MAZIE K. HIRONO

2^ND^ DISTRICT, HAWAI\`I

\-\-\-\--

MEMBER OF CONGRESS

**Congress of the United States**

**House of Representatives**

**Washington, DC 20515**

**Statement of Congresswoman Mazie K. Hirono of Hawaii**

**in the U.S. House of Representatives**

**in support of H.R. 835, the Hawaiian Homeownership Opportunity Act of
2007**

**March 27, 2007**

Mr. Chairman:

I rise in strong support of H.R. 835, the Hawaiian Homeownership
Opportunity Act of 2007, and ask for my colleagues' support of the bill.

When we considered this bill last week under suspension of the rules, I
noted that H.R. 835 reauthorizes the Hawaiian Homelands Homeownership
Act of 2000. The Act assists the State of Hawaii's Department of
Hawaiian Home Lands (DHHL) to provide opportunities for homeownership
for low-income native Hawaiians. The bill in no way addresses the
question of whether or not Native Hawaiians should be recognized as a
sovereign entity akin to Alaska Natives or American Indians.

During debate on the bill last Wednesday, no member came to the floor to
speak in opposition to the bill. In fact, the gentleman from Arizona,
who managed the time, expressed support for the bill. Unfortunately,
either during the debate or afterward, emails were sent to members
containing at least two erroneous assertions: first, that the bill is
unconstitutional and second, that this bill "would confer on Native
Hawaiians an arrangement like that between the federal government and
American Indian tribes." Opponents then compounded the error by citing
the [Rice]{.underline} v. [Cayetano]{.underline} voting rights Supreme
Court decision in support of their broad assertions.

As to the first assertion, the constitutionality of any measure must be
decided by the courts and, clearly, the courts have not opined on the
constitutionality of this bill. As to the second assertion, there is
nothing in the bill that speaks to creating a political relationship
between Native Hawaiians and the federal government akin to the
relationship between the federal government and American Indian tribes.

This bill, which promotes home ownership---a goal that all of us can
support in bipartisan fashion, has been targeted for defeat by opponents
who are misreading the bill as well as case law.

I was a member of the Cayetano administration in Hawaii and sat in the
Supreme Court when arguments in the Rice case were heard. It may
interest some of you to know that one of the lawyers arguing the State
of Hawaii's case was John Roberts, who is now Chief Justice of the
Court.

The central issue in the [Rice]{.underline} v. [Cayetano]{.underline}
case was the narrow question of whether the State of Hawaii could hold
an election for trustees of the Office of Hawaiian Affairs where only
Native Hawaiians could vote. In holding that the state could not so
limit these elections, the majority opinion of the Court deliberately
avoided the question of whether or not Native Hawaiians deserved the
same rights of self-determination granted to American Indians and Alaska
Natives.

Nothing in the Rice decision holds that programs that benefit Native
Hawaiians are unconstitutional. As previously noted, the majority Court
decision [did not]{.underline} call into question the trust relationship
between the U.S. government and the Native Hawaiian people; it did not
strike down the Office of Hawaiian Affairs or any other program
benefiting Native Hawaiians as unconstitutional. It was a very focused
decision that said that state-financed elections could not deny the
right to vote on account of race. While I disagree with the
[Rice]{.underline} v. [Cayetano]{.underline} decision, because Hawaii
was not using a racial classification in limiting votes but was seeking
to address the inherent right to self-determination of the Native
Hawaiian people, the legal status of Native Hawaiians will not be
decided by the bill before us today.

The majority of citizens of the State of Hawaii view Native Hawaiians as
the indigenous people of Hawaii who deserve the same rights of self
determination as other indigenous peoples of the United States. The
Hawaiian Kingdom was overthrown with the assistance of the U.S. Marines,
her Queen imprisoned, and its people marginalized by the government that
was established by American businessmen and planters.

While the entire Hawaii Congressional delegation, Hawaii's governor (who
happens to be a Republican), and the Hawaii Legislature, support
self-determination for Native Hawaiians, that is not the subject of the
bill before us today. My colleague and I have introduced H.R. 505, the
Native Hawaiian Government Reorganization Act of 2007, also know as the
Akaka bill. We can discuss the merits of self-determination for Native
Hawaiians when and if the Congress considers that bill.

