Indian tribes.''
\65\ The Convention accepted the recommendation without debate
or dissent.\66\
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\61\ ``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.
\62\ 2 Federal Convention, at 321, 324; see also id. At 143
(Rutledge noted that ``Indian affairs'' should be added to Congress'
powers).
\63\ 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.
\64\ Id. at 481.
\65\ Id. At 493, 496-97, 503 (emphasis added).
\66\ See id. at 495. The language appears in the final version. Id.
at 569, 595.
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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.''
\67\ 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.\68\ 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.
---------------------------------------------------------------------------
\67\ James Madison, The Federalist 40, in XIV Documentary History
of the Ratification of the Constitution (J. Kaminski, ed., 1983), 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.
\68\ Madison, Federalist 42, in Documentary History XIV: 430-31.
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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.'' \69\ Congress understood its power to
``operate immediately on the persons and interests of
individual citizens.'' \70\ The actions of the new government
also show that even when the Farmers 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.'' \71\
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.
---------------------------------------------------------------------------
\69\ ``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.
\70\ Madison, Federalist 40, in Documentary History, XV: 406.
\71\ George 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.'' \72\ 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.
---------------------------------------------------------------------------
\72\ 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 relationship 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 peoples: Before and after the
Amendment, Indians were not citizens, they did not vote, they
did not count forapportionment, 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 peoples 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,\73\ and Indian nations were treated like alien peoples
not fully within the jurisdiction of the government:
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\73\ 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.\74\
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\74\ Cong. Globe, 39th Cong., 1st Sess. 2895 (1866).
Congress debated what language to adopt in order to make
certain that the special status of the Indian tribes was
preserved.\75\ 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.\76\
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\75\ 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'').
\76\ 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 broad
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'').\77\
---------------------------------------------------------------------------
\77\ See Johnson, 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'' interchangeably: A ``tribe or
nation,'' he noted, ``means a people distinct from others''--a
``distinct community.'' Worcester, 31 U.S. (6 Pet.) at 599,
561.\78\ Like the Founders, Marshall defined an ``Indian
tribe'' as nothing more than a community, large or small, or
descendants of the peoples who inhabited the New World before
the Europeans.
---------------------------------------------------------------------------
\78\ 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--or, as
petitioner likes to say, by ``blood''--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 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.\79\
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\79\ 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.
Candelaria, 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, 657 n.7 (1977) (individuals ``anthropologically'' classified
as 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 identity, 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.'' \80\ 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.'' \81\
From time immemorial, Native American communities have defined
themselves at least in part by family and ancestry.\82\ 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.
---------------------------------------------------------------------------
\80\ Antelope, 430 U.S. At 646; see Fisher v. District Court, 424
U.S. 382, 389 (1976); Morton v. Mancari, 417 U.S. 535, 553-54 (1974);
see also Sac & Fox Nation, 508 U.S. At 123; United States v. Mazruie,
419 U.S. 544, 557 (1975).
\81\ 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).
\82\ 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,''
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 for most
of this century: `` `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.'' \83\ 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.
---------------------------------------------------------------------------
\83\ 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. * * *'' \84\ Recently, the Supreme Court acknowledged
the continued significance of this historic trust
relationship.\85\
---------------------------------------------------------------------------
\84\ United States v. 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).
\85\ See Greater New Orleans Broadcasting Ass'n v. United States,
119 S. Ct. 1923, 1934 (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, the Court
recognized that the Ohio Shawnees remained a ``tribe,'' even
though tribal property was no longer owned communally and the
tribe had abandoned Indiancustoms ``owing to the proximity of
their white neighbors.'' 72 U.S. 737, 755-57 (1866).
Fifty year 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); United States v.
Candelaria, 271 U.S. 432, 439, 442-43 (1926). 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, 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 has 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'' \86\ or large
organizations comprised of numerous ``Tribes.'' \87\ 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.\88\ Congress' treatment of the Alaska Native
peoples--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.\89\
---------------------------------------------------------------------------
\86\ 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.
\87\ 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).
\88\ See John, 437 U.S. At 652-53; Moe v. Confederated Salish &
Kootenai Tribes, 425 U.S. 463, 480 (1976).
\89\ Although the Alaska Natives' situation is ``distinctly
different from that of other American Indians,'' Alaska Chapter, 694
F.2d at 1168-69 n. 10; see Metlakatla Indian Community v. Egan, 369
U.S. 45, 50-51 (1962), it is ``well established'' that Althabascan
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'').
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demograpphics 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 Hawaii. The commission found that native Hawaiians,
like American Indians and Alaska Natives, 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
Hawaii 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 andAlaska 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 revising 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 36 percent as compared to 3 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
the 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 30 percent of the
median family income in the United States.
Also in 1995, the Hawaii 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
Hawaii 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 to the health
status of Native Hawaiians was compared only to other
populations within the State of Hawaii, 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 Hawaii, the Office of
Technology Assessment report contains the following findings:
The Native Hawaiian population living in Hawaii consists of
two groups, Hawaiians and part-Hawaiians, who are distinctly
different in both age distributions and mortality rates.
Hawaiians comprise less than five 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 thirty-
four 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 the 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 this
pattern is also found in both the Hawaiian andpart-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 disease 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, the Native Hawaiian health care
organization that oversees the work of the Native Hawaiian
health care systems and is responsible for preparing and
updating the Native Hawaiian health care master plan, 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 Hawaii
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 Hawaii (231 out of every
100,000 residents), 45 percent higher than that for the total
State population. Native Hawaiian males have the highest cancer
mortality rates in the State of Hawaii 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 Hawaii. Native Hawaiian females ranked highest in the State
of Hawaii for cancers of the lung, liver, pancreas, breast,
cervix uteri, corpus uteri, stomach, and rectum, and for all
cancers combines.
With respect to breast cancer, Native Hawaiians have the
highest mortality rates in the State of Hawaii, and nationally,
Native Hawaiians have the third highest mortality rate due to
breast cancer.
Native Hawaiians have the highest mortality rates from
cancer of the cervix and lung cancer in the State of Hawaii,
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
Hawaii, with full-blood 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
having 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 Hawaii for those 18 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 death rate for Native
Hawaiians from heart disease is 66 percent higher than for the
entire State of Hawaii, and Native Hawaiian males have the
greatest years of productive life lost in the State of Hawaii.
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 Hawaii. Between 1910 and
1980, the life expectancy of Native Hawaiians from birth has
ranged from 5 to 10 years less than that of the overall State
population average, and the most recent data for 1990 indicates
that Native Hawaiian life expectancy at birth is approximately
5 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
Hawaii, 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 Hawaii, 44
percent were Native Hawaiians.
In 1996, Native Hawaiian fetal mortality rates comprised 15
percent of all fetal deaths for the State of Hawaii. Thirty-two
percent of all fetal deaths occurring in mothers under the age
of 18 years were Native Hawaiians, and for mothers 18 through
24 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 achievement 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, in 1988, Congress 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
10-year update of findings of the Native Hawaiian Educational
Assessment Project, which found 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 begin 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 overrepresented
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 underrepresented 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 Hawaii; 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 Hawaii 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,
Hawaiian fourth-graders ranked 39th among groups of students
from 39 States and the District of Columbia in reading. Given
that Hawaiian students rank among the lowest groups of students
nationally in reading, and that Native Hawaiian students rank
the lowest among Hawaiian students in reading, it is imperative
that greater focus be placed on beginning reading and early
education and literacy in Hawaii.
The findings of S. 2899 focus on the history of Native
Hawaiians and 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. 2899 provides a
process for the reorganization of a Native Hawaiian government
and recognition of the Native Hawaiian government by the United
States for purposes of carrying on a government-to-government
relationship.
The bill authorizes a roll to be developed of those Native
Hawaiians who wish to participate in the reorganization of a
Native Hawaiian government. A commission appointed by the
Secretary of the Interior would certify that those on the roll
meet the definition of ``Native Hawaiian'' that is contained in
S. 2899. Upon the commission's certification, the commission
submits the roll to the Interior Secretary for his
certification that the roll is consistent with Federal law, and
thereafter the Secretary is authorized to published the final
roll. A process for appeal for anyone who believes that they
have been wrongfully excluded from the roll, or to challenge
the inclusion of the name of a person on the roll who does not
meet the definition of Native Hawaiian is also authorized.
S. 2899 authorizes the formation of a Native Hawaiian
Interim Governing Council through the election of
representative by the adult members listed on the roll. The
first responsibility of the Council is to conduct a referendum
of all adult members listed on the roll to determine the
elements of organic governing documents for the Native Hawaiian
government. Thereafter, the Council is authorized to develop
organic governing documents that would be subject to
ratification through an election in which the adult members
listed on the roll would vote. Once the organic governing
documents are ratified, and election of officers to the Native
Hawaiian government would be held. That election and those who
would be eligible to participate in such an election are to be
determined by the organic governing documents.
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. Once the Secretary has made
this certification, the bill 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.
S. 2899 also provides authority for the establishment of a
United States Office of Native Hawaiian Affairs 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 unit a Native Hawaiian government is formed. The Office
is authorized to enter into contracts or make grants to
facilitate the development of the roll referenced above and to
assist in the elections that would be conducted by the Native
Hawaiian Interim Governing Council, if the Office is called
upon to provide such assistance. The Office would also serve as
the primary agent of ongoing efforts to effect the
reconciliation that is authorized in the Apology Resolution.
Together with the Office of Tribal Justice in the U.S.
Department of Justice, the two offices would serve as lead
agencies for the work of a Native Hawaiian Interagency Task
Force that is authorized to be established in S. 2899.
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. 2899 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 reorganization of
the Native Hawaiian government.S. 2899 does authorize
appropriations for the establishment of the U.S. Office of Native
Hawaiian within the Department of the Interior, and for a three-year
period for grants to assist Native Hawaiians in reorganizing a Native
government, 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 Indian Gaming Regulatory Act authorizes Indian tribal
governments to conduct gaming on Indian reservations and lands
held in trust by the United States for Indian tribes. 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 Hawaii, nor are
there any Indian reservations or Indian lands. Hawaii 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 Hawaii.
resolutions of support for s. 2899
The resolution of the Hawaii State Legislature in the form
of House Concurrent Resolution No. 41, is set forth below.
In addition, the resolution of the Board of Directors of
the Alaska Federation of Natives, Inc., in the form of Board
Resolution 00-05, adopted on May 8, 2000 is set forth below.
The National Congress of American Indians adopted two
resolutions--Resolution JUN-00-032, adopted at the Congress'
2000 Mid-Year Session, and Resolution PSC-99-042, adopted at
the Congress' 1999 Annual Session--both of which are set forth
below.
The resolution of the Japanese American Citizens League,
adopted at the League's 36th Biennial National Convention, is
set forth below.
SECTION-BY-SECTION ANALYSIS OF S. 2899
Section 1. Findings
This section set 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 Hawaii.
Findings (5) through (7) reflect Congress's 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 Hawaii. 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 for this flexibility by
first identifying those Native Hawaiians eligible to
participate in the reorganization of the Native Hawaiian
government. The legislation further provides that once the
Native Hawaiian government addresses this issue in its organic
governing documents, that the definition established by the
Native Hawaiian governments will serve as the definition of
Native Hawaiian for purposes of this Federal law.
Roll--It is the intent of the Committee that the roll be
used for the purposes of identifying those individuals who meet
the definition of Native Hawaiian as defined in section 7(a)(1)
to participate in the reorganization of the Native Hawaiian
government. Once the roll has been established, the members on
the roll have the flexibility to retain the roll should they
determine it necessary for additional purpose.
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 of Native Hawaiian
Affairs
This provision provides authority for the establishment of
the United States Office for Native Hawaiian Affairs within the
Office of 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) conducting meaningful, regular, and
appropriate consultation with the Native Hawaiian people
regarding any action that may affect traditional or current
practices and matters that significantly or uniquely impact
Native Hawaiian resources, rights, or lands; (3) consulting
with the Native Hawaiian Interagency Task Force, other Federal
agencies, and with the State of Hawaii on policies, practices,
and proposed actions affecting Native Hawaiian resources,
rights, or lands; (4) preparing and submitting to the Senate
Committee on Indian Affairs, Senate Committee on Energy and
Natural Resources, and House Resources Committee an annual
report detailing the Interagency Task Force's activities
regarding the reconciliation process, consultation with the
Native Hawaiian people, and recommendations of necessary
changes to existing Federal statutes; (5) continuing the
process of reconciliation with the Native Hawaiian people; and
(6) assisting the Native Hawaiian people in facilitating a
process for self-determination, the organization of a Native
Hawaiian Interim Governing Council, and recognition of the
Native Hawaiian government. Once the Native Hawaiian government
is formed, the Native Hawaiian government, rather than
individual Native Hawaiians.
The Office is also authorized to enter into contracts and
grants for the purposes of the activities authorized in section
7 for a period of 3 years.
It is the intent of the Committee that the United States
Office for Native Hawaiian Affairs serve as a liaison between
the Native Hawaiian people and the United States forthe
purposes of assisting with the reorganization of the Native Hawaiian
government, 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 Affairs 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. Designation of Department of Justice representative
This section requires the United States Attorney General to
designate an appropriate official within the Department of
Justice to assist the U.S. Office of Native Hawaiian Affairs in
implementing and protecting the rights of Native Hawaiians and
their political, legal, and trust relationship with the United
States and, upon recognition of the Native Hawaiian government,
the rights of the Native Hawaiian government and its political,
legal, and trust relationship with the United States.
Section 6. Native Hawaiian interagency task force
This section authorizes the establishment of an Interagency
Task Force composed of officials from each Federal agency, to
be designated by the President, a representative from the U.S.
Office of Native Hawaiian Affairs, and a representative from
the Executive Office of the President. The Departments of
Justice and Interior will serve as the lead agencies of the
Task Force, and the Attorney General's designee and the head of
the U.S. Office of Native Hawaiian Affairs will serve as co-
chairs. The primary responsibility of the Task Force to
coordinate Federal policies or acts that affect Native
Hawaiians or impact Native Hawaiian resources, rights, or
lands. The Task Force is also charged with assuring that each
Federal agency develop a Native Hawaiian consultation policy
and participate in the development of the report to Congress.
Section 7. Process for the development of a roll for the organization
of a Native Hawaiian interim governing council, for the
organization of a Native Hawaiian interim governing council and
a Native Hawaiian government, and for the Federal recognition
of the Native Hawaiian government
a. Roll. This provision authorizes the U.S. Office of
Native Hawaiian Affairs to assist the adult members of the
Native Hawaiian community who wish to participate in the
reorganization of a Native Hawaiian government in preparing a
roll for the purpose of organizating a Native Hawaiian Interim
Governing Council. The roll shall 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 Hawaii 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 may 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, is limited to the adult members listed on
the roll.
A nine-member Commission is authorized to be established.
The Commission is to be made up of Native Hawaiians appointed
by the Secretary. In appointing members of the Commission, the
Secretary may choose such members from among 5 suggested
candidates submitted by the Majority and Minority Leaders of
the Senate and 4 suggested candidates submitted by the Speaker
of the House of Representatives and the Minority Leader of the
House of Representatives. The Secretary may appoint members who
are not on either list submitted by the Senate or the House of
Representatives. In making appointments to the Commission, the
Committee would encourage the Secretary to select Native
Hawaiians who are either skilled in the translation of legal
and genealogical documents that are written in the Native
Hawaiian language, or who are recognized as having expertise in
the research and documentation of Native Hawaiian genealogies,
or who are generally recognized and accepted as genealogical
experts by the Native Hawaiian community. Any vacancy on the
Commission shall not affect its powers and shall be filled in
the same manner as the original appointment.