The bill before us today provides assistance to a limited group of
native Hawaiians: those designated as beneficiaries under the Hawaiian
Homes Commission Act of 1921. That bill, in recognition of the desperate
poverty and displacement from the land of native Hawaiians, established
a homesteading program to place eligible native Hawaiians (those with at
least 50% Hawaiian blood) on lands in Hawaii designated for such
purpose. The law was passed at the urging of the Territory of Hawaii's
delegate to Congress, Prince Jonah Kuhio Kalanianaole. Some 200,000
acres were set aside for the purpose of providing native Hawaiians with
land. The 1921 Act of Congress has never been challenged in the Supreme
Court in the past 86 years.

With the passage of the Statehood Act of 1959, the control and
administration of the Hawaiian Homes Commission Act was transferred to
the newly formed State of Hawaii. The Department of Hawaiian Home Lands
was created in 1960 to administer the Hawaiian Homes Commission Act. The
mission of the Department is to "manage the Hawaiian Home Lands trust
effectively and to develop and deliver land to native Hawaiians."

Despite the good intentions of the Congress, progress in meeting the
goal of delivering land to native Hawaiians was slow. Most of the
Hawaiian Homelands were located in areas far from jobs and
infrastructure like roads and utilities were nonexistent. Many
individuals were on the waiting list for more than 30 years.

The Hawaiian Homelands Homeownership Act of 2000 has provided the
Department of Hawaiian Homelands with much-needed resources to expand
opportunities for homeownership among low-income native Hawaiians.
Especially critical has been the ability to use these funds to develop
the infrastructure that makes placing homes on these properties
possible.

Because the issue of Native Hawaiian rights as a native people lies at
the heart of the opposition to this bill, I would like to quote
attorneys H. Christopher Bartolomucci, Viet Dinh, and Neal Katyal who
stated in a February '07 legal document prepared for the Office of
Hawaiian Affairs:

> "congressional legislation dealing with indigenous groups is
> political, not racial, in character and therefore is neither
> discriminatory nor unconstitutional. [Rice]{.underline} v.
> [Cayetano]{.underline}, 528 U.S. 495 (2000), specifically declined to
> address whether 'native Hawaiians have a status like that of Indians
> in organized tribes' and 'whether Congress may treat native Hawaiians
> as it does the Indian tribes'."[^1]

Bartolomucci, Dinh, and Katyal further noted that

> "The Supreme Court has acknowledged the Congress' plenary
> power---inherent in the Constitution and explicit in the Indian
> Commerce Clause, art. I, § 8, cl. 3, and Treaty Clause, art II, § 2,
> cl. 2---to legislate regarding Native American affairs, and Congress
> has used that power to restore the relationship with tribal
> governments terminated by the United States. In 1954, Congress
> terminated the Menominee tribe in Wisconsin. In 1973, Congress enacted
> a law restoring the federal relationship with the Menominee and
> assisting in its reorganization. . . . Congress's decision to treat a
> group of people as a native group, and to use its broad Indian affairs
> power to pass legislation regarding that group, is a political
> decision---one that courts are not likely to second-guess. Indeed, the
> Supreme Court has said that so long as Congress' decision to treat a
> native people as a group of Native Americans is not 'arbitrary,' the
> Courts have no say in the matter"[^2]

As previously mentioned, we can and should have the debate on whether or
not Native Hawaiians should enjoy the rights to self-determination given
to other Native American groups when that bill is squarely before us in
H.R. 505. Native Hawaiians deserve no less.

This bill before us today simply provides native Hawaiians who are
eligible for homesteads under the Hawaiian Homes Commission Act passed
by Congress with financing tools to allow them to realize for their
families the dream of home ownership, which otherwise would be available
to very few of them.

I respectfully urge my colleagues to oppose the motion to recommit this
bill and to support final passage.

Mahalo nui loa.

[^1]: H. Christopher Bartolomucci, Viet D. Dinh, and Neal K. Katyal,
    "The Authority of Congress to Establish a Process for Recognizing a
    Reconstituted Native Hawaiian Governing Entity." February 26, 2007,
    p. 2.

[^2]: Ibid, page 1-2.