The Commission is charged with certifying that the adult
members of the Native Hawaiian community who wish to be listed
on the roll and participate in the organization of the Native
Hawaiian Interim Governing Council (Council) meet the
definition of ``Native Hawaiian'' as established in this Act.
The Secretary shall certify that the roll is consistent
with applicable federal law. If the Secretary fails to certify
the roll within 90 days, the roll shall be deemed certified by
the Secretary and the Commission shall publish the final roll.
The Secretary is also authorized to establish an appeal
mechanism to address the exclusion of the name of a person who
meets the definition of Native Hawaiian or to address a
challenge to the inclusion of the name of a person on the roll
on the grounds that the person does not meet the definition of
Native Hawaiian.
After certifying that the roll is consistent with
applicable Federal law, the Secretary shall publish the final
roll. The roll may be published even though appeals are
pending,however, the Secretary must update the final roll upon
final disposition of any appeal. The final roll shall serve as the
basis for the eligibility of adult members to participate in all
referenda and elections associated with the organization of the Council
and the Native Hawaiian government.
b. Recognition of Rights. This provision recognizes the
right of Native Hawaiians to organize for their common welfare
and to adopt appropriate organic governing documents.
c. Organization of the Native Hawaiian interim Governing
Council. This subsection authorizes the adult members of the
roll to develop the criteria for candidates and the structure
of the Council. The committee intends for the adult members of
the roll to determine how the Native Hawaiian Interim Governing
Council should be structured. 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.
Upon request of the adult members listed on the roll, the
U.S. Office of Native Hawaiian Affairs is authorized to provide
assistance in the conduct of an election by secret ballot to
elect the membership of the Council. The provision is intended
to allow the adult members the flexibility to hold the election
themselves or to request the assistance of the U.S. Office of
Native Hawaiian Affairs.
The Council is authorized to represent those on the roll in
implementing the Act and is to have no power other than those
authorized by S. 2899. The Council is authorized to enter into
contracts or grants to carry out is 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 is 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 Native Hawaiian government officers.
d. Recognition of the Native Hawaiian Government. The duly
elected officers of the Native Hawaiian government shall submit
the organic government documents to the Secretary for
certification that the organic governing documents were adopted
by a majority vote of those eligible to vote; are consistent
with applicable Federal law and the special trust relationship
between the United States and Native Hawaiians; provide for the
exercise of those governmental authorities that are recognized
by the United States as the powers and authorities that are
exercised by other governments representing the inidgenous,
native people of the United States; provides for the protection
of the civil rights of the citizens of the Native Hawaiian
government and those subject to the authority of the Native
Hawaiian government; prevents the sale, disposition, lease or
encumbrance of lands, interests in lands, or other assets of
the Native Hawaiian government without the consent of the
Native Hawaiian government; sets forth the citizenship criteria
of the Native Hawaiian government; and authorizes the Native
Hawaiian government to negotiate with Federal, State, and local
governments. The organic governing documents will be deemed
certified if the Secretary fails to certify them within 90 days
of the date the Native Hawaiian government submitted the
documents.
If the Secretary determines that any provision of the
organic governing documents does not comply with applicable
Federal law, the Secretary shall return the organic governing
documents to the Native Hawaiian government identifying each
provision that is inconsistent with applicable Federal law and
providing a justification for each finding that a provision is
inconsistent with applicable Federal law. The Native Hawaiian
government is authorized to amend the organic governing
documents to assure their compliance with applicable Federal
law. After the organic governing documents are amended, the
Native Hawaiian government may resubmit the organic governing
documents to the Secretary for certification.
e. Federal Recognition. This provision specifies 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. This provision also provides that nothing contained
in the Act shall diminish, alter or amended any rights or
privileges the Native Hawaiian people enjoy that are not
inconsistent with the provisions of the Act.
Section 8. Authorization of appropriations
This section authorizes the appropriation of such sums as
may be necessary to carry out the activities authorized.
Section 9. Reaffirmation of delegation of Federal Authority;
negotiations
This section reaffirms the United States' delegation of
authority to the State of Hawaii 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 Hawaii 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.
Section 10. Disclaimer
This section provides that nothing in this Act is intended
to serve as a settlement of any claim against the United
States, or affects the rights of the Native Hawaiian people
under international law.
Section 11. Regulations
This section authorizes the Secretary to make such rules
and regulations and to delegate such authority, as the
Secretary deems necessary.
Section 12. 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. 2899 was introduced in the Senate on July 20, 2000 by
Senators Akaka and Inouye, and was referred to the Committee on
Indian Affairs. A companion measure, H.R. 4904, was introduced
by Congressman Abercrombie on July 20, 2000, and was referred
to the Committee on Resources. 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
Hawaii 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
favorably reported to the House of Representatives by the House
Resources Committee on September 20, 2000.
committee recommendation and tabulation of vote
On September 13, 2000, the Committee on Indian Affairs, in
an open business session, adopted an amendment in the nature of
a substitute to S. 2899 by voice vote and ordered the bill, as
amended, reported favorably to the Senate.
cost and budgetary considerations
The cost estimate for S. 2899, as calculated by the
Congressional Budget Office, is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 25, 2000.
Hon. Ben Nighthorse Campbell,
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. 2899, a bill to
express the policy of the United States regarding the United
States' relationship with Native Hawaiians, to provide a
process for the reorganization of a Native Hawaiian government
and the recognition by the United States of the Native Hawaiian
government, 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.
Keith (for federal costs) and Marjorie Miller (for the impact
on state, local, and tribal governments).
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
S. 2899--A bill to express the policy of the United States regarding
the United States' relationship with Native Hawaiians, to
provide a process for the reorganization of a Native Hawaiian
government and the recognition by the United States of the
Native Hawaiian government, and for other purposes
S. 2899 would establish a process for a Native Hawaiian
government to be constituted and recognized by the federal
government. CBO estimates that implementing S. 2899 would cost
$5 million over the 2001-2003 period, assuming the
appropriation of the necessary amounts. The bill would not
affect direct spending or receipts, so pay-as-you-go procedures
would not apply. S. 2899 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. Enactment of 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, as defined in
the bill. The bill would authorize the office to assist in
developing a list of individuals who meet that definition.
Based on information from DOI, CBO estimates that this work
would cost $2 million over the 2001-2003 period. In addition,
the bill would establish a commission to verify that those
listed meet the bill's criteria for native Hawaiians. Based on
information for DOI, we estimate that commission costs would
total about $1 million each year over the three-year period.
On September 25, 2000, CBO transmitted a cost estimate for
H.R. 4904, as ordered reported by the House Committee on
Resources on September 20, 2000. These two bills are identical,
as are our cost estimates.
The CBO staff contacts are Lanette J. Keith (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.
REGULATORY AND PAPERWORK IMPACT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill evaluate
the regulatory and paperwork impact that would be incurred in
implementing the legislation. S. 2899 authorizes the Secretary
of the Interior to promulgate rules and regulations to carry
out the provisions of the Act, thus the enactment of S. 2899
will have an impact on the Department's regulations and
paperwork.
EXECUTIVE COMMUNICATIONS
The testimony of the representatives of the Departments of
Justice and Interior on S. 2899 are set forth below:
Statement of Robert T. Anderson, Counselor to the Secretary, Department
of the Interior
introduction
Good morning, Mr. Chairman and members of both Committees.
I am Robert Anderson, Counselor to the Secretary of the
Department of the Interior. It is my pleasure to be here today
to present the Department's views on S. 2899 and H.R. 4904.
Mr. Chairman, the Administration supports the purposes of
S. 2899 and H.R. 4904 that are before both Committees. The
Department believes that the Bills appropriately affirm and
acknowledge the political relationship between the United
States and Native Hawaiians. Our recommended change is set out
below, along with our general comments.
background
The Native Hawaiian people are the aboriginal, indigenous,
native people of Hawaii. They have lived in Hawai'i for over
1,000 years, and their culture was based on a well developed
system of agriculture and acquaculture. Native Hawaiians made
remarkable artistic, cultural, and scientific advances,
including amazing feats of navigation, prior to the first
contact with Europeans in 1778. In 1810, King Kamehameha I
established the unified Kingdom of Hawai'i to govern the Native
Hawaiian people. Over the next 60 years, the United States
entered into several treaties of peace, friendship and commerce
with the kingdom of Hawaii, recognizing its status as an
independent sovereign.
During the 1880s, western influence over the Kingdom of
Hawai'i increased, and in 1893, as Queen Lili'uokalani sought
to restore the full authority of the Native Hawaiian monarchy,
the American and European plantation owners acting in concert
with the U.S. Minister and military forces overthrew the
Kingdom. The Provisional Republic of Hawaii, formed by the
plantation owners, then seized the Crown and public lands of
the Kingdom of Hawaii, including one-third of Hawai'i that was
impressed with a trust for the Native Hawaiian common people.
Although President Cleveland initially opposed the overthrow,
President McKinley supported the call of the Republic of
Hawai'i for annexation. Congress annexed Hawai'i in 1898,
without the consent of the Native Hawaiian people. As a result
of the overthrow, laws suppressing Hawaiian culture and
language, and displacement from the land, the Native Hawaiian
people suffered mortality, disease, economic deprivation,
social distress, and population decline.
The Territory of Hawai'i recognized that the conditions of
the Native Hawaiian people continued to deteriorate, and
members of the territorial legislature proposed that Congress
enact a measure to rehabilitate the Native Hawaiian people by
returning them to the land and promoting agriculture under
Federal protections. In congressional hearings, the Secretary
of the Interior acknowledged that the Native Hawaiian people
were suffering a decline and that the Federal Government had a
special responsibility to promote their welfare. In 1920,
relying in part on the precedent of the General Allotment Act,
which provided individual lands for American Indians under
Federal protections, Congress enacted the Hawaiian Homes
Commission Act to rehabilitate the Native Hawaiian people by
setting aside for Native Hawaiian settlement and agriculture
use 200,000 acres of the ``ceded'' lands, i.e., the former
Crown and public lands of the Kingdom of Hawaii. Later, in the
State Admissions Act, Congress set aside the balance of the
ceded lands, not reserved for Federal purposes, in a public
trust to be held and administered by the State for five
purposes, including the betterment of the Native Hawaiians.
The Hawaiian Homeland settlements throughout the Hawaiian
Islands assisted the Native Hawaiian people in maintaining
their historic ties to the land and distinctly native
settlements. In addition, through Native Hawaiian social and
political institutions, such as the Native Hawaiian civil
clubs, the Kamehameha schools, and the Lili'uokalani Hawaiian
Children's Foundation, the Native Hawaiian community has
maintained its distinct character as an aboriginal, native
people. In recent years, overcoming a legacy of cultural
suppression, Native Hawaiians have revitalized their language,
culture, traditions, and aspiration for self-determination
through Native Hawaiian language immersion programs, cultural
education programs, restoration of traditional agriculture and
aquaculture, creation of new social institutions and quasi-
governmental service providers and the Native Hawaiian
sovereignty movement, among other things. And, Native Hawaiians
have made clear their desire for self-determination, i.e.,
increased Native Hawaiian control of Native Hawaiian affairs,
resources, and lands.
Nevertheless, the Native Hawaiian people, as a native
community, continue to suffer from economic deprivation, low
educational attainment, poor health status, substandard
housing, and social dislocation. In response, since the early
1970s, Congress has enacted statutes that recognize these
problems among Native Hawaiians and establish programs to
address them. For example, the Native Hawaiian Education Act
refers to studies that show that Native Hawaiian students face
educational risk factors start before birth, stemming from
substandard prenatal care and high rates of teen births, and
continue to score below national average at all grade levels.
20 U.S.C. sec. 7902. This Act provides funding to Native
Hawaiian schools and education councils to promote special
education programs for Native Hawaiian students. The Native
Hawaiian Health Care Act finds that ``the unmet health needs of
the Native Hawaiian people are severe and the health status of
Native Hawaiians continues to be far below that of the general
population of the United States.'' 42 U.S.C. sec. 11701. This
Act provides funding to Native Hawaiian health care providers
to provide preventative health care to the Native Hawaiian
community. The Native Hawaiian Housing Bill, S. 225, finds that
Native Hawaiians face the most severe housing shortage of any
group in the Nation, and if enacted, would provide low income
housing to Native Hawaiians on Hawaiian Home lands.
the reconciliation process under public law 103-150
Against this background in 1993, Congress enacted Public
Law 103-150, the Native Hawaiian Apology Resolution, which
acknowledged the role of United States' officers in the
overthrow of the Kingdom of Hawai'i and called on the Executive
Branch to undertake special efforts to promote reconciliation
between the United States and the Native Hawaiian people. The
passage of the Apology Resolution was the first step in this
reconciliation process.
In March of 1999, Senator Daniel K. Akaka asked Secretary
of the Interior Bruce Rabbit and Attorney General Janet Reno to
designate officials to represent their respective Departments
in efforts of reconciliation between the Federal Government and
Native Hawaiians. Secretary Babbitt designated John Berry,
Assistant Secretary, Policy Management and Budget, for the
Department of the Interior, and Attorney General Reno
designated Mark Van Norman, Director, Office of Tribal Justice,
for the Department of Justice, to take the next steps in the
reconciliation process.
Informal meetings was held on O'ahu in August 1999, and
public consultations with Mr. Berry and Mr. Van Norman
commenced in December 1999, when meetings with the Native
Hawaiian community were held on Kaua'i, Maui, Moloka'i, and
Lana'i, and in Hilo, Waimea and Kona on Hawai'i. These public
consultations ended in two days of formal hearings held on
O'ahu. Oliver forty hours of public testimony was received.
During their visit to Hawai'i, Mr. Berry and Mr. Van Norman
also visited Native Hawaiian homestead communities, taro farms,
Hawaiian language immersion schools, and Native Hawaiian fish
ponds in the process of being restored, and observed numerous
programs designed to benefit Native Hawaiians. Throughout the
meetings, Native Hawaiians repeatedly expressed the desire for
increased self-determination concerning Native Hawaiian
affairs, resources, and lands. As a result of the process, the
Departments recently issued a report outlining recommendations
with respect to the continuation of the reconciliation process,
including federal recognition, self-determination, and self-
governance, to help the Native Hawaiians provide a better
future for their members and community. The Report will be
finalized after the public has had an opportunity to comment.
Native Hawaiians also have called upon the United States to
assist them in improving economic opportunities educational
attainment, health status, and housing. Specifically, the
Native Hawaiian people requested that the Administration
support and Congress enact S. 225, the Native Hawaiian Housing
Act and reauthorize the Native Hawaiian Education Act and the
Native Hawaiian Health Care Act.
Within the framework of Federal law, there are established
precedents to accommodate the Native Hawaiian people's desire
for increased self-determination. American Indian tribes and
Alaska Native villages exercise self-determination over native
institutions, such as schools and health care institutions;
over native affairs, such as language and cultural
preservation; and over native lands and resources. They do so
through recognized tribal governments and federally chartered
native corporations in the context of the Federal policy of
recognizing the unique government-to-government and special
relationships that exist between the United States and its
native peoples. American Indian and Alaska Native peoples value
self-determination as an avenue for addressing their
communities, economic, educational, health, and social needs.
Indeed, American Indian and Alaska Native peoples view the
Federal Indian self-determination policy as recognizing their
legitimate aspiration to transmit their distinct native values,
traditions, beliefs, and aboriginal lands to their future
generations.
In furtherance of reconciliation process, the Native
Hawaiian people seek to re-organize a native governing body. A
Native Hawaiian governing body, organized against the
background of established precedent, would serve as a
representative voice for the Native Hawaiian people, focus
community goals, provide governmental services to improve
community welfare, and recognize the legitimate aspiration of
the Native Hawaiian people to transmit their values,
traditions, and beliefs to their future generations.
The United States has a unique legal relationship with
Indian tribal governments as set forth in the Constitution of
the United States, treaties, statutes, Executive orders, and
court decisions. Since the formation of the Union, the United
States has recognized Indian tribes as domestic dependent
nations under its protection. In treaties and under Federal
common law, our Nation has guaranteed the right of Indian
tribes to self-government. As domestic dependent nations,
Indian tribes exercise inherent sovereign powers over their
members and territory. The United States continues to work with
Indian tribes on a government-to-government basis to address
issues concerning Indian tribal self-government, trust
resources, and Indian tribal treaty and other rights.
Traditionally, most aspects of the trust responsibility
were delegated by Congress to the Department of the Interior
and the Department of Justice, the latter of which has
litigated many court cases on behalf of Indian tribes and
individuals. As Federal programs for Indians have proliferated
in modern times, many other Federal agencies have become
involved in Indian affairs and they, too, must comply with the
duties imposed by the trust relationship.
In the Department of the Interior, the Bureau of Indian
Affairs (BIA) is the principal bureau within the Federal
Government responsible for the administration of Federal
programs for Federally recognized Indian tribes, and for
promoting Indian self-determination. In addition, the BIA, like
all Federal agencies, has a trust responsibility emanating from
treaties, statutes, judicial decisions and agreements with
tribal governments. The mission of the BIA is to enhance the
quality of life, to promote economic opportunity, and to carry
out the responsibility to protect and properly manage the trust
assets of Indian tribes and Alaska Natives. The BIA provides
resources and delivers services to support tribal government
operations similar to those provided by state, city, and
municipal governments. These services include, but are not
limited to: law enforcement, social services, education,
housing improvements, loan opportunities for Indian businesses,
and leasing of land.
The BIA currently provides Federal services to
approximately 1.2 million American Indians and Alaska Natives
who are members of more than 550 Federally recognized Indian
tribes in the 48 contiguous States and in Alaska. The BIA also
has a trust responsibility for more than 43 million acres of
tribally-owned land and more than 10 million acres of
individually-owned land. The BIA is headed by the Assistant
Secretary-Indian Affairs, who is responsible for BIA policy.
trust responsibility
The courts consistently have upheld exercises of
congressional power over Indian affairs, as specifically
provided under the Indian Commerce Clause. U.S. Constitution,
Article I, Section 8, clause 3. Pursuant to that authority, the
Congress has enacted many statutes for the benefit of Native
Hawaiians.
The concept of the Federal Indian trust responsibility was
evident in the Trade and Intercourse Acts and other late 18th
and 19th-century Federal laws protecting Indian land
transactions and regulating trade with the tribes. The doctrine
was first announced in Chief Justice Marshall's opinion in
Cherokee Nation v. Georgia (1831). The Cherokee Nation had
filed suit in the United States Supreme Court to enjoin the
state of Georgia from enforcing state laws on lands guaranteed
to the tribe by treaties. The Court concluded that the tribe
was neither a state nor a foreign nation under the Constitution
and therefore was not entitled to bring the suit initially in
the Supreme Court. Chief Justice Marshall, however, concluded
that Indian tribes ``may, more correctly, perhaps, be
denominated domestic dependent nations'' and that ``[t]heir
relation to the United States resembles that of a ward to his
guardian.'' The courts consistently have upheld exercises of
congressional power over Indian affairs, often relying on the
trust relationship.
The Supreme Court's subsequent decision in Worcester v.
Georgia (1832) reaffirmed the status of Indian tribes as self-
governing entities. Chief Justice Marshall construed the
treaties and the Indian Trade and Intercourse Acts as
protecting the tribes' status as distinct political communities
possessing self-government authority within their boundaries.
Thus, Georgia state law could not be applied on Cherokee lands
because, as a matter of Federal law, the United States had
recognized tribal self-governing powers by entering into a
treaty with the Cherokees. In spite of its government status,
however, the Cherokee Nation was placed expressly by the
treaties ``under the protection of the United States.''
Under the special relationship, Indian tribes receive some
benefits not available to other citizens. For example, in the
1974 Morton v. Mancari decision, the Supreme Court upheld a BIA
Indian hiring preference because, like special health and
education benefits flowing from the trust relationship, the
preference is not based on race; rather, Federal programs
dealing with Indians derive from the government-to-government
relationship between the United States and Indian tribes. The
same reasoning applies to off-reservation Indian hunting and
fishing rights; they trace to treaties with specific tribal
governments.
federal recognition
The rights, duties and obligations that make up the trust
relationship as exercised through the Secretary of the Interior
exist only between the United States and those Indian tribes
``recognized'' by the United States. Once Federal recognition
is found to exist, it results in the establishment of a
government-to-government relationship with the tribe.
An Indian group is a federally recognized tribe if: (1)
Congress or the executive created a reservation for the group
either by treaty, by statutorily expressed agreement, or by
executive order or other valid administrative action; and (2)
the United States has some continuing political relationship
with the group, such as providing services through the BIA.
Accordingly, Indian groups situated on Federally maintained
reservations are considered tribes under virtually every
statute that refers to Indian tribes. In addition, tribes have
been recognized by the United States based on the existence of
treaty relations or other continuous dealings with the Federal
Government, despite the lack of a reservation.
In 1978, in order to resolve doubts about the status of
those tribes lacking Federal recognition, the Department of the
Interior issued regulations entitled ``Procedures for
Establishing that an American Indian Group Exists as an Indian
Tribe,'' now codified at 25 CFR 83. The regulations ``establish
a departmental procedure and policy for acknowledging that
certain American Indian tribes exist.''
Such acknowledgement of tribal existence by the Department
is a prerequisite to the protection, services, and benefits
from the Federal Government available to Indian tribes. Such
acknowledgment also means that the tribe is entitled to the
immunities and privileges available to other Federally
acknowledged Indian tribes by virtue of their status as Indian
tribes as well as the responsibilities and obligations of such
tribes. Acknowledgment subjects the Indian tribe to the same
authority of Congress and the United States to which other
Federally acknowledged tribes are subjected. 25 CFR 83.2.
Under the procedures, groups not recognized as tribes by
the Federal Government may apply for Federal acknowledgement.
Tribes, bands, pueblos or communities already acknowledged as
such and receiving services from the Bureau of Indian Affairs
were not required to seek acknowledgment anew. 25 CFR 83.3 (a),
(b). To assist groups in determining whether they were required
to apply, the procedures provided for the publication within 90
days of a list of ``all Indian tribes which are recognized and
receiving services from the Bureau of Indian Affairs.'' 25 CFR
83.6(b). This list is to be updated annually. Federally
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.
department comments on s. 2899 and h.r. 4904
The Department has recommended a reconciliation process
that would result in an official confirmation of a political,
government-to-government relationship between Native Hawaiians
and the Federal Government, similar to the relationship enjoyed
by other native people in the United States. The Senate and
House Bills would enable the Native Hawaiians to establish a
representative governing body through a process that has
precedent in the federal recognition of Indian tribes.
The Department has recommend the establishment of an office
under the Assistant Secretary of Indian Affairs to address
Native Hawaiian issues. The Bills, however, would establish a
new Interior Office of Special Trustee for Native Hawaiian
Affairs.
The Department has recommended the creation of a Native
Hawaiian Advisory Commission to consult with Interior bureaus
that manage land in Hawaii affecting Native Hawaiians. The
Bills would also establish a Native Hawaiian Interagency Task
Force for the government-wide coordination of federal policies
affecting Native Hawaiians, including consultations with the
Native Hawaiian governing body.
We have carefully reviewed the definition of ``Native
Hawaiians'' in the Bills and consulted with the Department of
Justice. We concur in the recommendations made by the
Department of Justice with respect to that definition.
conclusion
The Department of the Interior generally supports the
legislation and is committed to working with the Native
Hawaiian people and the Congress, upon enactment of this
legislation, to address successfully the steps to federal
recognition, self-governance, and self-determination of the
Native Hawaiian people. There are a number of prospective
matters that the Federal Government may have to work out with
the Native Hawaiian governing body and the State of Hawai'i,
through future legislation. These challenges may include:
Potential land claims that Native Hawaiians may
assert against the United States, the State of Hawai'i
or private landowners;
The nature and extent of the rights, obligations and
benefits in extending Federal recognition to Native
Hawaiians under the Native American Indian statutes;
The Federal Government's trust and fiduciary
responsibilities for any federal lands that may be
transferred to the Native Hawaiian community; and
The relative responsibilities of Native Hawaiian
community and the State of Hawai'i and its local
governments in providing schools, law enforcement, and
other public services.
With the permission of the Committees, the Department
intends to supplement this testimony with additional views on
S. 2899 and H.R. 4904 before the record is closed. This
concludes my prepared statement. I will be happy to answer any
questions the Committee members may have.
------
Testimony of Jacqueline Agtuca, Acting Director, Office of Tribal
Justice, U.S. Department of Justice
Vice Chairman Inouye, Senator Akaka, and Representatives
Abercrombie and Faleomavaega, my name is Jacqueline Agtuca. I
am the Acting Director of the Office of Tribal Justice in the
United States Department of Justice. Thank you for the
opportunity to present views on S. 2899 and H.R. 4904.
At the outset, I should explain that the Office of Tribal
Justice coordinates Department policy on its dealings with
American Indians, Alaska Natives, and Native Hawaiians.
Department of Justice policy recognizes the principle of
government-to-government relations in its work with tribal
governments. See Department of Justice Policy on Indian
Sovereignty and Government-to-Government Relations with Indian
Tribes, at 1 (June 1, 1995); http://www.usdoj.gov/otj/
sovtrb.htm. Pursuant to this policy, the Office of Tribal
Justice has been integrally involved in the Reconciliation
Process between the United States and the Native Hawaiian
people pursuant to Public Law 103-150 (S.J. Res. 19), 107 Stat.
1510 (1993), the Native Hawaiian Apology Resolution. S. 2899
and H.R. 4904 would provide the Native Hawaiian people with an
opportunity to reorganize a representative, self-governing body
to promote Native Hawaiian interests.
I will begin with a brief background of the relevant
history of United States-Native Hawaiian relations and a
discussion of the Reconciliation Process under Public Law 103-
150 before turning to some of our specific comments on the
identical Senate and House bills.
i. background of native hawaiian-united states relations
The Native Hawaiian people are the indigenous people of
Hawaii. Historically, the Native Hawaiian people lived in a
highly organized, self-sufficient, subsistence social system
based on communal land tenure. The Native Hawaiians have a
highly developed and distinctive language, culture, and
religion. The first encounter between Native Hawaiians and
Europeans occurred when Captain James Cook sailed into Hawaiian
waters in 1778. At that time, even though indigenous Hawaiians
were all one people, the eight islands were governed by four
independent Hawaiian chiefdoms.
In 1810, King Kamehameha I united the islands into the
Kingdom of Hawaii. Between 1826 and 1893, the United States
recognized the Kingdom as a sovereign nation and entered into
several treaties with it. During that same period, Americans
gained control of most of Hawaii's commerce and began to
dominate the Kingdom's political affairs. Resulting social and
economic changes had a ``devastating'' effect on the Native
Hawaiian population and on their ``health and well-being.''
Public Law 103-150, 107 Stat. 1510, 1512.
In 1893, Queen Lili'uokalani sought to re-establish Native
Hawaiian control over the Kingdom's governmental affairs
through constitutional reform. Fearing a loss of power, a group
representing American commercial interests overthrew the
Kingdom with the unauthorized aid of the United States Minister
to Hawaii, who caused an armed U.S. naval force to invade
Hawaii. Under this threat of military force, Queen
Lili'oukalani abdicated her throne. A provisional government
was established, which immediately sought Hawaii's annexation
by the United States. President Cleveland refused to recognize
the provisional government and called for restoration of the
monarchy. However, Congress later enacted a joint resolution
annexing Hawaii, which President McKinley signed into law in
1898. As part of annexation, the provisional government,
without compensation to the Native Hawaiian people, ceded 1.8
million acres of the Kingdom's former crown, government, and
public lands to the United States (the ``ceded lands'').
After annexation, the conditions of Native Hawaiians
continued to deteriorate, and in 1920, territorial
representatives sought assistance for the Native Hawaiian
people from Congress. Explaining that the Native Hawaiian
people had been ``frozen out of their lands and driven into the
cities,'' and that the ``Hawaiian people are dying,'' the
representatives recommended allotting land to the Native
Hawaiians so that they could reestablish their traditional
agricultural way of life. H.R. Rep. 839, 66th Cong., 2d Sess. 4
(1920). Recognizing the unique relationship between the United
States and the Native Hawaiian people, the Secretary of the
Interior joined in the recommendation, stating that Native
Hawaiians are ``our wards * * * for whom in a sense we are
trustees,'' that they were ``falling off rapidly in numbers,''
and that ``many of them are in poverty.'' Id. Additionally,
Congress found constitutional precedent for the HHCA in part in
previous enactments that allotted individual lands to American
Indians. The recommendations led to the enactment of the
Hawaiian Homes Commission Act (``HHCA''), Pub. L. No. 67-34, 42
Stat. 108 (July 9, 1921), which designated 200,000 acres of
lands as homelands for ``Native Hawaiians'' of \1/2\ blood or
more.
In 1959, Hawaii was admitted as a State. In the Hawaii
Admissions Act, Pub. L. No. 86-3, 73 Stat. 4 (1959), Congress
required the new State of Hawaii to adopt the HHCA as part of
its constitution and transferred federal authority over
administration of the HHCA lands to the State. Congress also
placed an additional 1.2 million acres of the ceded lands into
a trust to be managed by the State for five specified purposes,
including ``the betterment of the conditions of native
Hawaiians.'' Id Sec. 5(f), 73 Stat. at 6.
The admission of Hawaii as a State did not alter the status
of Native Hawaiians as an indigenous people, and thus, did not
alter the political relationship between the United States and
the Native Hawaiian people. After passage of the Hawaii
Admission Act, Congress continued to recognize its special
responsibility for the welfare of Native Hawaiians. Congress
has established programs for the benefit of Native Hawaiians in
the areas of health care, education, employment, and loans.
Congress has also enacted statutes to preserve Native Hawaiian
culture, language, and historical sites. Native Hawaiians have
been classified as Native Americans in a number of federal
statutes. These laws reflect Congress's view that its
``authority * * * under the United States Constitution to
legislate in matters affecting the aboriginal or indigenous
peoples of the United States includes the authority to
legislate in matters affecting the native peoples of * * *
Hawaii.'' 42 U.S.C. Sec. 11701(17). This acknowledgment of a
distinct political relationship between the United States and
the Native Hawaiians arose out of these historical events I
have just described.
In 1980, Congress authorized a Native Hawaiians Study
Commission to assess the cultural needs and concerns of Native
Hawaiians (Public Law 96-565, Title III). The Commission,
comprised of three Hawaiian residents, six federal officials,
and support staff, conducted public meetings and other fact-
finding activities throughout Hawaii during January-June 1982.
The Commission's final, two-volume report was submitted to
Congress on June 23, 1983. The social and economic conditions
of the Native Hawaiian population has not improved
significantly since this 1983 study. Their employment, income,
education, and health levels have remained lower than other
ethnic groups in Hawaii. The Commission recommended coordinated
actions by the federal, state, and local governments and
private organizations to address specific needs of Native
Hawaiians.
The Senate and House bills that are being considered today
would begin this process of restoring self-governance to Native
Hawaiians so they may better address their social, economic and
cultural needs.
ii. the reconciliation process under public law
103-150
In 1993, Congress enacted a Joint Resolution to acknowledge
the 100th anniversary of the overthrow of the Kingdom of Hawaii
and to apologize to the Native Hawaiian people for the role of
the United States in that overthrow. In the Joint Resolution,
Congress acknowledged that the overthrow of the Kingdom
``resulted in the suppression of the inherent sovereignty of
the Native Hawaiian people,'' that ``the indigenous Hawaiian
people never directly relinquished their claims to their
inherent sovereignty as a people or over their national lands
to the United States,'' and that ``the Native Hawaiian people
are determined to preserve, develop and transmit to future
generations their ancestral territory, and their cultural
identity in accordance with their own spiritual and traditional
beliefs, customs, practices, language, and social
institutions.'' Pub. 103-150 (S.J. Res. 19), 107 Stat. at 1512,
1513 (1993). The Joint Resolution calls upon the President to
promote further reconciliation between the United States and
the Native Hawaiian people.
In March 1999, Senator Akaka wrote to the Attorney General,
requesting that an office by designated within the Department
of Justice to work in cooperation with the Department of the
Interior to promote reconciliation between the United States
and the Native Hawaiian people. The Attorney General designated
the Office of Tribal Justice to work with the Department of the
Interior on the Reconciliation Process. In December 1999, the
Interior Department Assistant Secretary for Policy, Management
and Budget and the Director of the Office of Tribal Justice
visited Native Hawaiian sites and held a series of meetings
with the Native Hawaiian people to promote reconciliation.
The site visits demonstrated to the Interior-Justice
delegation the continuing, distinctly native character and
culture of the Native Hawaiian people. The delegation visited
Aha Punana Leo, a Native Hawaiian language immersion school on
the Island of Hawaii. They were greeted by Native Hawaiian
students with traditional Native Hawaiian songs, and they
toured the campus grounds, which included areas planted with
Taro, the traditional Native Hawaiian staple, and a fish
hatchery, reflecting traditional aquaculture. Students had also
planted native trees and plants on the campus to establish a
conservation area. On the Island of Kauai, the delegation met
with Native Hawaiian parents and students at Ni'ihau, a school
run by Native Hawaiian teachers from Ni'ihau and Kauai. The
Ni'ihau parents explained that their children learned Hawaiian
as a first language in the home, so the focus at the school was
on teaching the students to speak, read, and write English to
ensure that the children are able to interact with non-Natives
when they travel to neighboring islands. On the Island of
Molokai, the delegation visited a Native Hawaiian group that is
restoring a fish pond that is hundreds of years old for
subsistence use. On Molokai, the delegation met with a Native
Hawaiian kindergarden class, where all of the students are
fluent in both Hawaiian and English, and visited with Native
Hawaiian kupuna (elders), who explained the importance of being
raised in a Hawaiian Homestead community in terms of language
and cultural preservation. The delegation also met with and
visited a number of Native Hawaiian organizations, including:
the Alu Like, the Native Hawaiian Education advocacy
organization; members of Native Hawaiian organizations
advocating for self-governance; a Native Hawaiian Health Care
Center; the Kamehameha schools; Hawaiian Home Land communities
and land areas on Kauai, Oahu, and Maui; and several other
distinctly Native Hawaiian communities. In addition, the
delegation held public meetings and heard statements from
several hundred Native Hawaiians.
Throughout these delegation site visits and public
meetings, two things were made clear. First, the Native
Hawaiians and a distinctly native community with a vibrant
culture, traditions, and language and active social and
political organizations. We learned from Native Hawaiians that
Hawaiian Home Land settlements helped to maintain Hawaiian
language and culture, which was particularly important from the
1920s through the 1960s when the use of the Native Hawaiian
language and the practice of Native Hawaiian culture were often
discouraged by state institutions. We also learned that since
the 1960s, a number of Native Hawaiian advocacy groups have
actively promoted Hawaiian language and culture and these
efforts have gone hand-in-hand with efforts to enhance Native
Hawaiian self-governance. To foster these efforts, the Native
Hawaiian people maintain both social and quasi-governmental
institutions, such as the Native Hawaiian Civic Clubs, Alu
Like--the Native Hawaiian education organization, Papa Ola
Lokahi--the Native Hawaiian health care organization, Native
Hawaiian schools, and Native Hawaiian traditional justice
programs, among others.
Second, the delegation heard the clear call of the Native
Hawaiian people for self-governance. A majority of Native
Hawaiians, from whom the delegation heard, support increased
self-governance over their lands, resources, and affairs.\1\
Some of the critical subjects that the Native Hawaiian people
identified are increased control of Native Hawaiian lands and
resources, education programs, health care delivery, Native
Hawaiian housing, and an increased ability to engage the
Federal Government in an ongoing dialogue concerning Native
Hawaiian issues.
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\1\ While most Native Hawaiians appear to support increased Native
Hawaiian control over native lands, resources, and affairs within the
framework of Federal law, some members of the Native Hawaiian community
have called for restoration of the Kingdom of Hawaii or another form of
independence from the United States. The Interior-Justice delegation
explained that its mission was to promote reconciliation within the
framework of Federal law, and the Reconciliation Process does not have
any bearing or implication concerning international law matters.
---------------------------------------------------------------------------
iii. comments on s. 2899 and h.r. 4904
The overthrow of the Kingdom of Hawaii frustrated the right
of Native Hawaiians to control their own affairs. While
Congress has enacted a number of measures to promote the
welfare of the Native Hawaiian people, and Native Hawaiians
have themselves worked to maintain their own distinct
community, culture, language, and social and political
institutions, they have not been afforded a clear opportunity
to control their own affairs since 1893. These bills would
enable the Native Hawaiians in reorganizing their own
representative governing body, which will promote control over
their own affairs.
A. Goals of this legislation
It is evident from the documentation, statements, and views
received during the Reconciliation Process undertaken by the
Interior-Justice delegation 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. For generations, the United
States has recognized the unique relationship that exists
between the United States and the Native Hawaiians, and has
promoted the welfare of Native Hawaiians as an indigenous
people within our Nation through legislation, administrative
action and policy statements. The proposed legislation, by
clarifying the political status of Native Hawaiians, would
extend to Native Hawaiians the right of self-governance over
their cultural resources and internal affairs.
The proposed process of reorganizing a Native Hawaiian
governing body has precedent in Federal legislation promoting
self-governance for American Indian and Alaska Native peoples.
The government-to-government relationship that exists between
the United States and American Indian and Alaska Native
communities is firmly established in federal law and policy.
From its earliest days, the United States recognized the
sovereign status of Indian tribes. Indian tribes were
independent self-governing societies long before their contact
with European nations. See National Farmers Union Ins. Co. v.
Crow Tribe of Indians, 471 U.S. 845, 851 (1985); F. Cohen,
``Handbook of Federal Indian law,'' 229 (Strickland ed. 1982).
The retention of inherent sovereignty forms the basis for the
exercise of tribal power. Today American Indian tribes and
Alaska Native villages and corporations control many programs
affecting their communities, including, for example, programs
affecting their lands and natural resources, schools and
colleges, health, housing, water, sewer, and sanitation
services, public safety, and transportation infrastructure on
native lands. In addition, acknowledged governmental leaders
facilitate the government-to-government relationship, which
enables tribal governments to advocate effectively for their
community interests.
The proposed bills respond to the call of the Native
Hawaiian people for increased self-governance within the
framework of domestic Federal law. It recognizes that Native
Hawaiians were a elf-governing people prior to contact with the
European nations, and that the clarification of their political
status vis-a-vis the United States is a legitimate exercise of
Congress' Indian affairs power. The reorganization of a Native
Hawaiian governing body that the bill affords the Native
Hawaiian people to constitute could assist the Native Hawaiians
to better address their community needs and goals in the
context of federal law, and could facilitate the government-to-
government relationship between the Federal Government and the
Native Hawaiian community. Enhancing the government-to-
government relationship between the Native Hawaiians and the
United States could ensure that the Native Hawaiian people have
greater control over activities affecting their rights and
resources. See Executive Memorandum on Government-to-Government
Relations with Native American Tribal Governments (April 29,
1994).
B. Findings
The bills' legislative findings establish Congress' intent
to exercise authority pursuant to its Indian affairs power.
Section 1(1) states that ``the Constitution vests Congress with
the authority to address the conditions of the indigenous,
native peoples of the United States.'' Subsections (2) and (3)
find that the Native Hawaiian people are an aboriginal,
indigenous, native people with a special trust relationship to
the United States and that Congress has legislated on behalf of
the Native Hawaiian people as such. The legislative findings
concerning the Hawaiian Homes Commission Act are important
because they reflect an early congressional effort to promote
the welfare of the Native Hawaiian people by fostering the
continuation of traditional Native Hawaiian agricultural
endeavors on aboriginal lands under the protection of Federal
law. The HHCA embodies a congressional determination that the
Native Hawaiians, as defined in that Act, are an indigenous,
aboriginal people under the protection of the United States.
The legislative findings also reflect the fact that the Native
Hawaiian people today maintain a continuing, distinctly Native
Hawaiian culture, language, social and political institutions,
and community. These policy declaration make clear that
Congress intends to reaffirm the right of Native Hawaiians to
self-governance, within the framework of Federal law, and
intends to continue to promote reconciliation between the
United States and the Native Hawaiian people.
C. Definition of Native Hawaiian
In modern Federal legislation dealing with American Indians
Alaska Natives, Congress commonly relies on a tribe's
determination of its own membership. However, because the
Native Hawaiian governing body has not yet been reorganized, an
interim Federal law definition of ``Native Hawaiian'' is
necessary for the operation of the legislation.
We have several comments on the definition of ``Native
Hawaiian'' set forth in section 2(6), and section 7. First, the
Department finds it important that the definition includes only
those Native Hawaiians who voluntarily choose to affiliate with
the Native Hawaiian governing body. Section 7(a)(1)(A) does
exactly this by establishing a roll that includes the names of
``the adult members of the Native Hawaiian community who wish
to become members of a Native Hawaiian governing body.''
Second, the interim definition of Native Hawaiian set forth
in section 7(a) ties membership to ``lineal descendants of the
aboriginal, indigenous, native people who resided in the
islands that now comprise the State of Hawaii on January 1,
1893, and who occupied and exercised sovereignty in the
Hawaiian archipelago.''
The Supreme Court's decision in Rice v. Cayetano, 120 S.
Ct. 1044 (2000) left open the question ``whether Congress may
treat the native Hawaiians as it does the Indian tribes.''
Rice, 120 S. Ct. at 1057. Accordingly, in invoking its
established constitutional authority with respect to Indian
Tribes in the present context--namely, by providing Native
Hawaiians with much the same opportunity to reorganize and
establish a self-governing body that Congress has furnished to
the Indian Tribes elsewhere in the United States that the Court
referred to--it would make the most sense to adopt an interim
definition that draws upon past practices under Congress's
Indian affairs power.
Thus, we recommend an alternative interim definition that
references the Hawaiian Homes Commission Act (HHCA), Pub. L.
No. 67-34, 42 Stat. 108 (1921). There are several reasons for
this recommendation. First, the HHCA was itself an exercise of
Congress' Indian affairs power not long after annexation, and
it thus represents an established Federal law process for
determining who is a Native Hawaiian for federal purposes. See
H.R. Rep. 839, 66th Cong., 2d Sess. 4 (1920) (statement of
Secretary Lane expressly mentioning the trust relationship that
exists between the United States and Native Hawaiians). Second,
the HHCA presents a definition that is tied to those Native
Hawaiians who are eligible to reside on distinctly native
Hawaiian lands, and which can reasonably serve as an indication
of those Native Hawaiians who maintain close ties to the Native
Hawaiian community. Third, insofar as lineal descendancy is
concerned, this definition traces to 1778, the date of European
contact, rather than 1893, after the arrival of Europeans and
Americans. Finally, the Department of Hawaiian Home Lands
maintains a record keeping system regarding eligibility for
HHCA lands, which will make the interim reorganizational
process more definitive and thus less complicated. This
recommendation is intended to ensure that this legislation
serves as an enduring measure to provide a strong foundation
for Native Hawaiian self-governance within the framework of
federal law.
Accordingly, we recommend the following interim definition
of the term Native Hawaiian:
A Native Hawaiian is any person:
(a)(i) who is eligible to hold Hawaiian Home lands as
a Native Hawaiian directly or by devise under the
Hawaiian Homes Commission Act, Public Law 67-34, 42
Stat. 108, as amended, and (ii) who voluntarily
affiliates with the Native Hawaiian people as a
political community; or
(b)(i) who is a lineal descendant of a Native
Hawaiian who is or was eligible to hold Hawaiian Home
Lands directly or by devise under Public Law 67-34, 42
Stat. 108, as amended, (ii) who is recognized by the
Native Hawaiian community as a Native Hawaiian, and
(iii) who voluntarily affiliates with the Native
Hawaiian people as a political community.
Finally, it is important to note that the purpose of the
interim definition is to provide a means of implementing this
legislation, which first seeks to establish a Native Hawaiian
Interim Governing Council. Once that is accomplished, the
Native Hawaiian people may then determine their own membership
just as other native communities. A tribe's ``right to define
its own membership for tribal purposes has long been recognized
as central to its existence as an independent political
community.'' Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72
n.32 (1978). Section 7(c)(7)(D) expressly states that the
organic documents of the governing body will vest it with the
power to ``determine the membership in the Native Hawaiian
governing body.''
D. Transfer of authority over HHCA and ceded lands trust to the Native
Hawaiian governing body
Section 9(a) of the bills reaffirms the delegation of
authority by the United States to the State of Hawaii over the
HHCA in Hawaii's Admissions Act. Section 9(b) then authorizes
the United States to negotiate an agreement between the State
and the Native Hawaiian governing body that would transfer
authority over ``lands, resources, and assets dedicated to
Native Hawaiian use under existing law'' to the Native Hawaiian
governing body. We support the premise of providing the Native
Hawaiian governing body with primary authority over these
programs.
However, we recommend an alternative provision that would
authorize the State and the Native Hawaiian governing body to
negotiate a transfer of authority over governmental services
provided by the State to the Native Hawaiian governing body,
subject to the approval of the Secretary. This alternative
provision would better serve the Native Hawaiian community
because the State is, at present, the administrator of the HHCA
and the ceded lands, trust, not the United States. Our
alternative provision would also provide express protection for
the justified expectations of Native Hawaiians under the HHCA.
conclusion
In conclusion, the Department of Justice generally
supports, S. 2899 and H.R. 4904, and is committed to working
closely with the Native Hawaiian people and the Congress, upon
enactment of this legislation, to address successfully the
steps to Federal recognition, self-determination, and self-
governance for the Native Hawaiian people. There are a number
of prospective matters that the Federal Government may have to
work out with the Native Hawaiian governing body and the State
of Hawaii, through future legislation. These challenges may
include:
Potential land claims that Native Hawaiians may
assert against the United States, the State of Hawaii,
or private landowners;
The nature and extent of the rights, obligations and
benefits in extending Federal recognition to Native
Hawaiians under the Native American Indian statues;
The Federal Government's trust and fiduciary
responsibilities for any federal lands that may be
transferred to the Native Hawaiian community; and
The relative responsibilities of the Native Hawaiian
community and the State of Hawaii and its local
governments in providing schools, law enforcement, and
other public services.
The the permission of the Committees, the Department
intends to supplement this testimony with additional views on
S. 2899 and H.R. 4904 before the record is closed. Once again,
thank you for this opportunity to present views on this
important legislation.
CHANGES IN EXISTING LAW
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee finds that
enactment of S. 2899 will not effect any changes in existing
law.